[2015] 13 S.C.R. 1 SUPREME COURT ADVOCATES-ON-RECORD A ASSOCIATION AND ANOTHER v. UNION OF INDIA (Writ Petition (Civil) No. 13 of 2015) OCTOBER 16, 2015 [JAGDISH SINGH KHEHAR, J. CHELAMESWAR, MADAN B. LOKUR, KURIAN JOSEPH, ADARSH KUMAR GOEL, JJ.] B c Constitution (Ninety-ninth Amendment) Act, 2014 - Collegium system of appointment of Judges to the Supreme Cowt, 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- New scheme contemplated D for replacing the Collegium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission E Act, 2014-NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; ·(b) two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, F to be nominated as Members - Constitution (Ninety-ninth Amendment) Act, 2014 - Va/idjty of- Held (per order of the Court): It is unconstitutional and void - National Judicial Appointments Commission Act, 2014 - Judiciary- Higher Judiciary- Constitutional Courts -Appointment and transfer G of Judges - Procedure . National Judicial Appointments Commission Act, 2014 - Collegium system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; h 2 SUPREME COURT REPORTS [2015] 13 S.C.R. A and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated for replacing the Col/egium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 B read with the Nationai Judicial Appointments Commission Act, 2014- NJAC composed of: (a) the Chief Justice of India, · Chairperson, ex officio; (b} two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law C and Justice as Member, ex officio; (d} two eminent persons, to be nominated as Members - National Judicial Appointments Commission Act, 2014 - Validity of - Held (per order of the Court): It is unconstitutional and void - 0 Constitution (Ninety-ninth Amendment) Act, 2014- Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges- Procedure. Judiciary - Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges- Procedure- Col/egium E 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- New scheme contemplated for replacing the Collegium system - Six-member National Judicial F Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of G Supr~me Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, to be nominated as Members- Held (per order of the Court): The collegium system, as existing prior to the Constitution H SUPREME COURT ADVOCATES-ON-RECORD 3 ASSOCIATION v. U.0.1. (Ninety-ninth Amendment) Act, 2014, declared to be A operative - However, to consider introduction of appropriate measures, if any, for an improved working of the "collegium system", matter listed on a subsequent date ..:. Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. B Judiciary ~ Higher judiciary - Constitutional Courts - Selection and appointment of Judges - Parliament, if empowered to provide for an alternative procedure - Held (per Khehar, J.): It is open to the Parliament, while exercising C its power under Article 368, to provide for some other alternative procedure for the selection and appointment of Judges to the higher judiciary, so long as, the attributes of "separation of powers" and "independence of the judiciary", which are "core" components of the "basic structure" of the D Constitution, are maintained. Constitution of India -Amendment to - Scope - Held (per Khehar, J.): The "basic structure" of the Constitution is inviolable ~ The Constitution cannot be amended so as to negate any "basic features" thereof-Also, if a challenge is E raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. Constitution of India - Art. 368 - Constitutional Amendments - Will of the People and Judicial Review - Limitations on the amending power - Appointment and F transfer of Judges in higher judiciary- Broad based Judicial Appointment Commission comprising of members of the judiciary, the executive and eminent! important persons from public life 'proposed to be constituted, to replace the prevailing G procedure, contemplated under Articles 124(2) and 217(1)- To achieve the purported objective, Articles 124 and 217 inter a/ia amended, and Articles 124A, 1248 and 124C inserted in the Constitution, through the Constitution (99th Amendment) Act, by following the procedure contemplated H 4 SUPREME COURT REPORTS [2015] 13 S.C.R. A under Article 368(2), more particularly, the proviso thereunder - Simultaneously therewith, the Parliament enacted the NJACAct- Said Constitutional amendment and legislative enactment, challenged before Supreme Court - Held (per Khehar, J.): There are declared limitations, on the amending B . power conferred on the Parliament, which cannot be breached - If a constitutional amendment breaches the "core" of the Constitution or destroys its "basic or essential features" in a manner which was patently unconstitutional, it would have crossed over forbidden territory - This aspect, would C undoubtedly fall within the realm of judicial review - In the above view of the matter, the impugned constitutional amendment, as a/so, the NJAC Act, would be subject to judicial review on the touchstone of the "basic structure" of 0 the Constitution, and the parameters laid down by the Supreme Court in that behalf, even though the impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority, and notwithstanding the ratification thereof by as many as twenty- E eight State Assemblies - Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments· Commission Act, 2014 . . Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges - Independence of F judiciary - Primacy conferred on the Chief Justice of India and his col/egium of Judges - Held (per Khehar, J.): In the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles G 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted) - Therefore, when a question with reference to the selection and appointment (as also, transfer) H SUPREME COURT ADVOCATES-ON-RECORD 5 ASSOCIATION v. U.0.1. of Judges to the higher judiciary is raised, alleging that the A "independence of the judiciary" as a "basic feature/structure" o~ the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached- Then B alone, would it be possible to conclude, whether or not, the "independence of the judiciary" as an essential "basic feature" of the Constitution, had been preserved (-and had not been breached}- Constitution of India -Articles 124, 21 land 222. c Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Procedure - New scheme contemplated for replacing the Col/egium system - National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) D Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC to comprise of members of the judiciary, the executive and eminent/important persons from public life - Whether as a matter of practicality, the impugned constitutional amendment can be consi.dered to E have sustained, primacy in the matter of decision making, under the amended provisions of Articles 124, 217 and 222, in conjunction with the inserted provisions of Articles 124A to 124C, with the judiciary- Held (per Khehar, J.): Primacy of the judiciary would not be considered to have been sustained, F merely by ensuring that the judicial component in the membership of the NJAC, was sufficiently capable, to reject the candidature of an unworthy nominee - In the matter of primacy, the judicial component of the·NJAC, should be competent by itself, to ensure the appointment of a worthy· G nominee, as well - Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court (next to the Chief Justice of India), consider a nominee to be worthy for appointment to the higher H 6 SUPREME COURT REPORTS [2015] 13 S.C.R. A judiciary, the concerned individual may still not be appointed, if any two Members of the NJAC. opine otherwise- This would be out-rightly obnoxious, to the primacy of the judicial component- The magnitude of the instant issue, is apparent from the fact that the two "eminent persons" ("lay persons, B according to the Attorney General), could defeat the unanimous recommendation made by the Chief Justice of India and the two senior most Judges of the Supreme Court, favouring the appointment of an individual under consideration - Without any doubt, demeaning primacy of C the judiciary, in the matter of selection and appointment of Judges to the higher judiciary - The instant issue, is demonstrably far more retrograde, when the Union Minister in charge of Law and Justice also supports the unanimous 0 view of the judicial component, because still the dissenting voice of the "eminent persons" would prevail - It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile - Articles 124A(1)(a) and (b) do not provide for an adequate E' representation in the matter, to the judicial component, to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the "basic structure" of the Constitution of lndia- F Thus viewed, the "basic structure" of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC - The impugned constitutional amendment, being ultra vires the "basic G structure" of the Constitution, is liable to be set aside - Constitution of India -Arts. 124A (1 )(a) and (b). H Judiciary - Higher Judiciary - Constitutional Courts - Appointment of Judges - Procedure - New scheme contemplated - National Judicial Appointments Commission SUPREME COURT ADVOCATES-ON-RECORD 7 ASSOCIATION v. U.0.1. (NJAC) set up - NJAC to comprise of members of the A judiciary, the executive and eminenVimportant persons from public life - Participation of the political-executive - If justified - Presence of Union Minister in charge of Law and Justice, as an ex officio Member of the NJA C - Challenge to - Held (per Khehar, J.): The political-executive, as far as possible, B should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary - Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication - Reciprocity, and feelings of pay back to the political- C executive, would be disastrous to "independence of the judiciary" - Since the executive has a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in 0 charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable - Consequent upon the participation of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support, may not be able to resist or repulse a plea of conflict E of interest, raised by a litigant, in a matter when the executive has an adversarial role- In the NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary - It may be difficult for Judges approved by the NJAC, to F resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the /is - The above, would have the inevitable effect of undermining the "independence of the judiciary", even where such a plea is repulsed - Therefore, the rote· assigned to the G political-executive, can at best be limited to a collaborative participation, excluding any role in the final determination - Mere participation of the Union Minister in charge of Law and Justice, in the final process of selection, as an ex officio H 8 SUPREME COURT REPORTS [2015] 13 S.C.R. A Member of the NJA C, would render the amended provision of Article 124A(1 )(c) as ultra vires the Constitution, as it impinges on the principles of "independence of the judiciary" and "separation of powers" - In the process of evolution of societies across the globe, the trend is to free the judiciary B from executive and political control, and to incorporate a system of selection and appointment of Judges, based purely on merit- For it is only then, that the process of judicial review will effectively support nation building - Progression of the concepts of "independence of the judiciary" and 'Judicial C review" were now being recognized the world over - The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an obvious reality - In recognition of the above trend, there cannot be any greater and further participation of the D executive, than that which existed hitherto before -And in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and Third Judges cases - It is therefore imperative to conclude, that the participation E of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none - Leader of the single largest Opposition Party in the House F of the People), in the selection of"eminent persons", would be a retrograde step, and cannot be accepted - Constitution of India -Art. 124A(1)(c). Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges - Procedure - G Composition and structure of NJAC- NJAC to comprise of members of the judiciary, the executive and two "eminent persons""- Issue arising out of non-description of qualifications and disqualifications of "eminent persons" - Two "eminent persons" to be nominated to the NJA C vested H SUPREME COURT ADVOCATES-ON-RECORD 9 ASSOCIATION v. U.0.1. with a power of veto - Propriety of- Held (per Khehar, J.): A The issue of description of the qualifications (-perhaps, also the disqualifications) of "eminent persons" is of utmost importance, and cannot be left to the free will and choice of the nominating authorities, irrespective of the high constitutional positions held by them- Specially so, because B the two "eminent persons" comprise of 1/3rd strength of the NJA C, and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC-Article 124A(1 )(d) is liable to be set aside and struck down, for having not laid C down the qualifications of eligibility for being nominated as "eminent persons", and for having left the same vague and undefined - It is even otherwise difficult to appreciate the logic of including two "eminent persons': in the six-Member 0 NJAC - It is difficult to appreciate what inputs the "eminent persons", satisfying the qualification depicted by the Attorney General, would render in the matter of selection and appointment of Judges to the higher judiciary- The sensitivity of selecting Judges is so enormous, and the consequences E of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may we/I lead the nation into a chaos of sorts - It is also difficult to appreciate the wisdom of the Parliament, to F introduce two Jay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto- The second proviso under s.5(2), and s.6(6) of the NJAC Act, clearly mandate, that a person nominated to be considered for G appointment as a Judge of the Supreme Court, and persons being considered for appointment as Chief Justices and Judges of High Courts, cannot be appointed, if any two Members of the NJA C do not agree to the proposal - In the H 10 SUPREME COURT REPORTS [2015] 13 S.C.R A scheme of the selection process of Judges to the higher judiciary, contemplated under the impugned constitutional amendment read with the NJAC Act, the two "eminent persons" are sufficiently empowered to reject all recommendations, just by themselves - Not just that, the B two "eminent persons" would also have the absolute authority to reject all names unanimously approved by the remaining four Members of the NJAC - That would obviously include the power to reject, the unanimous recommendation of the entire judicial component of the NJA C - The vesting of such C authority in the "eminent persons", is clearly unsustainable, in the scheme of ."independence of the judiciary" -Article 124A(1 )(d) is liable to be set aside and struck down as being violative of the "basic structure" of the Constitution - D Constitution of India-Art. 124A(1 )(d)- Constitution (Ninety ninth Amendment) Act, 2014 - National Judicial . Appointments Commission Act, 2014 - Second proviso u/s. 5(2) ands. 6(6). Judiciary - Higher judiciary - Constitutional Courts - E Appointment and transfer of Judges - Participation of the political-executive establishment- Role of the "civil society" in India - Held (per Khehar, J.): The Constitution does not . envisage the "spoils system" (also known as the "patronage system'?, wherein the political party which wins an election, F gives Government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power- It would be of utmost importance to shield judicial appointments, from any political executive interference, to preseNe the "independence of the G judiciary", from the regime of the spoils system - PreseNing primacy in the judiciary, in the matter of selection and appointment of Judges to the, higher judiciary would be a safe way to do so - It is difficult to hold that the wisdom of appointment of Judges, can be shared with the political- H SUPREME COURT ADVOCATES-ON-RECORD 11 ASSOCIATION v. U.0.1. executive- In India, the organic development of civil society, · A has not as yet sufficiently evolved - The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance- The present status ofthfj evolution of the "civil B society" in India, does not augur the participation of the political-executive establishment, in the selec;tion and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another - Higher judiciary, ·which is the savior of the C fundamental rights of the citizens of this country, by virtue of the constitutional responsibility assigned to it under Articles 32 and 226, must continue to act as the protector of the civil society- Constitution of India-Arts. 32 and 226. National Judicial Appointments Commission Act, 2014 - Functioning of the NJAC- Quorum for- Meeting of National Judicial Appointments Commission (NJAC), when valid - Strength required for valid decision making - Held (per D . Khehar, J): In case a statutory provision vests a decision E making authority in a body of persons witho_ut stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision making- On the same analogy therefore, a valid decision by such a body will necessitate a decision F by a simple majority of all the members of the body - If the . aforesaid principles are made applicable to the NJAC, the natural outcome would be, that a valid meeting of the NJA C must have at least four Members participating in a six Member NJAC - Likewise, a valid decision of the NJAC can G only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of ·the NJAC (three Members on either side, would not make up the simple majority) - Judiciary - Higher Judiciary - H 12 SUPREME COURT REPORTS [2015] 13 S.C.R. A Constitutional Courts -Appointment and transfer of Judges - Procedure. National Judicial Appointments Commission Act, 2014 - ss. 5(2) and 6(6) - Validity- Judiciary- Higher Judiciary Constitutional Courts -Appointment and transfer of Judges B - Power of veto vest~d in any two Members of the NJA C - . Held (per Khehar, J.): The power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciqry, in the matter of selection and appointment of C Judges to the higherjudiciary (as also theirtransfer)-ss.5(2) and 6(6) breach the "basic structure" of the Constitution, with reference to the "independence of the judiciary" and the "separation of powers" - ss. 5(2) and 6(6), therefore, liable to be declared as ultra vires the Constitution. o National Judicial Appointments Commission Act, 2014 - s. 5(1) - Appointment of the Chief Justice of India - Procedure - s.5(1) provided that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief.Justice of India, subject to the E condition, that he was considered "fit" to hold the office - Contention that the term "fit" had not been elaborately described and it was always open to the Parliament to purposefully define fitness, in a manner as would sub-serve the will of the executive and this could/would seriously affect F the "independence of the judiciary" - Held (per Khehar, J.): It was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India, in uncertain and ambiguous terms - It was imperative to express, the clear G parameters of the term "fit", with reference to the senior most Judge of the Supreme Court under s.5 - The term "fit" can be tailor-made, to choose a candidate far below in the seniority list- The position adopted by the Attorney General, H namely, that the term "fit" used in s.5(1) would be read to SUPREME COURT ADVOCATES-ON-RECORD 13 ASSOCIATION v. U.0.1. mean only " ... mental and physical fitness ... " is affirmed A and crystalised - If that is done, it would be legal and constitutional - However, if the position adopted ~reached the "independence of the judiciary'; in the manner suggested by the petitioners, the same would be assailable in Jaw. National Judicial Appointments Commission Act, 2014 8 - s. 5(2), first proviso - Validity of -Appointment of a High Court Judge - First proviso to s.5(2) providing that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge C shall be considered by NJAC - Held (per Khehar, J.):Undoubtedly, postulating "seniority" in the first proviso under s.5(2), is a laudable objective -And if seniority is to be supplemented and enmeshed with "ability and merit'; the most ideal approach, can be seen to have been adopted - 0 But what appears on paper, may sometimes not be correct in practice - Experience shows, that Judges to every High Court are appointed in batches, each batch may have just two or three appointees, or may sometimes have even ten or more individuals-A group of Judges appointed to one High E Court, will be separated from the lot of Judges appointed to another High Court, by just a few days, or by just a few weeks, and sometimes by just a few months- In the all India seniority of Judges, the complete batch appointed on the same day, to one High Court, will be placed in a running serial order (in F seniority) above the other Judges appointed to another High Court, just after a few days or weeks or months - Judges appointed later, will have to be placed en masse below the earlier batch, in seniority- If appointment of Judges to the Supreme Court, is to be made on the basis of seniority (as a G primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court-And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved H 14 SUPREME COURT REPORTS [2015] 13 S.C.R. A themselves able and meritorious as High Court Judges, they will have to be appointed one after the other, when vacancies of Judges arise in the Supreme Court - In that view of the matter, Judges from the same High Court would be appointed to the Supreme Court, till the entire batch is exhausted - B Judges from the same High Court, in the above situation where the batch comprised often Judges, will occupy a third of the total Judge positions in the Supreme Court- That would be clearly unacceptable - Consideration of Judges on the basis of their seniority, by treating the same as a primary C consideration, would adversely affect the present convention of ensuring represeritation from as many State High Courts, as is possible - The convention in vogue is, to maintain regional representation -Accordingly, the first proviso under 0 s. 5(2) is liable to be struck down and set aside. National Judicial Appointments Commission Act, 2014 - s.6(1) - Validity of-Appointment of a Judge of a High Court as Chief Justice of a High Court- s. 6(1) providing that NJAC shall recommend on the basis of inter se seniority of E High Court Judges and ability, merit and any other criteria of suitability as may be specified- Held (per Khehar, J.): s. 6(1) . has the same seniority connotation as expressed with reference to the first proviso under s.5(2) - For exactly the same reasons as noticed in the case of the first proviso under F s.5(2), based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court- s. 6(1) therefore liable to meet the same fate, as the first proviso under s.5(2); and is G liable to be struck down and set aside. National Judicial Appointments Commission Act, 2014 - s. 7 - Validity of- Appointment of Chief Justice of India or a Judge of the Supreme Court or, the Chief Justice of a High Court or the Judge of a High Court - s. 7 providing that the H President would make such appointments on SUPREME COURT ADVOCATES-ON-RECORD 15 ASSOCIATION v. U.0.1. · recommendations made by NJAC - The first proviso to s. 7 A providing that the President may require NJA C to reconsider recommendation made by it- Held (per Khehar, J.): It is not possible to accept that s. 7 by providing that the President could requite the NJAC to reconsider a recommendation made by it, would in any manner violate Articles 124(2) and B 217(1) (which mandate, that Judges would be appointed by the President on the recommendation of the NJAC)- It would .be improper to infer, that the action of the President, requiring the NJAC to reconsider its proposal, amounted to rejecting the proposal made by the NJAC - For, if the NJAC was to C reiterate the proposal made earlier, the President even in terms of Section 7, was bound to act in consonance therewith (as is apparent from the second proviso under s. 7 of the NJACAct). National Judicial Appointments Commission Act, 2014 - s. 8- Validity of- Functions of the Convener, with reference io NJA C - s. 8 provides for the Secretary to the Government D of India, in the Department of Justice, to be the convener of NJA C- It was contended that such an onerous responsibility, E · could not be left to the executive alone.it was imperative to exclude all executive participation in the proceedings of the NJAC-Held (per Khehar, J.): It has already been concluded, that the participation of the Union Minister in charge of L?W · and Justice, as a Member of the NJAC, as contemplated F under Article 124A(1 ), in the matter of appointment of Judges to the higher judiciary, would breach the concepts of "separation of powers" and the "independence of the judiciary", which are both undisputedly components of the "basic structure" of the Constitution of/ndia - For exaVide for a nevv process of selection C ·and appointment of Judges to the higherjudiciary by amending the existingprovisions. Naturallyt_herefore, when the amended · provl.sion postulating a different procedure is set aside, the original process of s~lectic;m arid appointment under the 0 · unamended provisions would revive. The above position also ·emerges from the legal position declated in the Koteswar Vittal Karnath case73 • 252. It is not possible for us to accept the inferential contentions, advanced at the hands of the learned cou·nsel for E . the respondents by pfacmg reliance on Sections 6, 7 and 8 of the General Clauses Act. We say so, because the contention · •ofthe learned Solicitor General was based on the assumption, that a judicial verdict setting aside an amendment, has the same effect as a repeal of an enactment through a legislation. F This ·is an unacceptable assumption. When a legislature amends or repeals an existing provision, its action is of its own free will, and is premised on well founded principles of interpretation, including the provisions of the General Causes Act. Not so when an amendment/repeal is set aside through a G judicial process. It is not necessary to repeat the consideration recorded in paragraph 250(ix) above. When a judgment sets aside, an amendment or a repeal by the legislature, it is but natural that the status quo ante, would stand restored. H 512 SUPREME COURT REPORTS [2015] 13 S.C.R. A 253. For the reasons recorded hereinabove, we are of the view, that in case of setting aside of the impugned Constitution (99th Amendment) Act, the provisions of the Constitution sought to be amended thereby, would automatically revive. B VI. CONCLUSIONS: 254. Article 124A constitutes the edifice of the Constitution (99thAmendment)Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the C amendments made to Articles 124, 1248, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments D Commission (NJAC). Its perusal reveals, that it is composed of the following: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of Supreme Court, next to the Chief E Justice of India- Members, ex officio; F (c) the Union Minister in charge of Law and Justice- Member, ex officio; (d) two eminent persons, to be nominated - Members. If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the hands of the learned counsel G for the rival parties, I have arrived atthe conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and H SUPREME COURT ADVOCATES-ON-RECORD 513 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] appointment of Judges, to the higher judiciary (as also transfer A of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of "independence of the judiciary". I have independently arrived atthe conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of B the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c)of Article 124A(1 ), in my view, impinges upon the principles of "independence of the judiciary", as well as, "separation of powers". It has also been concluded by me, that clause (d) of Article 124A(1)which provides for the C inclusion of two "eminent persons" as Members of the NJAC is ultra vi res the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the "basic structure" of the Constitution. In the above view of the matter, I D am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1 ), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck E down in its entirety, as being ultra vires the provisions of the Constitution. 255. The contention advanced !'It the hands of the respondents, to the effect, that the provisions of the Constitution which were sought to be amended by the F impugned constitutional amendment, would not revive, even if the challenge raised by the petitioners was accepted (and the Constitution (99th Amendment) Act, 2014, was set aside), has been considered under a separate head, to the minutest detail, in terms of the submissions advanced. I have concluded, that G with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored. H 514 SUPREME COURT REPORTS [2015] 13 S.C.R. A 256. The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A(1 ). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial B Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of the above, it was not essential for us, to have examined the constitutional vi res of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections C 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJACActare ultra viresthe provisions of the Constitution. VII. ACKNOWLEDGEMENT: 257. Before parting with the order, I would like to record D my appreciation for the ablest assistance rendered to us, by the learned counsel who addressed us from both the sides. I would also like to extend my deepest sense of appreciation to all the assisting counsel, who had obviously whole heartedly devoted their time and energy in the preparation of the case, E and in instructing the arguing counsel. I would be failing in my duty, if I do not express my gratitude to my colleagues on the Bench, as also, learned counsel who agreed to assist the Bench, during the summer vacation'. I therefore, express my gratefulness and F indebtedness to them, from the bottom of my heart. Note: The emphases supplied in all the quotations in the instant judgment, are mine. ORDER* G CHELAMESWAR, J. 1. Very important and far reaching questions fall for the consideration of this Court in this batch of matters. The constitutional validity of the Constitution (Niilety ninth Amendment) Act, 2014 and the National Judicial * Ed. Note: Pronounced by Hon'ble Mr. Justice J. Chelameswar for himself H and Hon'ble Mr. Justice Adarsh Kumar Goel. SUPREME COURT ADVOCATES-ON-RECORD . 515 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Appointments Commission Act, 2014 are under challenge. A 2. When these matters were listed for preliminary hearing on 21.04.2015, an objection was raised by Shri Fali S. Nariman, learned senior counsel appeciring for one of the petitioners, that it is inappropriate for Justice Jagdish Singh B Khehar to participate in the proceedings as the Presiding Judge of this Bench. The objection is predicated on the facts : Being the third senior most Puisne Judge of this Court, Justice Khehar is a member of the collegium propounded under the Second Judges case 1 exercising "significant c constitutional power" in the matter of selection of Judges, of this Court as well as High Courts of this country; by virtue of the impugned legislation, until he attains the position of being the third senior most Judge of this Court, Justice Khehar would cease to enjoy such pow~r; and therefore, there is a possibility D of him not being impartial. 3. When the objection was raised, various counsel appearing on behalf of either side expressed different viewpoints regarding the appropriateness of participation of Justice Khehar in these proceedings. We, therefore, called E upon learned counsel appearing in this matter to precisely state their respective points of view on the question and assist the Court in identifying principles of law which are relevant to arrive at the right answer to the objection raised by Shri Fali S. Nari man. 4. The matter was listed again on 22.04.2015 on which date Shri Nariman filed a brief written statement 2 indicating 1 Supreme Court Advocates-on-Record Association & Others v. Union of F India, (1993) 4 sec 441 G 2 The position of the Presiding Judge ori 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. H 516 SUPREME COURT REPORTS [2015] 13 S.C.R. A reasons which according to him make it inappropriate for Justice Khehar to preside over the present Bench. 5. On the other hand, Shri Arvind P. Datar, learned senior counsel appearing for one of the petitibners made elaborate B submissions explaining the legal principles which require a Judge to recuse himself from hearing a particular case and submitted that in the light of settled principles of law in this regard there is neither impropriety in Justice Khehar hearing these matters nor any need for him to do so. C 6. Shri Mukul Rohatgi, learned Attorney General very D vehemently opposed the suggestion of Shri Nariman and submitted that there is nothing in law which demands the recusal of Justice Khehar nor has the Union of India any objection to Justice Khehar hearing these batch of matters. 7. Shri Harish N. Salve and Shri K.K. Venugopal, learned senior counsel who proposed to appear on behalf of different States also supported the stand of the learned Attorney General and made independent submissions in support of the E conclusion. 8. After an elaborate hearing of the matter, we came to the unanimous conclusion that there is no principle of law which warrants Justice Khehar's recusal from the proceedings. We recorded the conclusion of the Bench in the proceedings dated F 22.04.2015 and indicated that because of paucity of time, the reasons for the conclusion would follow later3 3 Order dated 22.04.2015 insofar as it is relevant reads thus: "A preliminary objection, whether Justice Jagdish Singh Khehar should G 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. H Issue rule. " SUPREME COURT ADVOCATES-ON-RECORD 517 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 9. At the outset, we must record that each of the learned A counsel who objected to the participation of Justice Khehar in these proceedings anchored this objection on distinct propositions of law. While Shri Nariman put it on the ground of inappropriateness, Shri Santosh Paul invoked the principle of bias, on the ground of him having conflicting interests - one B in his capacity as member of the Collegium and the other in his capacity as a Judge to examine the constitutional validity of the provisions which seek to displace the Collegium system. In substance, some of the petitioners are of the opinion that Justice Khehar should recuse4• C 10. It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge. D 11. It all started with a latin maxim Nemo Judex in Re Sua which means literally- that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said "If a man be E . trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them. For without that, the controversies of men cannot be determined but by war. He therefore, said that is partial in judgment doth what in F him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war.". 12. Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled G "Judicial Recusal"5 traced out principles on the law of recusal ' 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. 5 R. Grant Hammond, Judicial Recusal: Principles, Process and Problems, (Hart Publishing, 2009). H 518 SUPREME COURT REPORTS (2015] 13S.C.R. A as developed in England in the following words :- B c D 'The central feature of the early English common law on recusal was both simple and highly constrained: a judge could only be disqualified for a direct pecuniary interest. What would today be termed 'bias', which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of judges, although it was not completely dismissed in relation to jurors. This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards . a party or because he was or h_ad been a party's advocate." He also pointed out that in contrast in the United States of America, the subject is covered by legislation. E 13. Dimes v. Proprietors of Grand Junction Canal, (1852) 10 ER 301, is one of the earliest.cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the matter. We are not concerned with the details of the dispute between F the parties to the case. Lord Chancellor Cottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour of the defendant company. A year later, Dimes discovered that Lord Chancellor G Cottenham had shares in the defendant company. He petitioned the Queen for her intervention. The litigation had a long and chequered history., the details of which are not material for us. Eventually, the matter reached the House of Lords. The House dismissed the appeal of Di_mes on the ground that H setting aside of the order of the Lord Chancellor would still SUPREME COURT ADVOCATES-ON-RECORD 519 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] leave the order of the Vice-Chancellor intact as Lord Chancellor A had merely affirmed the order of the Vice-Chancellor. However, the House of Lords held that participation of Lord Cottenham in the adjudicatory process was not justified. Though Lord Campbell observed: "No one can suppose that Lord Cottenham could be, in the remotest degree, Influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest .... This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence." 14. Summing up the principle laid down by the abovementioned case, Hammond observed as follows: "The 'no-pecuniary interest' principle as expressed in Dimes requires a judge to be automatically disqualified when there is neither actual bias nor even an apprehension of bias on the part of that judge. The fundamental philosophical underpinning of Dimes is therefore predicated on a conflict of interest approach." B c D E F 15. The next landmark case on the question of "bias" is Regina v. Gough, (1993)AC 646. Gough was convicted for G an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the Trial Court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the Trial Court that one of the jurors was a neighbour of the convict. The convict appealed to the Court of Appeal H 520 SUPREME COURT REPORTS [2015] 13 S.C.R. A unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibility of bias on her part and therefore the conviction is unsustainable. The Court of Appeal noticed that there are two lines of authority B propounding two different tests for determining disqualification c of a Judge on the ground of.bias: (1) "real danger" test; and (2) "reasonable suspicion" test. The Court of Appeal confirmed the conviction by applying the "real danger" test. 16. The matter was carried further to the House of Lords. 17. Lord Goff noticed that there are a series of authorities D which are "not only large in number but bewildering in their effect". After analyzing the judgment in Dimes (supra), Lord Goff held: "In such a case, therefore, not only is it irrelevant E that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. F The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand." In other words, where a Judge has a pecuniary interest, G no further inquiry as to whether there was a "real danger" or "reasonable suspicion" of bias is required to be undertaken. But in other cases, such an inquiry is required and the relevant test is the "real danger'' test. "But in other cases, the inquiry is directed to the H question whether there was such a degree of SUPREME COURT ADVOCATES-ON-RECORD 521 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] . possibility of bias on the part of the tribunal that the A court will not allow the decision to stand. Such a question may arise in a wide variety of circumstances. These include .... cases in which the member of the tribunal has an interest in the outcome of the proceedings, which falls short of a direct pecuniary interest. Such interests may vary widely in their nature, in their effect, and in their relevance to the subject matter of the proceedings; and there is ho rule .... that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts. " 18. The learned Judge examined various important cases on the subject and finally concluded: "Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him." 19. Lord Woolf agreed with Lord Goff in his separate judgment. He held: · . "There is only one established special cate19ory and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand B c D E F G H 522 SUPREME COURTREPOR\S · [2015] 13 S.C.R. A B c Junction Canal, 3 H.L. Case 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to bf? applied in tb.e case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of ju~tice is maintaine.d across the range of situations.where bias may exist." 20. In substance, the Court held that in cases where the Judge has a pecuniary interest in the outc~me of the proceedings, his disqualification is automatic. No further enquiry whether such an interest lead to 9 "real dang~r" or ga'v'.e •.. rise to a "reasonable suspicion" is necessary.· In cases Of o other interest, the test to determille Whether the· Judge is • · · disqualified to hear the c;ase is the "real danger:" .test. 21. The Pinochet6 case added 9ne more category to the cases of automatic disqualification for a judge. Pinochet, a.former Chilean dictator, was sought to. be arrested and E extradited from England for his conduct during his incumbency in office. The issue was whether Pinochet was entitled to immunity from such arrest.or extradition. Amnesty International, a charitable organisation, participated in the said proceedings F with the leave of the Court. The House of Lords held that Pinochet did not enjoy any such immunity. Subsequently, jt . came to light that Lord Hoffman, one of the members of the. Board which heard the Pinochet case, was a Director and Chairman of a company (known asA.l.C.L.) which was closely G linked with Amnesty International. An application was made . to the House of Lords to set aside the earlier judgment on the ground of bias on the part of Lord Hoffman. · 6 Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte . H Pinochet Ugarte, (1999) 1 All E.R. 577 . :suPREMECOURTADV0CATES-ON-RECORD . 523 ASSOCIATION v. U.O.L[CHELAMESWAR, J.] 22. _The House· of Lords examined the following A questions; (i) Whether the connection of Lord Hoffman with Amnesty International required him to be automatic disqualified? (ii) Whether an enquiry into the question wl:lether cause of -Lord Hoffrnan'.s connection with Amnesty -f. : . • • ·.• • ' ·' International posed a real danger or caused a .· ·reawnable,apprehension that his judgment is biased - is necessary? (iii) Did it make any difference that Lord Hoffman was only a member of a company associated with Amnesty International which was in fact interested in securing the extradition of SenatorPinochet? 23. Lord W'ilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson - "The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implic;ations. First it may be applied literally: if a judge is in fact a P(3rtY to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for B c D E F G H 524 SUPREME COURT REPORTS [2015] 13 S.C.R. A example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a B benefit for another by failing to be impartial. In my judgment, this case falls within the first category of case, viz. where the judge is disqualified because he is a judge in his own cause. In such a c case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is D sufficient to disqualify him unless he has made sufficient disclosure. And framed the question; " .... the question then arises whether, in non- E financial litigation, anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause." He opined that although the earlier cases have "all dealt F with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification." 24. Lord Wilkinson concluded thatAmnesty International G and its associate company known as A.l.C.L., had a non pecuniary interest established that Senator Pinochet was not immune from the process of extradition. He concluded that, " .... the matter at issue does not relate to money or economic H SUPREME COURT ADVOCATES-ON-RECORD 525 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] advantage but is concerned with the promotion of the cause, A the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties" 25. After so concluding, dealing with the last question, 8 whether the fact that Lord Hoffman was only a member of A.l.C.L. but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that even though a judge may not have financial interest in the outcome of a case, but in some other way his conduct or behaviour may c give rise to a suspicion that he is not impartial and helctthat if the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same D organisation as is a party to the suit. There is no room for fine distinctions. This aspect of the matter was considered in P.D. Dinakaran case7• 26. From the above decisions, in our opinion, the following principles emerge; E (i) If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. (ii) In cases where the interest of the Judge in the case is F other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on th_e principle of "real G danger'' or "reasonable apprehension" of bias. 7 P.O. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 SCC 380, paras 49 to 53. H 526 SUPREME COURT REPORTS [2015] 13 S.C.R. A (iii) The Pinochet case added a new category i.e that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case. 8 27. It is nobody's case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the above-mentioned categories. By the very nature of the case, no such interest can arise at all. 28. The question is whether the principle of law laid down C in Pinochet case is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of D opinion between the parties is regarding the process·bywhich such a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote. E 29. The implication of Shri Nariman's submission is that Justice Khehar would be pre-determined to hold the impugned legislation to be invalid. We fail to understand the stand of the petitioners. If such apprehension of the petitioners comes true, the beneficiaries would be the petitioners only. The grievance, F if any, on this ground should be on the part of the respondents. 30. The learnedAttomeyGeneral appearing for the Union of India made an emphatic statement that the Union of India has no objection for Justice Khehar hearing the matter as a G presiding Judge of the Bench. H 31. No precedent has been brought to our notice, where courts ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative SUPREME COURT ADVOCATES-ON-RECORD 527 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] decision is either voidable or void on the ground of bias. On A the other hand, it is a well established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party. "The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory.8 The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged." 9 In our opinion, the implication of the above principle is that only a party who has suffered or likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection. 32. The significant power as described by Shri Nariman does not inhere only to the members of the Collegium, but inheres in every Judge of this Court who might be called upon B c D E to express his opinion regarding the proposals of various appointments of the High Court Judges, Chief Justices or F Judges of this Court, while the members of the Collegium are required to exercise such "significant power" with respect to •Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. (1865) 1Q.B.84. 9 R V. Byles ex p. Hollidge (1912) 77 J.P. 40; R. v. Nailsworth Licensing G Justices exp. Bird [1953] 1W.L.R.1046; R v. Lilydale Magistrates Court exp. Ciccone (1973] V.R. 122; and see R. v. Antrim Justices (1895] 2 l.R. 603; Tolputt (H.) & Co. Ltd. v. Mole [1911] 1 K.B. 836; Corrigan v. Irish Land Commission (1977] l.R. 317. H 528 SUPREME COURT REPORTS [2015] 13 S.C.R. A each and every appointment of the above-mentioned categories, the other Judges of this Court are required to exercise such "significant power", at least with respect to the appointments to or from the High Court with which they were earlier associated with either as judges or Chief Justices. The B argument of Shri Nariman, if accepted would render all the Judges of this Court disqualified from hearing the present controversy. A result not legally permitted by the "doctrine of necessity". c 33. For the above-mentioned reasons, we reject the D submission that Justice Khehar should recuse from the proceedings. JUDGMENT CHELAMESWAR, J. 1. We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of E checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial F hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us? Has all the independence acquired by the judicial branch since 5th G October, 1993 been a myth - a euphemism for nepotism enabling inter alia promotion of mediocrity or even less occasionally- are questions at the heart of the debate in this batch of cases by which the petitioners question the validity of H SUPREME COURT ADVOCATES-ON-RECORD 529 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] the Constitution (99th Amendment) Act, 2014 and The National A Judicial Appointments Commission Act, 2014 (hereinafter referred to as the "AMENDMENT" and the "ACT", for the sake of convenience). 2. To understand the present controversy, a look at the 8 relevant provisions of the Constitution of India, as they stood prior to and afterthe impugned AMENDMENT, is required. Prior to theAMENDMENT Article 124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than thirty other Judges. (2) Every Judge of the Supreme Court shall be appointed c D 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 E 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: F )()()()( )()()()()( )()()()()( )()()()()( Article 217. Appointment and conditions of the office of a Judge of a High Court (1) Every Judge of a High Court shall be appointed by G the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor H 530 SUPREME COURT REPORTS [2015] 13 S.C.R. A of the State, and, in th~ case of appointment of a Judge other than the chief Justice, the chiefJustice of the High court, ............... .. xxxx )()()()()( )()()()()( )()()()()( B 3. The pre AMENDMENT text stipulated that the President of India shall appoint Judges of this Court and High Courts of this country (hereinafter the CONSTITUTIONAL COURTS) in consultation with the Chief Justice of India (hereinafter CJI) and other constitutional functionaries C indicated in Article 124 and 217. In practice, the appointment process for filling up vacancies was being initiated by the Chief Justice of the concerned High Court or the CJI, as the case may be. Such a procedure was stipulated by a memorandum D E F G H of the Government of lndia1• After the AMENDMENT 4. Articles 124 and 217 insofar as they are relevant for our purpose read "Article 124 xxxxx )()()()()( xxxx (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years. Article 217. Appointment and conditions of the office of a Judge of a High Court-(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission 'The details of which are already noted in the judgment of my brother Khehar, J. SUPREME COURT ADVOCATES-ON-RECORD 531 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] referred to in article 124A, and shall hold office, in the A case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years." 5. TheAMENDMENT inserted Articles 124A, 1248 and B 124C. These provisions read: "124A (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:- ( a) the Chief Justice of India, Chairperson, ex C officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India - Members, ex officio; D ( c) the Union Minister in charge of Law and Justice - Member, ex officio (d). two eminent persons to be nominate? by the committee consisting of the Prime Minister, the E 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: F 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. G H 532 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. (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. 1248. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. Consequent amendments to other Articles are also made, details are not necessary. 6. The crux of the AMENDMENT is that the institutional mechanism by which selection and appointment process of the Judges of CONSTITUTIONAL COURTS was undertaken came to be substituted by a new body called the National SUPREME COURT ADVOCATES-ON-RECORD 533 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Judicial Appointments Commission (hereinafter referred to as A NJAC). It consists of six members. The CJI is its ex-officio Chairperson. Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister are also ex-officio members, apart from two eminent persons to be nominated by a Committee contemplated in Article 124A (1 )(d). B 7. Under Article 124B, the NJAC is charged with the duty of recommending persons of ability and integrity for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High c Courts and of recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. 8. Article 124C authorizes Parliament to regulate by law, the procedure for the appointment of Chief Justice and other D Judges of the Supreme Court etc. It also empowers the NJAC to make regulations laying down the procedure for the discharge of its functions. 9. Pursuant to the mandate of Article 124C, Parliament E made the ACT. For the present, suffice it to note that though the amended text of the Constitution does not so provide, Section 6(6)2 of the ACT provides that the NJAC shall not recommend a person for appointment, if any two members of the Commission do not agree for such recommendation. F 10. The AMENDMENT made far reaching changes in the scheme of the Constitution, insofar as it relates to the selection process of Judges of the CONSTITUTIONAL . COURTS. The President is no more obliged for making G appointments to CONSTITUTIONAL COURTS to consult the ·1 2 Section 6 (6). "The Commission shall not recommend a person for appointment under this section if any two members of the Commission do I not agree for such recommendation." I H 534 SUPREME COURT REPORTS [2015] 13 S.C.R. A CJI, the Chief Justices of High Courts and Governors of the States but is obliged to consult the NJAC. 11. The challenge to the AMENDMENT is principally on the ground that such substitution undermines the independence 8 of the judiciary. It is contended that independence of judiciary is a part of the basic structure of the Constitution and the AMENDMENT is subversive of such independence. Hence, it is beyond the competence of the Parliament in view of the law declared by this Court in His Holiness Kesavananda Bharati C Sripadagalvaru v. State of Kera/a & Another, ( 1973) 4 SCC 225 (hereinafter referred to as Bharati case). 12. Fortunately there is no difference of opinion between the parties to this /is regarding the proposition that existence of an independent judiciary is an essential requisite of a D democratic Republic. Nor is there any difference of opinion , regarding the proposition that an independent judiciary is one of the basic features of the Constitution of India. 13. The only issue is what is the permissible procedure E or mechanism which would ensure establishment of an independent judiciary. The resolution of the issue requires examination of the following questions; F G H (i) Whether the mechanism established by the Constituent Assembly for the appointment of Judges of the CONSTITUTIONAL COURTS is the only permissible mode for securing an independent judiciary or can there be alternatives? (ii) If there can be alternatives, whether the mechanism (NJAC) sought to be established by the AMENDMENT transgresses the boundaries of the constituent power? 14. In the last few weeks, after the conclusion of hearing in this batch of matters, I heard many a person - say that the SUPREME COURT ADVOCATES-ON-RECORD 535 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] whole country is awaiting the judgment. Some even said the A whole world is awaiting. There is certainly an element of hyperbole in those statements. Even those who are really waiting, I am sure, have concerns which vary from person to person. Inquisitiveness regarding the jurisprudential and political correctness, impact on the future of the judiciary, B assessment of political and personal fortunes etc. could be some of those concerns. I am only reminded of Justice Fazal Ali's view in S.P Gupta v. Union of India & Ors.3 AIR 1982 SC 149 {for short S.P Gupta case) that the issue is irrelevant for the masses and litigants. They only want that their cases C should be decided quickly by judges who generate confidence. The question is - what is the formula by which judges - who can decide cases quickly and also generate confidence in the masses and litigants - be produced. What are the qualities D which make a Judge decide cases quickly and also generate confidence? 3 "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." E F G H 536 . SUPREME COURT REPORTS [2015] 13 S.C.R. A 15. Deep learning in law, incisive and alert mind to quickly grasp the controversy, energy and commitment to resolve the problem are critical elements which make a Judge efficient and enable him to decide cases quickly. However, every Judge who has all the above-mentioned qualities need not B automatically be a Judge who can ·generate confidence in the litigants unless the litigant believes that the Judge is absolutely fair and impartial. 16. Belief regarding the impartiality of a Judge depends c upon the fact that Judge shares no relationship with either of the parties to the litigation. Relationship in the context could be personal, financial, political or even philosophical etc. When one of the parties to the litigation is either the State or one of its instrumentalities, necessarily there is a relationship. D Because, it is the State which establishes the judiciary. Funds · required to run the judicial system including the salaries and allowances of Judges necessarily flow from the State exchequer. 17. Democratic societies believe that the State not only E has authority to govern but also certain legally enforceable obligations to its subjects. The authority of judicial fora to command the State to discharge its obligations flows from the existence of such enforceable obligations. To generate F confidence that the judicial fora decide controversies brought to their consideration impartially, they are required to be independent. Notwithstanding the fact that they are established and organized by the State as a part of its larger obligation to govern. 18. Judiciary is the watchdog of the Constitution and its G fundamental values. It is also said to be the lifeblood of constitutionalism in democratic societies. At least since Marbury v. Madison4 the authority of courts functioning under 4 5 u.s 137 (1803) H SUPREME COURT ADVOCATES-ON-RECORD 537 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] a written democratic constitution takes within its sweep the A power to declare unconstitutional even laws made by the legislature. It is a formidable authority necessarily implying an awesome responsibility. A wise exercise of such power requires an efficient and independent Judge (Judicial System). In the context, wisdom is to perceive with precision whether B the legislative action struck the constitutionally demanded balance between the larger interests of society and liberties of subjects. 19. Independence of such fora rests on two integers - c independence of the institution and of individuals who man the institution. "(Judicial independence) connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees. * * * It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of Government."5 20. It is not really necessary for me to trace the entire history of development of the concept independence of the 5 Supreme Court of Canada in Valente v. Queen. (1985) 2 SCR 673 D E F G H 538 SUPREME COURT REPORTS [2015] 13 S.C.R. A judiciary in democratic societies. It can be said without any fear of contradiction that all modern democratic societies strive to establish an independent judiciary. The following are among the most essential safeguards to ensure the independence of the judiciary- Certainty of tenure, protection from removal from B office except by a stringent process in the cases of Judges found unfit to continue as members of the judiciary, protection of salaries and other privileges from interference by the executive and the legislature, immunity from scrutiny either by the Executive or the Legislature of the conduct of Judges with C ·respect to the discharge of judicial functions except in cases of alleged misbehaviour, immunity from civil and criminal liability for acts committed in discharge of duties, protection against criticism to a great degree. Such safeguards are provided 0 with a fond hope that so protected, a Judge would be absolutely independent and fearless in discharge of his duties. 21. Democratic societies by and large recognize the necessity of the above mentioned protections for the judiciary and its members. Such protections are either entrenched in E the Constitution or provided by legislation. A brief survey of the constitutions of a few democratic Republics to demonstrate the point; 22. Prior to 1701, the British Crown had the power to F dismiss the judges at will. The Act of Settlement, 17016 removed from the Crown the power to dismiss Judges of the Superior Courts at will. It enabled the Monarch to remove Judges from office upon address of both Houses of Parliament. Interestingly till 1720 Judges ceased to hold office on the death G of the Monarch who issued Commissions. A 1720 enactment provided that Judges should continue in office for six months after demise of the monarch. In 1761 a statute provided that ' " ••• 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 H repealed by_ SUPREME COURT ADVOCATES-ON-RECORD 539 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] commissions of the Judges shall remain in full force and effect A during good behaviour notwithstanding the demise of His Majesty or of any of his heirs and successors - thus granting a life tenure. According to Blackstone, "(I) In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any State unless the administration of common justice be in some degree separated both from the legislative and from the executive power." 7 23. Article Ill (1)8 of the American Constitution stipulates that Judges of the Supreme Court and also the inferior Courts established by Congress shall hold their office during good behavior and they cannot be removed except through the process of impeachment 9• It also stipulates that they shall receive a compensation for their services which shall not be diminished during their continuance in office. 24. Section 7210 of the Constitution of Australia stipulates ' Sir. William Blackstone's, Commentaries on the Laws of England, (1765) Vol. I p.269 'Article Ill Section I. The judicial power of the United States, shall be vested B c D E in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. T.he judges, both of the supreme and F inferior courts, shall hold their offices during go9d behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 9 Article II Section 4. The President, Vice President and ail 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, 10 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 G the remuneration shall not be diminished during their continuance in office. H 540 SUPREME COURT REPORTS [2015] 13 S.C.R. A that Judges of the High Court and other Courts·created by Parliament shall be appointed for a term expiring upon the Judge attaining the age of seventy years and shall not be removed except on an address from both Houses of the Parliament in the same session praying for removal of the B Judge on the ground of proved misbehaviour or incapacity. It also stipulates that remuneration of Judges shall not be diminished during their continuance in office. 25. When India became a Sovereign Republic, we did c not adopt the British Constitutional system in its entirety- though India had been a part of the British Empire Ever since, the British Crown started asserting sovereignty over the territory of India, the British Parliament made Acts which provided legal framework for the governance of India from time to time known o as Government of India Acts. The last of which was of 1935. E Canada 11 and Australia 12 which were also part of the British Empire continue to be governed by Constitutions enacted by the British Parliament. We framed a new Constitution through a Constituent Assembly. 26. Members of the ConstituentAssembly in general and the Drafting Committee in particular were men and women of great political experience, deep insight into human nature, and a profound comprehension of the complex problems of Indian F Society. They spearheaded the freedom movement. They were well versed in history, ·law, political sciences and democratic practices. They examined the various constitutional systems in vogue in different democratic societies inter alia American, Australian, British and Canadian and adopted G diff~rent features from different constitutional systems after suitably modifying them to the needs of Indian society. H 11 The British North America Act. 1867 renamed by the Amendment in 1982 as the Constitution Act. 1867 " Commonwealth of Australia Constitution Act. 1900. SUPREME COURT ADVOCATES-ON-RECORD 541 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 27. Framers of the Constitution had the advantage of an A intimate knowledge of the functioning of the Federal Court, the High Courts and the Subordinate Courts of this country under the Government of India Act, 193513• ·Though there several distinctions in the architecture of the judicial systems under each of the above-mentioned regimes, one feature B common to all of them is that appointment of Judges is by the · Executive. Such constitutional design is essentially a legacy of the British constitutional system where the Executive had (till 2006) the absolute authority to appoint Judges. 28. Judges, in any country, are expected to maintain a higher degree of rectitude compared to the other public office holders. The expectation with respect to the Indian Judiciary c is ·no different. The Constitution therefore provides extraordinary safeguards and privileges for Judges of Q CONSTITUTIONAL COURTS to insulate them substantially from the possibility of interference by the political-executive as well as elected majorities of the people's representatives 14 • L a Judge's appointment and continuance in office is not subject to any election process; E 13 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 F 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. G xxxxx xxxxxx xxxxxx xxxxx 446. Thus, even under the Government of ln~ia 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. 14 L Chandra Kumar& Ors v. Union oflndia & Ors., (1997) 3 SCC 261, para 78 H 542 SUPREME COURT REPORTS [2015] 13 S.C.R. A II. the termination of judicial appointment {during subsistence of the tenure) is made virtually impossible. The Constitution prescribes that' a Judge of CONSTITUTIONAL COURT shall not be removed from office 8 except by following an elaborate procedure of impeachment prescribed under Article 124(4 )15 which is applicable even for High Court Judges by virtue of Article 217(1 )(b)16• c D Ill. The salaries, privileges, allowances and rights in respect of leave of absence and pension of Judges of the CONSTITUTIONAL COURTS may be determined by or under law made by Parliament. But, they cannot be varied to the disadvantage of the Judge 17 after the appointment. IV. The salary, allowances and pension payable to Judges of CONSTITUTIONAL COURTS are charged on the Consolidated Fund of India or the Consolidated Fund of the concerned State 18• Further under Articles 15 Article 124(4) A Judge of the Supreme Court shall not be removed from his E 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. 16 Article 217(1 )(b) A Judge may be removed from his office by the President F in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; 17 Under the proviso to Article 125(2) and proviso to Article 221 (2) respectively. "Article 112(3)(d) - (3) The following expenditure shall be expenditure charged on the Consolidated Fund of India - ***"'* ***** ***** ****** (d) (i) the salaries, allowances and pensions payable to or in respect of G Judges of the Supreme Court; Article 202(3)(d)- (3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State - H ***** ****"' ****** (d) expenditure in respect of the salaries and allowances of Judges of any High Court; SUPREME COURT ADVOCATES-ON-RECORD 543 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 113(1 )19 and 203(1 )20, the expenditure charged upon A the Consolidated Fund of India or the State as the case may be shall not be submitted to vote. 29. Unscrupulous litigants constantly keep searching for ways to influence judges. Attitude of the State or its 8 instrumentalities (largest litigants in modern democracies) would be no different 21 • Such temptation coupled with the fact that the State has the legal authority to make laws including the laws that determine the process of selection of judges and their service conditions can pose the greatest threat to the c independence of the judiciary if such law making authority is without any limitations. Therefore, extraordinary safeguards to protect the tenure and service conditions of the members of the judiciary are provided in the Constitution; with a fond hope that men and women, who hold judicial offices so protected D will be able to discharge their functions with absolute independence and efficiency. 30. However, any amount of legal and institutional protection will not supply the necessary independence and efficiency to individuals if inherently they are lacking in them. 19 113(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. E 20 203 (1) - So much of the estimates as relates to expenditure charged upon F 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. 21 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 G 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." H 5'44 SUPREME COURT REPORTS [2015] 13 S.C.R. A Where every aspect of judge's service is protected by the Constitution, the only way governments can think of gaining some control over the judiciary is by making an effort to appoint persons who are inherently pliable. There are various factors which make a Judge pliable. Some of the factors are - B individual ambition, loyalty-based on political, religious or sectarian considerations, incompetence and lack of integrity. Any one of the above-mentioned factors is sufficient to make a Judge pliable. A combination of more than one of them makes a Judge more vulnerable. Combination of C incompetence and ambition is the worst. The only way an ambitious incompetent person can ascend a high public office is by cringing before men in power. It is said that men in power promote the least of mankind with a fond hope that those 0 who lack any accomplishment would be grateful to their benefactor. History is replete with examples - though proof of the expected loyalty is very scarce. Usually such men are only loyal to power but not to the benefactor. 31. In order to ensure that at least in the matter of E appointment of Judges, such aberrations are avoided, democracies all over the world have adopted different strategies for choosing the 'right people' as Judges. The procedures adopted for making such a choice are widely different. To demonstrate the same, it is useful to examine the F judicial systems of some of the English speaking countries. 32. The Constitution of.the United States of America empowers the President to appoint Judges of the Supreme Court22 with the advice and consent of the Senate 23• Insofar G 22 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. 23 The Federal Legislature of America is called the Congress of the United H States consisting of two chambers - Senate and House of Representatives. SUPREME COURT ADVOCATES-ON-RECORD 545 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] as the appointment of the Judges of the highest court in United A States is concerned, neither the Chief Justice of America nor the Supreme Court is assigned any role. The Head of the Executive-is conferred with exclusive power to make the choice of the Judges of the highest court subject to the advice and consent of the Senate. A check on the possibility of arbitrary B exercise of the power by the President. 33. The Canadian legal system depicts another interesting model. The Supreme Court of Canada is not established by the Constitution i.e. the Constitution Act of 1867. c Chapter VII of the Act deals with the judicature. Section 10124 only authorises the Parliament of Canada to provide for the constitution, maintenance and organisation of a general court of appeal of Canada and for the establishment of any additional courts for the better administration of the laws of Canada. It is o in exercise of such power, the Parliament of Canada in 1875 by a statute, (the Supreme and Exchequer Courts Act, 187525) established the Supreme Court of Canada. The Supreme Court of Canada's existence, its composition and jurisdiction depend upon an ordinary federal statute and these underwent E many changes over time. In theory, the Court could be abolished by unilateral action of the Federal Parliament. Judges of the Supreme Court are appointed by the Governor in Council (the federal cabinet) in exercise of the power conferred under Section 2 of the Supreme Court Act (supra). F There is no requirement in Canada that such appointments be ratified by the Senate or the House of Commons. 24 Section 101. The Parliament of Canada may. notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and G 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. 25 Now replaced by Supreme Court Act, 1985. H 546 SUPREME COURT REPORTS [2015] 13 S.C.R. A 34. In Australia, the highest Federal Court is called the High Court of Australia established under Section 71 26 of the Australian Constitution. It consists of a Chief Justice and other Judges not less than two as the Parliament prescribes. Judges of the High Court are appointed by the Governor B General in Council. 35. Neither Canada nor Australia provide the Chief Justice or Judges of the highest court any role in the choice of Judges of the Constitutional Courts. In Australia, unlike the C American model, there is no provision in the Constitution requiring ·consent of the federal legislature for such appointments. 36. England is unique in these matters. It has no written constitution as understood in India, US, Canada and Australia. D Till 2006, appointments of Judges were .made exclusively by the Lord Chancellor of the Exchequer who is a member of the Cabinet. 37. The makers of the Indian Constitution after a study of E the various models mentioned above among others, provided that in making appointment of the Judges of the CONSTITUTIONAL COURTS, the CJI and the Chief Justices of the concerned High Court are required to be consulted by the President who is the appointing authority of Judges of these F Courts. The text of the Constitution clearly excluded any role either for the Parliament or for the State Legislatures. 38. Dr. Ambedkar explained the scheme of the Constitution insofar as it pertains to appointment of Judges of G 26 Section 71. Judicial power and Courts H 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. SUPREME COURT ADVOCATES-ON-RECORD 547 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] the CONSTITUTIONAL COURTS and the competing concerns A which weighed with the drafting committee for adopting such m.odel: 'There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kirid of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices ofthe State shall be made only with the concurrence of the Senate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apartfrom its being cumbrous, it also involves the possibility of the appointment B c D E F G H 548 A B c D E F G H SUPREME COURT REPORTS [2015] 13S.C.R. being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment. With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personc;illy feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition27." (emphasis supplied) 27 Constituent Assembly Debates, 24th May 1949 (Vol. VIII) SUPREME COURT ADVOCATES-ON-RECORD 549 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] The following are salient features of Dr. Ambedkar's A statement: 1. That the judiciary must be both independent and competent. 2. It is dangerous to confer an unchecked power of B choosing or appointing Judges on the executive. The concurrence of the legislature is also not desirable as it leads to a possibility of appointments being influenced by political considerations or under political pressure. C 3.(a) Requiring concurrence of the Chief justice is also a dangerous proposition. (b) That, the Chief Justice is also a human being and is a man with all the failings, sentiments and D prejudices which common people are supposed to have28• (c) Providing for the concurrence of CJI would be conferring a power of veto on the CJI which in E substance means transferring the power of appointment to the CJI without any limitation, which the Constituent Assembly thought it imprudent to confer on the President. 4.That, the Drafting Committee thought the F arrangements, specified under Articles 124 and 217 (as they stood prior to the AMENDMENT), would ensure requisite independence and competence of the judiciary and such arrangements would be sufficient for the "moment". G 26 Recall the words of Jackson, J. in Sacherv. 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." H 550 SUPREME COURT REPORTS [2015] 13 S.C.R. A 39. Till 1977, the true meaning and amplitude of the expression consultation occurring in Articles 124 and 217 of the Constitution of India troubled neither the executive nor the judiciary. There had always been a consultation between the constitutional functionaries. Appointments were made without B much controversy. This Court in Supreme Court Advocates on-Record Association v. Union of India, ( 1993} 4 SCC 441 (hereinafter referred to as the Second Judges case) recorded so29 40. Article 22230 authorises the President to transfer High c Court Judges in consultation with the CJI. Till 1975, that power was very rarely exercised by the President. In 197631 , the power under Article 222 was invoked to make a mass transfer of 16 High Court Judges32 • One of the 16 Judges, though complied 29 Para 371 D E F (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. Go bind 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." 30 Article 222 - Transfer of a Judge from one High Court to another ill 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) G 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 31 During the subsistence of a (partially controversial) declaration of emergency H 32 Union of India v. Sankalchand Himatla/ Sheth & Anr., (1977) 4 SCC 193 (Bhagwati, J. - Para 46) SUPREME COURT ADVOCATES-ON-RECORD 551 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] with the order of transfer but challenged the transfer by filing a A petition pro bono publico to assert and vindicate the independence of the Judiciary 33, It was in the context of that case, for the first time, the true meaning of the expression consultation occurring under Article 222(1) fell for the consideration of this Court. · The matter, Union of India v. B Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 (for short Sankalchand case) was heard by five Judges. Four separate judgments were delivered by Chandrachud, Bhagwati, Krishna Iyer, and Untwalia, JJ. Justice Chandrachud opined that "consultation" in the context means an effective consultation C and sharing of complete data on the basis of which transfer is sought to be effected but concluded that -After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether D a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer>'. After re.cording such a conclusion, His Lordship went on to observe as follows: "41. . ....... But it is necessary to reiterate what Bhagwati and Krishna Iyer JJ. said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India. "In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as 33 Para 47 of Sanka/chand case, Bhagwati, J. 34 Para 41 of Sankalchand case - Chandrachud, J. E F G H 552 SUPREME COURT REPORTS [2015) 13 S.C.R. A prompted by oblique considerations vitiating the order." (page 873). It is hoped that these words will not fall on deaf ears and since normalcy has now been restored, the differences, if any, between the executive and the judiciary will be resolved by B mutual deliberation each, party treating the views of the other with respect and consideration." 41. Justice Bhagwati, was entirely in agreement with what has been said by Krishna Iyer in his judgment. 35 C 42. Justice Krishna Iyer spoke for himself and for Justice Fazat Ali. Justice Krishna Iyer, while reiterating the views expressed by this Court in two earlier judgments, i.e. Chandramouleshwar Prasad v. Patna High Court and Ors. , (1969) 3 SCC 56 and Samsher Singh v. State of Punjab, AIR D 197 4 SC 2192, opined that although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government .......... 36 with a caveat: E "115 ........ It must also be borne in mind that ifthe Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court F that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word 'consultation' has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are G concerned in the matter, namely, the President and the Chief Justice of India. Of course, the Chief 35 Para 62 of Sankalchand case - Bhagwati, J. 36 Para 115 of Sanka/chand case - Krishna Iyer, J. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Justi~e has no power of veto, as Dr. Ambedkar explained in the ConstituentAssembly." Justice Untwalia agreed with the views expressed by Justice Chandrachud on the question of consultation with the Chief Justice of India and added: "125. .. .. .. .. . The Government, however, as rightly conceded by Mr. Seervai, is not bound to accept and act upon the advice of the Chief Justice. It may differ from him and for cogent reasons may take a contrary view. In other words, as held by this Court in the cc;ise of Chandramouleshwar Prasad v. Patna High Court and Ors. [1970]2SCR666 , the advice is not binding on the Government invariably and as a matter of compulsion in law. Although the decision of this Court in Chandramouleshwar Prasad's case was with reference to the interpretation of Articles 233 and 235 of the Constitution, on principle there is hardly any difference." 43. One interesting factor that is required to be noted from the abovementioned case is that all the 16 transfers were made in consultation with the then CJI. Within a year thereafter, 553 A B c D E in March 1977, general elections took place and a new political party came to power. The Government on a re-examination of F the matter opined thatthere was no justification for transferring Justice Sheth from Gujarat. It is a matter of history that all 16 Judges who were transferred during emergency, were sent back to their parent High Courts along with Justice Sheth 37• 37 Per Fazal Ali, J. - SP. Gupta case, p.403- "It is true that there were, quite a few transfers during the emergencywhich were not in consonance with the spirit of Article 222 and that is why the -Government had conceded this fact and took steps tci revoke the transfers by retransferring, almost all the Judges _ to the High Courts from where they had been transferred." G H 554 SUPREME COURT REPORTS [2015] 13 S.C.R. A This fact is significant in the context of the argument that permitting the executive to have any say in the matter of appointment of Judges to Constitutional Courts would be destructive of independence of the judiciary. 8 44. Within three years thereafter, another significant event in the constitutional history of this country occurred. The then Law Minister of the Government of India sent a circular dated 181h March 1981 to Chief Ministers of various States. Chief Ministers were requested to obtain from all the Additional C Judges (working in the concerned High Courts) consent to be appointed as permanent Judges in any other High Court in the country. It also advised Chief Ministers to obtain similar consent letters fro.m persons who have already been or may in future be proposed for initial appointment as Judges of the o High Court. The said letter was challenged in S.P. Gupta case on the ground it was a direct attack on the independence of the judiciary which is a basic feature of the Constitution38 (Para 2). The matter was heard by seven Judges of this Court. Seven separate judgments were delivered. One of the questions E before this Court was whether the opinion of CJI be given primacy over the opinion of other constitutional functionaries. Substantially, this Court took the same view as was taken in Sanka/chand case 39 F 45. Growth of population, increasing awareness of legal rights in the population, expansion of the scope of judicial review as a consequence of a change in the understanding of the amplitude of various fundamental rights and their inter relationship, a sea change in the law on the procedural G limitations in the exercise of the jurisdiction under Article 32 H 38 Para 2 of S.P. Gupta case - Bhagwati, J. 39 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- ES Venkataramaiah,J SUPREME COURT ADVOCATES-ON-RECORD 555 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] and 226 led to the explosion of dockets of the A CONSTITUTIONAL COURTS of this country. But, the Judge strength remained relatively stagnant. By 80s, the problem became more acute and complex. Government of India did not undertake the requisite exercise to make a periodic assessment of the need to increase the judge strength. In the B case of some High Courts, there was even a reduction 40• Even, the appointment process of High Court Judges was taking unreasonably long periods on legally untenable grounds41 • A three Judge Bench of this Court in Subhash Sharma v. Union of India (1991) Supp.1 SCC 574 (for short C Subhash Sharma case) took note of such a situation. 46. There was a turmoil with regard to appointment of Judges of CONSTITUTIONAL COURTS in 1970s and 1980s. Senior Judges were superceded for appointment to the office D of CJI. Perhaps, emboldened by judgments of this Court in Sankalchand and S.P. Gupta the executive (at the National as well as the State level) resorted to unhealthy manipulation of the system. The Informal Constitution : Unwritten Criteria in Selecting Judges for the Supreme Court of E lndia42 records some instances of such manipulations based 40 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 F 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." 41 Pata 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 G the provision of Judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law ...... ." · ., 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 H 556 SUPREME COURT REPORTS [2015] 13 S.C.R. A on news items published in print media of some reputation by Commentators of well established credentials on Contemporary issues and scholars. It appears that out of 53 appointments of Judges to some High Courts made in 1984- 85, 32 were made on the recommendations of acting Chief B Justices. It is believed that the senior most Judges of some High Courts (from where the said 32 recommendations had originated) who initiated those recommendations as acting Chief Justices, were made permanent Chief Justices only after they agreed to recommend names suggested by the Executive. C A particular Additional Judge was not confirmed as a permanent Judge for several years notwithstanding the recommendations for his confirmation by three successive Chief Justices of the High Court and three CJ ls allegedly on 0 the ground that the Judge had delivered a judgment not palatable to the State Government. It appears that the Government headed by Prime MinisterV.P. Singh had stalled appointments of 67 persons recommended by the Chief Justices of various High Courts. Charges were freely traded E against each other by the constitutional functionaries who are part of the appointment process of the CONSTITUTIONAL COURTS. It appears that a Law Minister for the Union of India complained that State Governments were trying to pack High Courts with their 'own men'43• The basic facts are verifiable, F inferences therefrom are perhaps contestable. Unfortunately, the correspondence between the Government and the CJI and the record of the consultation process are some of the best guarded secrets of this country. 4 7. The question is not whether the various statements G made in the above-mentioned book are absolutely accurate. H The observatipns made by this Court in Subhash Sharma case 43 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. SUPREME COURT ADVOCATES-ON-RECORD 557 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] can lead to a safe conclusion, that there must be some truth in A the various statements made in the book. The above scenario whether true or partially true formed the backdrop of the observations made in Subhash Sharma case (supra). As a consequence, the Bench thought it fit that the correctness of S.P. Gupta case should be considered by a larger Bench. B "49. . ....... majority view in S.P. Gupta's case should be considered by a larger Bench we direct the papers of W.P. No. 1303of1987 to be placed before the learned Chief Justice for constituting a c Bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength ....... " D 48. This led to the Second Judges case. The matter was heard by nine Judges. Five separate judgments were delivered. Justice Verma spoke for five of them. Justice Pandian and Justice Kuldip Singh wrote separate judgments but agreed with tile conclusions of Justice Verma, but Justice Ahmadi and E Justice Punchhi did not. One proposition on which all nine Judges were unanimous is that under the scheme of the Constitution, independence of judiciary is indispensable. Justice Verma categorically held that it is a part of the basic F structure of the Constitution 44 • The point of disagreement 44 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 G 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. H 558 SUPREME COURT REPORTS [2015] 13 S.C.R. A between the majority and minority is only regarding the mode by which the establishment and continuance of such an independent judiciary can be achieved. 8 49. Textually, provisions which indicate that the judiciary is required to be independent of the executive are Article 5045 and the form of oath required to be taken by the Judges of CONSTITUTIONAL COURTS prescribed in Forms IV46 and Vlll 47 under the Third Schedule to the Constitution of India. 50. However, structurally there are many indications in C the scheme of the Constitution which lead to an unquestionable inference that the Framers of the Constitution desired to have a judiciary which is absolutely independent of the Executive and insulated from vagaries of transient and shifting majoritarian dynamics. Under the scheme of the Constitution, D State Legislatures have absolutely no role in matters pertaining to the establishment of CONSTITUTIONAL COURTS of this country. Parliament alone is authorized to deal with certain E F G H 45 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." 46 Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:- "!, 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." 47 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." SUPREME COURT ADVOCATES-ON-RECORD 559 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] aspects of the establishment of the CONSTITUTIONAL A COURTS and their administration such as fixation of the strength of the courts, salaries and other service conditions of the judges etc. Termination of an appointment made to a CONSTITUTIONAL COURT can be done only through the process of impeachment by Parliament, the only legislative B body authorised to impeach by following a distinct legislative process only on the ground of 'proved misbehaviour or incapacity'. Such a process is made more stringent by a constitutional stipulation under Article 124(5) 48 that the procedure for investigation and proof of misbehaviour or C incapacity of a Judge must be regulated by law. Even after misbehaviour or incapacity is established removal of a Judge is not automatic but subject til voting and approval by a special majority of the Parliament specified under Article 124(4)49• D Prior to the AMENDMENT, the power to appoint Judges of CONSTITUTIONAL COURTS vested in the President to be exercised in consultation with the various constitutional functionaries mentioned under Articles 124 and 217, as the case may be. Consultation with the CJI was mandatory for the E appointment of Judges of all CONSTITUTIONAL COURTS. Consultation with the Chief Justices of High Courts was mandatory for appointment of Judges of High Courts. 51. In the backdrop of such scheme, a question arose whether the appointment process, in any way, impacts F independence of the judiciary, which, admittedly, formed a part 48 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). 49 Article 124(4). A Judge of the Supreme Court shall not be removed from his G 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. H 560 A 8 c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. of the basic structure of the Constitution. Majority of the Judges opined that it does50 • Their Lordships drew support for such "'(per Hon. Pandian, J.)- Para 49."one other basic and inseparable vital c.ondition 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 cgidibility 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 I.he 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 SUPREME COURT ADVOCATES-ON-RECORD 561 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] conclusion from history and debates in the Constituent A Assembly apart from the observations made in the cases of Sankalchand and S.P. Gupta. Their Lordships also took note of the fact that the Constituent Assembly consciously excluded any role to the Parliament in the process of appointments, a conscious departure from the American Constitutional model B where Federal Judicial appointments are subject to consent of the Senate. 52. In the background of such an analysis, consultation with the Chief Justice of India in Articles 124 and 217 was C interpreted as conferring primacy to the opinion of CJI. Consultation with the CJ I was part of a design of the Constituent Assembly to deny unfettered authority (to the union executive) to appoint Judges of the CONSTITUTIONAL COURTS. The Constituent Assembly did not choose to vest such controlling D power in the Parliament to which the Executive is otherwise accountable under the scheme of the Constitution. This Court, therefore, concluded that without primacy to the opinion of CJI the whole consultation process contemplated under Articles 124 and 217 would only become ornamental enabling the E executive to make appointments in its absolute discretion, most likely based on considerations of political expediency. Such a process would be antithetical to the constitutional goal of establishing an independent judiciary. However, Justice Verma categorically declared- "438. The debate on primacy is intended to determine, who amongst the constitutional F tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the G 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.'" H 562 SUPREME COURT REPORTS [2015) 13 S.C.R. . A functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is B c D E not to determine who between them is entitled to greater importance or is to take the winner's prize at the end of the debate. The task before us has to be performed with this perception. 450. . ............ The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice F of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts." [emphasis supplied] 53. This Court also indicated the circumstances on which G the President of India would be constitutionally justified in not acting in accordance with the opinion expressed by the CJI. This Court never held that consultation means concurrence as is sought to be interpreted in some quarters and I regret to say even in the stated objects and reasons for the AMENDMENT. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] "As regards the appointment of Judges of the Supreme Court and High Courts, the Supreme Court, in the matters of the Supreme Court Advocates-on-Record Association v. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of "consultation" as "concurrence". It was also held that the consultation of the Chief Justice of India means collegium consisting of the Chief Justice and two orfour Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedure confers upon the Judiciary itself the power for appointment of Judges." [emphasis supplied] 563 A B c D 54. There are conflicting opinions 51 regarding the jurisprudential soundness of the judgment of Second Judges E 51 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.O. "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. F 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 G 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 H 564 3UPREMECOURTREPORTS [2015] 13 S.C.R. A case. I do not think it necessary to examine that aspect of the matter for the purpose of determining the present controversy. 55. After some 20 years of the working of the regime created under the Second Judges case, serious questions B arose whether the regime emanating as a consequence of the interpretation placed by this Court in the Second Judges case, yielded any constitutionally aspired result of the establishment of an independent and efficient judiciary- the CONSTITUTINONAL COURTS. Answer regarding the c independence can be subjective, and efficiency perhaps may not be very pleasant. 56. Within a few years doubts arose regarding the true purport of the Second Judges case. The President of India invoked Article 143 and sought certain clarifications on the D judgment of the Second Judges case leading to the opinion of this Court reported in Special Reference No.1 of 1998, (1998) 7 SCC 739 (hereinafter referred to as 'Third Judges· case). Unfortunately, the factual matrix on which doubts were entertained by the Government of India are not recorded in the E opinion. But para 41 of the Third Judges case records: "41. . .. We take the optimistic view that successive Chief India of attempts by the executive to influence the personalities and attitudes of members of the judiciary, and having regard to the successful attempts F 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 le 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 G "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 H SUPREME COURT ADVOCATES-ON-RECORD 565 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Justices of India shall henceforth act in accordance with A the Second Judges case and this opinion." 57. No wonder, gossip and speculations gather momentum and currency in such state of affairs. If a nine-Judge Bench of this Court takes an optimistic view that successive 8 Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all at least in some cases attracting c comments. Instead of Ministers, Judges patronised. 52 58. In the next one and a half decade, this nation has witnessed many unpleasant events connected with judicial appointments - events which lend credence to the speculation that the system established by the Second and Third Judges D cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary. 53 59. Two events are part of the record of this Court and can be quoted without attracting the accusation of being E irresponsible and unconcerned about the sanctity of the 52 Iyer, V.R. Krishna, Judiciary: A reform agenda-II, The Hindu (online edition) 15.08.2002 53 "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011. F "As I have said elsewhere 'the process by which a judge is appointed to a superior court is one of the best kepi 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 G 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." H 566 SUPREME COURT REPORTS [2015] 13 S.C.R. A institution. These events led to the decisions reported in Shanti Bhushan & Another v. Union of India & Another, (2009) 1 SCC 657, P.O. Oinakaran (1) v. Judges Inquiry Committee & Others, (2011) 8 SCC 380, P.O. Oinakaran (2) v. Judges Inquiry Committee & Another, (2011) 8 SCC 4 7 4. B While the 1st of the said two events pertains to the appointment of a Judge of the Madras High Court, the 2"d pertains to the recommendation made by the CJI (Collegium) regarding elevation of the Chief Justice of a High Court to this c Court. 60. The dispute in Shanti Bhushan case (supra) was regarding appointment of a permanent Judge to the Madras High Court. The allegation appears to be that the procedure indicated in the Second and Third Judges cases had not been D followed. I use the expression appears to be because it is difficult to identify what was the exact pleading in the case54, It is only by inference such a conclusion can be reached. Even the conclusion recorded by this Court does not really throw any light. In para 22 of the judgment of this Court it is recorded E as follows: "22. The position is almost undisputed that on 17.3.2005 the then Chief Justice of India recommended for extension of term of 8 out of 9 F persons named as Additional Judges for a further period of four months w.e.f. 3.4.2005. On 29.4.2005 the collegium including the then Chief Justice of 54 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 G 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. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] India was of the view that name of Respondent 2 cannot be recommended along with another Judge for confirmation as permanent Judge. Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or permanent Judge; the then Chief Justice should have stuck to the view expressed by the collegium and should not have been swayed by the views of the Government to recommend extension of the term of Respondent 2 for one year; as it amounts to surrender of primacy by jugglery of words." [emphasis supplied] 567 A B c Even if I choose to ignore the controversial statements made (in the recent past) with regard to the appointment in D question in the case, by persons who held high constitutional offices and played some role in the appointment process including former Members of this Court, the judgment leaves sufficient scope for believing that all did not go well with the appointment. It appears to have been a joint venture in the E subversion of the law laid down by the Second and Third Judges cases by both the executive and the judiciary which neither party is willing to acknowledge. 61. The grievance of the petitioners in that case appears F to be that" .... Collegium was not consulted ..... " Unfortunately, there is no precise finding in this regard in the said judgment. On the other hand, the content of para 22 of the judgment leaves me with an uncomfortable feeling that there was some departure from the law perhaps under some political pressure. G I wish that I were wrong. 62. The second event is a recommendation made by the then CJI apparently with the concurrence of the Collegium H 568 SUPREME COURT REPORTS [2015) 13 S.C.R. A for elevation of the petitioner. [See: P.O. Oinakaran (1) (supra); P.O. Oinakaran (2) (supra)]. The recommendation did not fructify. Serious allegations of unsuitability of the candidate whose name was recommended surfaced leading to a great deal of public debate. It is unpleasant to recount those B allegations. They are recorded in the abovementioned two judgments. There is no allegation of any failure on the part of the Collegium to comply with the procedure laid down in Second and Third Judges cases in making the ill-fated recommendation. But, the recommendation certainly exposed C the shallowness (at least for once) of the theory propounded by this Court in the trilogy of cases commencing from S.P. Gupta and ending with the Third Judges case that the CJ I and the Collegium are the most appropriate authorities to make 0 an assessment of the suitability of candidates for appointment as Judges of CONSTITUTIONAL COURTS in this country. A few more instances were mentioned at the bar during the course of hearing to demonstrate not only the shallowness of the theory but also the recommendations by the Collegium have not E necessarily always been in the best interests of the institution and the nation. It is not really necessary to place on record all the details but it is sufficient to mention that the earlier mentioned two cases are not certainly the only examples of the inappropriate exercise of the power of the Collegium. F 63. I am aware that a few bad examples of the improper exercise of the power does not determine the character of the power. Such inappropriate exercise of the power was resorted to also by the Executive already noticed earlier. Both branches of government are accusing each other of not being worthy of G trust. 55 At least a section of the civil society believes that both 55 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 H it conformed to a constitutional text or some hallowed principle, but because SUPREME COURT ADVOCATES-ON-RECORD 569 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] are right. The impugned AMENDMENT came in the backdrop A of the above-mentioned experience. 64. Independence of the judiciary is one of the basic features of the Constitution. A seven-Judge Bench of this Court in L Chandra Kumarv. Unionoflndia & Ors., (1997) 3 SCC B 261 already held that the power of judicial review of legislative action by the CONSTITUTIONAL COURTS is pcirt of the basic structure of the constitution and the exercise of such important function demands the existence of an independent judiciary. "78. The legitimacy of the power of courts within constitutional democracies to review legislative · action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that ·they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the c D E F 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 G 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." H 570 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provis•ons, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial . decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article SUPREME COURT ADVOCATES-ON-RECORD 571 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 226 and in this Court under Article 32 of the A Constitution is an integral and essential feature of the.Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations B can never be ousted or excluded." [emphasis supplied] This aspect of the matter is not in issue. None of the respondents contested that proposition. The text of the C Constitution bears ample testimony for the proposition that the Constitution seeks to establish and nurture an independent judiciary. The makers of the Constitution were eloquent about it. Various Articles of the Constitution seek to protect independence of the judiciary by providing appropriate D safeguards against unwarranted interference either by the Legislature or the Executive, with the Judges conditions of service and privileges incidental to the membership of the CONSTITUTIONAL COURTS, such as, salary, pension, security of tenure of the office etc. The scheme of the E Constitution in that regard is already noticed. 56 Such protections are felt necessary not only under our Constitution, but also several other democratic Constitutions (the details of some of them are already noticed in paras 25 to 27). Such F protections are incorporated in the light of the experience and knowledge of history. Various attempts made by Governments to subvert the independence of the judiciary were known to the makers of those Constitutions and also the makers of our Constitution. 65. Articles 124 and 217 deal with one of the elements necessary to establish an independent judiciary - the 56 See para 31 (supra) G H 572 SUPREME COURT REPORTS [2015] 13S.C.R. A appointment process. The Constituent Assembly was fully conscious of the importance of such an element in establishing and nurturing an independent judiciary.' It examined various models in vogue in other countries. Dr. Ambedkar's speech dated 241h May 194957 (quoted supra) is proof of such B awareness. The Constituent Assembly was fully appraised of the dangers of entrusting the power of appointment of members of the CONSTITUTIONAL COURTS exclusively to the Executive. At the same time, the Constituent Assembly was also sensitised to the undesirability of entrusting such a power C exclusively to the CJI or allowing any role to the Parliament in the matter of the judicial appointments. The probable consequences of assigning such a role were also mentioned by Dr. Ambedkar. The Constituent Assembly was informed of D the various models and institutional mechanisms in vogue under various democratic Constitutions for appointment of the members of the superior judiciary. The Constituent Assembly was told by Dr. Ambedkar that the model, such as the one contained in Articles 124 and 217 (as they stood prior to the E AMENDMENT) - may be regarded as sufficient for the moment. Various alternative models suggested by the members were not accepted. 58 The legislative history clearly F 57 Constituent Assembly Debates, 24th May 1949 (Vol. VIII) 58 On 24'" 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: G 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 Hous.es of Parliament." H SUPREME COURT ADVOCATES-ON-RECORD 573 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] indicates that the members of the Constituent Assembly clearly A refused to vest an absolute and unfettered power to appoint · Judges of the CONSTITUTIONAL COURTS in any one of the 3 branches of the Constitution. Constituent Assembly declined to assign any rol~ to the Parliament. It declined to vest an unbridled power in the executive. At the same time did not B agree with the proposal that the CJ l's concurrence is required for any appointment. 66. The system of Collegium the product of an interpretative gloss on the text of Articles 124 and 217 c undertaken in the Second and Third Judges case may or may not be the best to establish and nurture an independent and efficient judiciary. There are seriously competing views expressed by eminent people 59 , both on the jurisprudential soundness of the judgments and the manner in which the o Collegium system operated in the last two decades. "Prof. K.T. Shah: Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consulta.tion 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 E 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 F 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. MahboobAli Beig Sahib: G 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 m~de with the concurrence of the Chief Justice of India' be substituted." 59 See Footnote 50 (supra) H 574 SUPREME COURT REPORTS [2015] 13S.C.R. A 67. Neither the jurisprudential correctness of the concept of Collegium nor how well or ill the Collegium system operated in the last two decades is the question before us. The question is - whether such a system is immutable or is Parliament competent to amend the Constitution and create an alternative B mechanism for selection and appointment of the members of CONSTITUTIONAL COURTS of this country. 68. The basic objection for the impugned AMENDMENT is that it is destructive of the Constitutional objective of c establishment of an independent judiciary, and consequently the basic structure of-the Constitution. Therefore, it falls foul of the law laid down by this Court in Bharati case. D E F G H 69. To decide the correctness of the submission, it is necessary: ( 1) to identify the ratio decidendi of Bharati case where the theory of "basic structure" and "basic features" originated. (2) Whether the expressions "basic features" and "basic structure" of the Constitution are synonyms or do they convey different ideas or concepts? If so, what are the ideas they convey? (3) Have they been clearly identified by earlier decisions of this Court? (4 )Are there any principles of law laid down by this Court to identify the basic features of the Constitution? (5) If the two expressions "basic features" and "basic structure" mean two different things, is it the destruction of any one of them which renders any Constitutional amendment void or should such an amendment be destructive of both of them to become void. SUPREME COURT ADVOCATES-ON-RECORD · 575 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] (6) When can a Constitutional amendment be said to A destroy or abrogate either a "basic feature" of the Constitution or the "basic structure" of the Constitution? 70. In Bharati case, one of the questions was-whether 8 Article 368 confers unbridled power on the Parliament to amend the Constitution. That question arose in the background of an earlier decision of this Court in /. C. Golak Nath & Others v. State of Punjab & Another, (1967) 2 SCR 76260 wherein it was held that Article 368 conferred on Parliament a limited c power to amend the Constitution. A Constitutional amendment is 'law' within the meaning of Article 13(3)(a) 61 • Any Constitutional amendment which seeks to take away or even abridge any one of the rights guaranteed under Part-Ill of the Constitution would be violative of the mandate contained under D Article 13(2)62 and therefore illegal. 71. The correctness of/. C. Go/ak Nath was one of the questions which fell for consideration of the larger Bench of this Court in Bharati case. Eleven opinions were rendered. This Court by majority held that every Article 'Jf the Constitution E including the articles incorporating fundamental rights are amenable to the amendatory power of the Parliament63 under 60 Heard by a Bench of 11 Judges and decided by ·a majority of 6:5 61 Article 13(3)(a). "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the F force of law. ' 2 Article13(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. 63 (Per Sikri, CJ) - Para 292, "fundamental rights cannot be abrogated but G 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: H 576 SUPREME COURT REPORTS [2015] 13 S.C.R. A Article 368 which is a constituent oower but such power does not enable Parliament to alter the basic structure or framework of the Constitution. 64 B c b E F G H (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 Shela!, 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 Ill 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"." 64 See the summary of the majority of the judgment signed by 9 Judges, p. 1001 of (1973) 4 sec 225. SUPREME COURT ADVOCATES-ON-RECORD 577 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 72. That is the origin of the theory of basic structure of A the Constitution. Justice Shelat and Grover, J. used the expression basic elements and held that they cannot be abrogated or denuded of their identity. Justice Hegde and Mukherjea, J. used the expression basic elements or fundamental features and held that they cannot be abrogated B or emasculated. Justice Jaganmohan Reddy used the expression essential elements of the basic structure and held that they cannot be abrogated thereby destroying the identity 9f the Constitution. Justice Sikri and Khanna, J. employed the expressions basic structure or framework, foundation, the C basic institutional pattern, which is beyond the power of the Parliament under Article 368 of the Constitution. Some of the learned Judges mentioned certain features which according to them constitute basic or essential features etc. of the D Constitution. All of them were cautious to make it explicit that such features or elements mentioned by them are only illustrative but not exhaustive. In Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1980) 3 SCC 625, Justice Chandrachud, speaking for the majority of the Constitution E Bench, observed that para No.2 of the summary signed by the nine Judges correctly reflects the majority view. "12. The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution". Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view." F [emphasis supplied] Ii 578 A B c SUPREME COURT REPORTS [2015] 13 S.C.R. 73. Again in Waman Rao & Ors. etc. etc. v. Union of India & Ors., (1981) 2 SCC 362, Chief Justice Chandrachud speaking for another Constitution Bench observed: "The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution." (Para 15) [emphasis supplied] By then Justice Chandrachud had already expressed his opinion in Indira Nehru Gandhi v. Raj Narain, (1975) Supp D SCC 1 as follows: "663. There was some discussion at the Bar as to which features of the Constitution form the basic structure of the Constitution according to the majority decision in the Fundamental Rights case. E That, to me, is an inquiry both fruitless and irrelevant. F G H The ratio of the majority decision is not that some named features of the Constitution are a part of its basic structure but that the power of amendment cannot be exercised so as to damage or destroy the essential elements or the basic structure of the Constitution, whatever these expressions may comprehend." [emphasis supplied] The above passages, indicate that it is not very clear from Bharati case whether the expression basic structure, basic features and essential elements convey the same idea or different ideas. Therefore, it is necessary to examine some SUPREME COURT ADVOCATES-ON-RECORD 579 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] decisions where the legality of the constitutional amendments A was considered by this Court subsequent to Bharati case. 74. The earliest of them is Indira Nehru Gandhi case (supra). By the Constitution 391h Amendment Article 329Awas inserted. Clauses (4) and (5) of the said Article sought to B exclude the complaints of violation of the provisions of The Representation of the People Act, 1951 from scrutiny of any forum whatsoever in so far as such complaints pertain to the election of the Prime Minister or the Speaker of the Lok Sabha. The question whether such an amendment violated any one of c the basic features of the Constitution arose. It was argued that the amendment was violative of four basic features of the Constitution. They are: (1) Democratic form of Government; (2) Separation of Powers between the legislature, the executive and the judiciary; (3) the principle of Equality of all before the D law; and (4) the concept of the rule of law. A Constitution Bench of this Court held that the impugned clauses were beyond the competence of the Parliament's power under Article 368. 65 75. Four out of the five Judges agreed upon the conclusion that the impugned amendment was destructive of E 65 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 F 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 4 71) (SCC G 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)." H 580 SUPREME COURT REPORTS [2015] 13 S.C.R. A the basic structure of the Constitution. Each one of the Judges opined that the impugned provision violated a distinct basic feature of the Constitution leading to the destruction of the basic structure of the Constitution. B 76. In Minerva Mills case (supra), this Court once again was confronted with the problem of "basic structure of the Constitution".66 By the Constitution (42"d Amendment) Act among other things, Clauses (4) and (5) came to be added in Article 368 and Article 31-C came to be amended by c substituting certain words in the original Article. Chief Justice Chandrachud spoke for the majority of the Court and declared Sections 4 and 55 of the Constitution (42"d Amendment) Act to be violative of the basic structure of the Constitution. Dealing with the amendment to Article 368, this Court held: D E F G H "Para 16 ...... The majority (in Bharati case) conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And what fears can that judgment raise or misgivings generate if it only means this and no more. The preamble assures to the people of India a polity whose basic structure is described therein as a Sovereign Democratic Republic; Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India's sovereignty and its democratic, republican character. Democracy is not an empty dream. It is a meaningful concept whose essential attributes are recited in the 66 Para 1_3. 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. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] preamble itself: Justice - social, economic and political; Liberty of thought, expression, belief, faith and worship; and Equality of status and opportunity. Its aim, again as set out in the preamble, is to promote among the people an abiding sense of "fraternity assuring the dignity of the individual and the unity of the nation". The newly introduced clause (5) of Article 368 demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any "limitation whatever". No constituent power can conceivably go higher than the sky-high power conferred by clause (5), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend." 581 A B c D E [emphasis supplied] F The issue arising from the amendment to Article 31-C was identified to be - whether the directive principles of the State Policy contained in Part-IV can have primacy over the fundamental rights contained in Part-Ill of the Constitution - G because the 42"d amendment sought to subordinate the fundamental rights conferred by Articles 14 and 19 to the directive principles. This Court formulated the question - whether such an amendment was within.the amendatory power H 582 SUPREME COURT REPORTS [2015] 13S.C.R. A of the Parliament in view of the law laid down by this Court in B c D E Bharati case. The Court propounded that: "41 . ..... It is only if the rights conferred by these two Articles are not a part of the basic structure of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to a category of laws described in Article 31-C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitu.tion is, by the ratio in Kesavananda Bharati, not permissible to the Parliament." The Court finally reached the conclusion that the Parts Ill and IV of the Constitution are like two wheels of a chariot both · equally important and held: "56. . .... To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between th,e fundamental rights and directive principles is F an essential feature of the basic structure of the Constitution." [emphasis supplied] This Court concluded that the amendment to Article 31 C G is destructive of the basic structure as it abrogated the protection of Article 14 & 19 against laws which fall within the ambit of the description contained in Article 31 C. 77. In Waman Rao case (supra), Article 31-A(1)(a)which came to be introduced by the Constitution (First Amendment) H SUPREME COURT ADVOCATES-ON-RECORD 583 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Act was challenged on the ground that it damages the basic A structure of the Constitution. The said Article made a declaration that no law providing for acquisition by the State of any 'estate' or of 'any rights therein' etc. shall be deemed to be void on the ground that such law violated Articles 14, 19 and 31 of the Constitution. In other words, though Articles 14, B 19 and 31 remain on the statute book, the validity of the category of laws described in Article 31-A(1 )(a) cannot be tested on the anvil of Articles 14, 19 and 31. Dealing with the permissibility of such an amendment, the Court held as follows: c "In any given case, what is decisive is whether, insofar as the impugned law is concerned, the rights available to persons affected by that law under any of the articles in Part Ill are totally or substantially withdrawn and not whether the articles, the D application of which stands withdrawn in regard to a defined category of laws, continue to be on the statute book so as to be available in respect of laws of other categories. We must therefore conclude that the withdrawal of the application of Articles 14, E 19 and 31 in respect of laws which fall under clause (a) is total and complete, that is to say, the application of those Articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit F of clause (a). We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging . or destroying the basic structure of the Constitution. The question as to whether the basic structure G is damaged or destroyed in any given case would depend upon which particular Article of Part Ill is in issue arid whether what is withdrawn is H 584 SUPREME COURT REPORTS [2015] 13 S.C.R. A quintessential to the basic s.tructure of the Constitution." (Para 14) · [emphasis supplied] But this Court finally reached the conclusion that the B Amendment did not damage or destroy the basic structure and, therefore, upheld theAmendment 67 • Such a conclusion was reached on the basis of the logic- c D E "29. The FirstAmendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic· structure of the Constitution. It is impossible for any government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law. . .... " This Court held that though the protection of Articles 14 and 19 is totally abrogated, the withdrawal or abrogation of such protection does not necessarily result in damage or destruction of the basic structure of the Constitution. In other words, this Court held that if in the process of seeking to F achieve a larger constitutional goal of removing social and economic disparities in the agricultural sector and effectuating the twin principles contained in Article 39(b) and (a) if new inequalities result marginally and incidentally they cannot be said to be destructive of the basic structure of the Constitution. G H 67 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. SUPREME COURT ADVOCATES-ON-RECORD 585 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 78. Both Minerva Mills and Waman Rao dealt with the A abrogation of Articles 14 and 19 or absolute withdrawal of the protection of those fundamental rights with reference to certain classes of legislation. This Court held in the first of the above mentioned cases that such withdrawal amounted to abrogation of a basic feature and, therefore, destructive of the basic B structure of the Constitution and in the second case this Court carved out an exception to the rule enunciated in Minerva Mills and held that such abrogation insofar as the law dealing with agrarian reforms did not destroy the basic structure. These . c cases· only indicate that; (i) the expressions 'basic structure' and 'basic features' convey two different ideas, (ii) the basic features are COMPONENTS of basic structure. It also follows from these cases that either a particular Article or set of Articles can constitute a basic feature of the Constitution. Amendment D of one or some of the Articles constituting a basic feature may or may not result in the destruction of the basic structure of the Constitution. It all depends on the context. 79. This Court in S.R. Bommaiv. Unionof/ndia, (1994) 3 sec 1, recognised the concept of secularism as one of the E basic features of the Constitution not because any one of the Articles of the Constitution made any express declaration to that effect but such a conclusion followed from the scheme of the various provisions of the Constitution.68 80. This Court in M. Nagaraj & Others v. Union of India F & Others69, (2006) 8 SCC 212, deduced the principle that the process of identifying the basic features of the Constitution 66 See paras 25 to 29 -Ahmadi, J., para 145- Sawant, J., paras 183 to 186 - Ramaswamy, J., para 304 - Jeevan Reddy, J. G 69 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 4 -~' context of the promotion in the Government service. Such an amendment -was challenged to be violative of the basic structure of the Constitution. H 586 SUPREME COURT REPORTS [2015] 13 S.C.R. A lies in the identification of some concepts which are beyond the words of any particular provision but per\tade the scheme of the Constitution. Some of these concepts may be so important and fundamental as to qualify to be called essential features of the Constitution or part of the basic structure of the B Constitution therefore not open to the amendment. c D E F G. H This Court specified the process by which the basic features of the Constitution are to be identified. The Court held: "23 ..... Therefore, it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular proyisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Articles 14, 19 and 21 .. Some of these principles may be so important and fundamental, as to qualify as "essential features" or part of the "basic structure" of the Constitution, that is to say, they are not open to amendment. However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution. 24. The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism, etc. are beyond the words of a particular provision. They ate systematic SUPREME COURT ADVOCATES-ON-RECORD 587 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] and structural principles underlying and connecting A various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not· expressly stated in the form of rules. B 25. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, is the c second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of D Parliament.. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so E fundamental as to bind even the amending power of Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure." F [emphasis supplied] 81. In l.R. Coelho (Dead) By LRs v. State ofT.N. (2007) 2 SCC 1, this Court ruled; "129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be G H 588 SUPREME COURT REPORTS (2015] 13 S.C.R. A no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty B to decide whether the limits have been transgressed has been placed on the judiciary. 130. Realising that it is necessary to secure the enforcement of the fundamental rights, power for c such enforcement ~as been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part Ill o and other parts of the Constitution. It may be noted that the mere fact that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. E Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure - rule of law, separation of powers - the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, F does not mean that it is not part of. the basic structure." [emphasis supplied] 82. An analysis of the judgments of the above mentioned G cases commencing from Bharati case yields the following propositions: H (i) Article 368 enables the Parliament to amend any provision of the Constitution; SUPREME COURT ADVOCATES-ON-RECORD 589 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] (ii) The power under Article 368 however does not enable A the Parliament to destroy the basic structure of the Constitution; (iii) None of the cases referred to above specified or declared what is the basic structure of the Constitution; 8 (iv) The expressions "basic structure" and "basic features" convey different ideas though some of the learned Judges used those expressions interchangeably. (v) The basic structure of the Constitution is the sum total C of the basic features of the Constitution; (vi) Some of the basic features identified so far by this Court are democracy, secularism, equality of status, independence of judiciary, judicial review and some of the fundamental rights; D (vii) The abrogation of any one of the basic features results normally in the destruction of the basic structure of the Constitution subject to some exceptions; (viii) As to when the abrogation of a particular basic E · feature can be said to destroy the basic structure of the Constitution depends upon the nature of the basic feature sought to be amended and the context of the amendment. There is no universally applicable test vis- a-vis all the basic features. F 83. Most of the basic features identified so far in the various cases referred to earlier are not emanations of any single Article of the Constitution. They are concepts emanating from a combination of a number of Articles each of them G creating certain rights or obligations or both (for the sake of easy reference I call them "ELEMENTS"). For example, (a) when it is said that the democracy is a basic feature of our Constitution, such a feature, in my opinion, H 590 SUPREME COURT REPORTS [2015] 13 S.C.R. A emerges from the various articles of the Constitution which provide for the establishment of the legislative bodies70 (Parliament and the State Legislatures) and the Articles which prescribe a periodic election to these bodies71 based on adult franchise 72; the role assigned B to these bodies, that is, to make laws for the governance of this Country in their respective spheres 73; and the establishment of an independent machinery 74 for conducting the periodic elections etc.; c · (b) the concept of secularism emanates from various articles contained in the fundamental rights chapter like Articles 15 and 16 which prohibits the State from practicing any kind of discrimination on the ground of religion and Articles 25 to 30 which guarantee certain o fundamental rights regarding the freedom of religion to every person and the specific mention of such rights with reference to minorities. 84. The abrogation of a basic feature may ensue as a consequence of the amendment of a single Article in the cluster E of Articles constituting the basic feature as it happened in Minerva Mills case and Indira Nehru Gandhi case. 85. On the other hand, such a result may not ensue in the context of some basic features. For example, Article 326 F prescribes that election to Lok Sabha and the Legislative Assemblies shall be on the basis of adult suffrage. Adult suffrage is explained in the said Article as: G H " ... that is to say, every person who is a citizen of India and who is not less than eighteen years of 10 Articles 79-84 and 168-173 71 Articles 83 and 172 12 Article 326 73 Articles 245 and 246 etc. 74 Article 324 SUPREME COURT ADVOCATES-ON-RECORD . 591 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] age on such date as may be fixed in that behalf by A or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence: unsoundness of mind, crime or corrupt or illegal B practice, shall be entitled to be registered as a voter at a("ly such election." One of the components is that the prescription of the minimum age limit of 18 years. Undoubtedly, the right created c under Article 326 in favour of citizens of India to participate in the election process of the Lok Sabha and the Legislative Assemblies is an integral part (for the sake of convenience, I call it an ELEMENT) of the basic feature i.e. democracy. However, for some valid reasons, if the Parliament were to D amend Article 326 fixing a higher .minimum age limit, it is doubtful whether such an amendment would be abrogative of the ba.sic feature of democracy thereby resulting in the destruction of the basic structure of the Constitution. It is worthwhile remembering that the minimum age of 18 years E occurring under Article 326 as on today came up by way of the Constitution (Sixty-first Amendment) Act, 1988. Prior to the· amendment, the minimum age limit was 21 years. 86. As held by this Court in Minerva Mills case, the F amendment of a single article may result in the destruction of the basic structure of the Constitution depending upon the nature of the basic feature and the context of the abrogation of that article if the purpose sought to be achieved by the Article constitutes the quintessential to the basic structure of the G Constitution. 87. In my opinion, these cases also are really of no help for determining the case on hand as they do not lay down any H 592 SUPREME COURT REPORTS [2015] 13 S.C.R. A general principle by which it can be determined as to when · can a constitutional amendment be said to destroy the basic structure of the Constitution. In the case on hand, the identity of the basic feature is not in dispute. The question is wh.ether the AMENDMENT is abrogative of the independence of B judiciary-(a basic feature) resulting in the destruction of the basic structure of the Constitution. 88. By the very nature of the basic feature with which we are dealing, it does not confer any fundamental or constitutional c right in favour of individuals. It is only a means for securing to the people of India, justice, liberty and equality. It creates a collective right in favour of the polity to have a judiciary which is free from the control of the Executive or the Legislature in its essential function of decision making. D 89. The challenge to the AMENDMENT is required to be examined in the light of the preceding discussion. The petitioners argued that (i) Independence of the judiciary is a basic feature (COMPONENT) of the basic structure of the Constitution; (ii) the process of appointment of members of E constitutional courts is an essential ingredient (ELEMENT) of such COMPONENT; (iii) the process prescribed under unamended Articles 124 and 217, as interpreted by this Court in the Second and Third Judges cases, is a basic feature and F was so designed by framers of the Constitution for ensuring independence of the judiciary, by providing for primacy of the opinion of the CJI (Collegium); and not of the opinion of the President (the Executive); (iv) the AMENDMENT dilutes such primacy and tilts the balance in favour of the Executive, thereby G abrogating a basic feature, leading to destruction of the basic structure. H 90. The prime target of attack by the petitioners is Section 2(a) of the AMENDMENT by which the institutional mechanism for appointment of judges of constitutional courts is replaced. SUPREME COURT ADVOCATES-ON-RECORD 593 .· ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] According to the petitioners, the AMENDMENT is a brazen A attempt by the Executive branch to grab the power of appointing Judges to CONSTITUTIONAL COURTS. Such shift of power into the hands of Executive would enable packing of the CONSTITUTIONAL COURTS with persons who are likely to be less independent. B 91. It is further argued that the principles laid down in the Second and Third Judges cases are not based purely on the interpretation of the text of the Constitution as it stood prior to the impugned AMENDMENT but also on the basis of a c fundamental Constitutional principle that an independent judiciary is one of the basic features of the Constitution. The procedure for appointment of the Judges of the CONSTITUTIONAL COURTS is an important element in the establishment and nurturing of an independent judiciary. Such D conclusion not only flows from the text of the Articles 124 and 217 as they stood prior to the impugned AMENDMENT but flow from a necessary implication emanating from the scheme of the Constitution as evidenced by Articles 32, 50, 112(3)(d), 113(1), 203(1), 125(2), 221(2)etc. E 92. Mr. Nariman, learned Senior Counsel appearing for one of the petitioners emphatically submitted that he is not against change of the mechanism provided under Articles 124 and 217. He submitted that this aspect of the matter fell for F consideration of Justice M.N. Venkatachaliah Commission 75, which also recommended creation of a National Judicial Appointments Commission but with a slightly different composition 76• If really Parliament wanted to change in the 75 The National Commission to Review the Working of the Constitution G (NCRWC), 2002 chaired by Justice M.N. Venkatachaliah 76 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 18'" May, 1990 (9'" 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 H 594 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. mechanism for the selection of the members of the superior judiciary, the model recommended by the Justice M.N. Venkatachaliah Commission could well have been adopted. According to Mr. Nariman the model identified by Venkatachaliah Commission is more suitable for preservation of independence of the judiciary than the model adopted in the AMENDMENT. Mr. Nariman further argued that no reasons are given by the Union of India explaining why recommendations of the Justice M.N. Venkatachaliah Commission were not accepted. 93. On the other hand, it is submitted by the learned Attorney General and other senior counsel appearing for various respondents; 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 2. Two senior most judges of the Supreme Court: 3 The Union Minister for Law and Justice: 4 One eminent person nominated by the President after consulting the CJI Chairman Member Member 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." · SUPREME COURT ADVOCATES-ON-RECORD 595 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] (i) Parliament's power to amend the Constitution is A plenary subject only to the limitation that it cannot abrogate the basic structure of the Constitution. The AMENDMENT in no way abrogates the basic structure of the Constitution. B (ii) Independence of judiciary is not the only objective envisaged by the Constitution, it also envisages an efficient judiciary. To achieve such twin objects, Parliament in its wisdom thought that the selection process of the members of the CONSTITUTIONAL c COURTS as it existed prior to the AMENDMENT required modification. The wisdom of Parliament is not amenable to the scrutiny of this Court, even in the context of ordinary legislation. Logically, a constitutional amendment therefore should enjoy a greater degree of D immunity. In other words, where the goal sought to be achieved by Parliament is constitutionally legitimate, the legislation by which such a goal is sought to be achieved can be questioned only on limited grounds. They are (i) lack of E legislative competence, (ii) the legislation violates any one of the f~ndamental rights enumerated in Part 111 of the Constitution, or is in contravention of some other express prohibition of the Constitution. Absent such F objectionable features, the possibility that the goal sought to be achieved by the legislation can be achieved through modes other than the one chosen by the legislation can never be a ground for invalidating even an ordinary legislation as has been consistently held by this Court. G In the case of a constitutional amendment question of legislative competence in the above-mentioned sense and conflict with the other provisions of the Constitution are irrelevant and does not arise. H 596 A B c SUPREME COURT REPORTS [2015) 13 S.C.R. (iii) Checks and balances of powers conferred by the Constitution on the three great branches of governance - Legislature, Executive and Judiciary is the most basic feature of all democratic constitutions. Absolute, independence of any one of the three branches is inconsistent with core democratic values and the scheme of our Constitution. This Court by an interpretative process of the Constitution as it stood prior to the AMENDMENT disturbed such balance. The AMENDMENT only seeks to restore such balance and therefore cannot be said to be destructive of the basic structure of the Constitution. (iv) That the law laid down by this Court in Second and Third Judges case is no more relevant in view of the fact D that the text of the Constitution which was the subject matter of interpretation in the said cases stands amended. In the light of well settled principles of interpretation of statutes the law laid down in those two cases is no more a good law. It is further argued that in E the event this Court comes to the conclusion that the law laid down in the abovementioned two judgments has some relevance for determining the constitutional validity of the AMENDMENT and also the correctness of the F G H principles laid down in those judgments requires reconsideration by a Bench of appropriate strength. According to the Attorney General and other learned counsel for respondents, the abovementioned two judgments are contrary to the text of the Constitution as it stood then and in complete disregard of the constitutional history and background of the relevant provisions. It is further submitted that under the scheme of the Constitution, neither this Court nor High Courts are conferred unqualified autonomy though a large measure SUPREME COURT ADVOCATES-ON-RECORD 597 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] of autonomy is conferred under various provisions. For A example the salaries, privileges and allowances, pension etc. could still be regulated by law made by Parliament under Article 125 and 221, 137, 140, 145 etc. (v) It is submitted that independence of the judiciary is B indisputably a basic feature of the Constitution. An essential element of this basic feature is that the President (Executive) should not have an unfettered discretion in such appointment process but not that the opinion of the CJI (Collegium) should have primacy or c dominance. The judgments of this Court in the Second and Third Judges cases are not only counter textual but also plainly contrary to the intent of the Constituent Assembly and clearly beyond limits of judicial power, it is an e~ercise of constituent authority in the disguise of D interpretation. Under the AMENDMENT, the President has no discretion in the matter of appointment of Judges of CONSTITUTIONAL COURTS. He is bound by the recommendation of the NJAC wherein members of the judiciary constitute the single largest group. Parliament E exercising constituent power (under Article 368) considered it appropriate that representatives of the Civil Society should be accorded a participatory role in the process of appointments to CONSTITUTIONAL COURTS and that their presence would be a check on F potential and consequently ruinous 'trade offs'; (i) between and amongst the three members representing the judiciary and (ii) between the judiciary and the executive; and would accentuate transparency to what had hitherto been an opaque process. Such wisdom of G the Parliament in not open to question. It is an established and venerated principle that the Court would not sit in judgment over the wisdom of Parliament even H 598 A B c D E F G . SUPREME COURT REPORTS [2015] 13 S.C.R. in respect of an ordinary legislation; a constitutional amend~ent invites a greaterdegree of deference. (vi) Even under the scheme of the AMENDMENT, judiciary has a pre-dominant role. The apprehension that, under the new dispensation, Executive would have the opportunity of packing the CONSTITUTIONAL COURTS of this country with cronies is illogical and baseless. The presence of three senior most Judges of this Court in the. NJAC is a wholesome safeguard against such possibility. Any two of the three Judges can stall such an effort, if ever attempted by the Executive. (vii) The fact that a Commission headed by Justice M.N.Venkatachaliah made certain recommendations need not necessarily mean that the model suggested by the Commission is the only model for securing independence of the judiciary or the best model. At any rate, the choice of the appropriate model necessarily involves a value judgment. The model chosen by the Parliament in exercise of its constituent powers cannot be held to be unconstitutional only on the ground that in the opinion of some, there are better models or alternatives. Such a value judgment is exclusively in the realm of the Parliament's constituent powers. It is also argued that the mechanism for selection of members of the constitutional courts as expounded in the Second and the Third Judges cases, even according to Mr. Nariman's opinion is not the best. Mr. Nariman is on record stating so in one of the books authored by him "Before Memory Fades :AnAutobiography"77• 77 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 Cowt Advocates-on-Record Association vs Union of India. It is a decision of the year 1993 and is better known as the H Second Judges Case." SUPREME COURT ADVOCATES-ON-RECORD 599 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 94. Any appointment process established under the A Constitution must necessarily be conducive for establishment of not only an independent judiciary but also ensure its efficiency. Two qualities essential for preservation of liberty. "In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Some difficulties, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insfst rigorously on the principle: first, because peculiar qualifications being essential in the members, the pri.mary B c D E F 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 G 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." H 600 SUPREME COURT REPORTS [2915] 13 S.C.R. A consideration ought to be to select that mode of choice which best secures these qualifications."78 [emphasis supplied] B Judges who could decide causes brought before them expeditiously and consistent with applicable principles of jurisprudence, generate confidence, in litigants and the polity that they indeed dispense justice. Whether the appointment process prior to the AMENDMENT yielded such appointments C has been deeply contentious. As submitted by the learned Attorney General, the history of appointments to CONSTITUTIONAL COURTS in our Republic could be divided into two phases - pre and post Second Judges case. No doubt during both phases, the appointment process yielded D mixed results, on the in<;lex of both independence and efficiency. Some outstanding and some not so outstanding persona came to be appointed in both phases. Allegations of seriously unworthy appointments abound but our system provides for no mechanism for audit or qualitative analysis. E Such systemic deficit has pathological consequences. 95. Parliament representing the majoritarian will was satisfied that the existing process warrants change and acted in exercise of its constituent power and concomitant discretion. F Such constituent assessment of the need is clearly off limits to judicial review. Whether curative ushered in by the AMENDMENT transgresses the permissible limits of amendatory power is certainly amenable to Judicial Review because of the law declared in Bharati case and followed G consistently thereafter. H 96. The text and scheme of the AMENDMENT excludes discretion to the President in making appointments to 78 See Federist No.51 - (Hamilton or Madison) (1788) SUPREME COURT ADVOCATES-ON-RECORD 601 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] CONSTITUTIONAL COURTS and the President is required A to accept recommendations by the NJAC. The amended Articles stipulate that judges of CONSTITUTIONAL COURTS shall be appointed by the President ....... on the recommendation of the NJAC. 97. Prior to the AMENDMENT, there were only two B parties to the appointment process, the Executive and the Judiciary. The relative importance of their roles varied from time to time. The AMENDMENT makes three important changes - (i) primacy of judiciary is whittled down; (ii) role of c the executive is also curtailed; and (iii) representatives of civil society are made part of the mechanism. 98. Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There D is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary. Such E an assumption has been proved to be of doubtful accuracy. It is Parliament's asserted assumption that induction of civil society represen.tation will bring about critically desirable transparency, commitment and participation of the ultimate F stakeholders - the people. The fountain of all constitutional authority, to ensure appointment of the most suitable persons with due regard to legitimate aspirations of the several competing interests. Various democratic societies have and are experimenting with models involving association of civil G society representation in such selection process. Assessment of the product of such experiments are however inconclusive. The question is not whether the model conceived by the AMENDMENT would yield a more independent and efficient H 602 SUPREME COURT REPORTS [2015] 13 S.C.R. A judiciary. The question is whether Parliament's wisdom and authority to undertake such an experiment by resort to constituent power is subject to curial audit. 99. As rightly pointed out by the Attorney General, the 8 basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in non investiture of absolute power in the President (Executive) to choose and appoint judges of CONSTITUTIONAL COURTS. That feature is not abrogated by the AMENDMENT. The Executive may at best c only make a proposal through its representative in the NJAC, i.e. the Law Minister. Such proposal, if considered unworthy,. can still be rejected by the other members of the NJAC. The worth of a candidate does oot depend upon who proposes the name nor the candidate's political association; if any, should o be a disqualification. E F G H " ......... , even party men can be fiercely independent after being appointed judges, as has been proved by some judges who were active in politics. Justice K.S. Hegde served as a member of Rajya Sabha from 1952 to 1957 and was elevated as a High Court judge directly from Rajya Sabha. Though he was a congress MP, he proved to be so independent that he was superseded in 1973 in the appointment of the CJI by his own party's government. Justice Tekchand was also a member of Rajya Sabha before becoming a judge.· He was appointed when he was a sitting MP, but he proved to be a fine judge whose report on prohibition is a landmark. Another prominent example is Justice V.R. Krishna Iyer who was made a judge of the Kerala High Court in 1968, though he had not only been an MLA but also a minister in SUPREME COURT ADVOCATES-ON~RECORD 603 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] the Namboodiripad government (1957-59) in · Kerala. In 1973, Justice S.M. Sikri, the CJI, was totally opposed to the elevation of Justice Iyer to the apex court on the ground that he had been a politician who held the office of a cabinet minister in Kerala. It was AN. Ray who cleared his elevation, and Justice Iyer proved to be a luminous example of what a judge ought to be. He was one of the finest judges who ever sat on the bench of the Supreme Court who tried to bridge the gap between the Supreme Court and the common people. There is also the example of Justice Bahrul Islam who served as a member of Raj ya Sabha for 10 years before being appointed a High Court judge. He was subsequently elevated to the Supreme Court. He absolved Jagannath Mishra, the Chief Minister of Bihar, in the urban cooperative bank scandal, and immediately thereafter resigned to contest the · Lok Sabha election as a Congress( I) candidate from Barpeta - he never enjoyed a clean reputation. So, it is not proper to make any generalization. People of impeccable rectitude have to be handpicked." 79 A B c D E 100. Critical analysis of Articles 124, 217 and 124-Aand 124-B leads to the position that the Executive Branch of F Government cannot push through an 'undeserving candidate' so long as at least two members representing the Judicial Branch are united in their view as to unsuitability of that candidate. Even one eminent person and a single judicial member of NJAC could effectively stall entry of an unworthy G 79 Sudhanshu Ranjan, 'Justice, Judocracy and Democracy in India: Boundaries and Breaches', p.185-186 H .. 604 SUPREME COURT REPORTS [2015] 13 S.C.R. A appointment. Similarly, the judicial members also cannot push through persons of their choice unless at least one other member belonging to the non-judicial block supports the candidate proposed by them. B 101. A democratic form of government is perhaps the best institution invented for preservation of liberties. At least that is the belief of societies which adopt this model of governance. True, there are many variants of democracy. Analysis of the variants is outside the scope of this judgment. C Under any constitutional model, primary responsibility to preserve liberties of the people is entrusted to the legislative and executive branches. Such entrustment is predicated on the structural and empirical assumption that legislators chosen periodically would strive to protect the liberties of their "only D masters - the people". This is for two reasons operating in tandem. They are the obligation to discharge the trust reposed and the fear of losing the glory of being the chosen representative. An in built possibility in the system of periodic elections. E 102. To assume or assert that judiciary alone is · concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved. Eminent constitution jurist and . F teacher Laurence H. Tribe has the following to say in the context of the American experience. G H "No one should assume that the Supreme Court need always strike down laws and executive actions in order to protect our liberties. On the contrary, sometimes the Court best guarantees our rights by deferring to, rather than overruling, the political branches. When the Supreme Court, from 1900 to 1937, struck down dozens of child labor laws, .. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] minimum wage laws, working condition regulations, and laws protecting workers; rights to organize unions, on the ground that such rules infringed on property rights and violated "liberty of contract," the only rights the Court really vindicated were the rights to be overworked, underpaid, or unemployed. The Court eventually reversed itself on the~e issues when it recognized that, in twentieth-century America, such laws are not intrusions upon human freedom in any meaningful sense, but are instead entirely reasonable and just ways of combating economic subjugation. In upholding a minimum wage law in the watershed case of we·st Coast Hotel v. Parrish, the Supreme Court concluded in 1937 that, in the light of "recent economic experience", such statutes were justified because they prevent "the exploitation of a class of workers in ways detrimental to their health and well being." Naturally, in this imperfect world, the Supreme Court has 605 A B c D not always guarded our liberties as jealously as it should. E During the First World War and again in the McCarthy era, the Court often shrank from the affirmation of our rights to think and spes:ik as we believe. And in the war hysteria following bombing of Pearl Harbor, the Supreme Court in Korematsu v. United States upheld the imprisonment of thousands of F Americans of Japanese ancestry who had committed no crime. In light of such lapses, some have argued that when it comes to protecting fundamental rights, the Supreme Court is essentially redundant: on most occasions the Congress and the President will adequately safeguard our rights, and in those G difficult times when the political branches cannot be counted on, neither can the Court."80 80 Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11 H 606 SUPREME COURT REPORTS [2015] 13S.C.R. A 103. Our experience is not dissimilar. Judgments in A. K. Gopalan 81, Sanka/chand 82 and ADM Jaba/puri 3 (to mention a few) should lead to an identical inference that in difficult times when political branches cannot be counted upon, neither can the Judiciary. The point sought to be highlighted is that judiciary B is not the ONLY constitutional organ which protects liberties of the people. _Accordingly, primacy to the opinion of the judiciary in the matter of judicial appointments is not the only mode of securing independence of judiciary for protection of liberties. Consequently, the assumption that primacy of the Judicial C Branch in the appointments process is an essential element and thus a basic feature is empirically flawed without any basis either in the constitutional history of the Nation or any other and normatively fallacious apart from being contrary to political 0 theory. 104. I now deal with the submission that presence of the law minister in the NJAC undermines independence of judiciary. According to the petitioners, the presence of a member of the Executive invariably has the effect of shifting E the power dynamics. The presence of the Law Minister in the NJAC which confers 1/6 of the voting power per se undermines the independence of the judiciary. The submission is untenable. The Executive with a vast administrative machinery under its control is capable of making enormous and valuable F contribution to the selection process. The objection is justified to some extent on the trust deficit in the Executive Branch in the constitutional sense 84, to be a component of the NJAC. " A.K Gopalan v. State of Madras AIR 1950 SC 27 82 Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 G 83 ADM Jabalpur Vs_ s_s. Shukla Etc. Etc. AIR 1976 SC 1207 H "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 mol!t 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 SUPREME COURT ADVOCATES-ON-RECORD 607 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] The same logic applies a fortiari to the Judicial branch, notwithstanding the belief that it is the least dangerous branch. The Constituent Assembly emphatically declined to repose exclusive trust even in the CJI. To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by B chosen representatives of the people. Under the scheme of our Constitution, the Executive is.chartered clear authority to administer critical areas such as defence of the realm, internal security, maintenance of public order, taxation, management . of fiscal policies and a host of other aspects, touching every C aspect of the administration of the Nation and lives of its people. In this context, to hold that it should be totally excluded fromthe process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of D democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy whose models were examined A by the Constituent Assembly and none other were brought to our notice either. Established principles of constitutional government, practices in other democratic constitutional E 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 F 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 G 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." H 608 SUPREME COURT REPORTS [2015] 13 S.C.R. A arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature. The Attorney General is right in his submission that exclusion of the Executive Branch is destructive of the basic B feature of checks and balances - a fundamental principle in constitutional theory. 105. That takes me to the second provision which is under challenge. Article 124A.(1 )(d) which stipulates that the c NJAC should consist of two eminent persons85• Considerable debate took place during the course of hearing regarding validity of this provision, the gist of which is captured in the judgment of Khehar, J. The attack is again on the ground that the provision is utterly without guidance regarding the choice o of eminent persons. Petitioners argued that (i) there could be bipartisan compromise between the party in power and the opposition, resulting in sharing the two slots earmarked for eminent persons. Such possibility would eventually enable political parties to make appointments purely on political E considerations, thereby destroying independence of judiciary; (ii) even assuming that the two eminent persons nominated are absolute political neutrals, but are strangers to the judicial 65 Article 124A. National Judicial Appointments Commission.- (1) There F shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely- JOO< JOO( JOO( JOO( (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- G 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. H Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination .. SUPREME COURT ADVOCATES-ON-RECORD 609 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] system, they would not be able to make any meaningful A contribution to the selection process, as they would have no resources to collect appropriate data relevant for the decision making process; (iii) the possibility of two eminent persons vetoing the candidature of a person approved unanimously by the three judicial members of the NJAC itself is destructive of B the basic structure. 106. Transparency is a vital factor in constitutional governance. This Court in innumerable cases noted that constitutionalism demands rationality in every sphere of State c action. In the context of judicial proceedings, this Court held in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr.B6: "20 .................... Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of . the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room. As Bentham has observed: "In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in 86 AIR 1967 SC 1, para 20. D E F G H 610 SUPREME COURT REPORTS [2015] 13 S.C.R. A proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against B improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity." Transparency is an aspect of rationality. The need for c transparency is more in the case of appointment process. D E Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Ruma Pal , J. is on record - "Consensus within the collegium is sometimes resolved through a trade-off resulting in dubioµs 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."87 One beneficial purpose the induction of representatives of civil society would hopefully serve is that it acts as a check on unwholesome trade-offs within the collegium and incestuous F accommodations between Judicial and Executive branches. G H To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society .. Iyer, J. cautioned - "74 ............. And when criteria for transfers of Judges are put forward by the President which may upset past practices we must, as democrats, " "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at the 5'" V.M. Tarkunde Memorial Lecture on 10.11.2011 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [CHELAMESWAR; J.] remember Learned Hand who once said that the spirit of liberty is "the spirit which is not too sure that it is right". That great Judge was fond of recalling Cromwell's statement : "I beseech ye in the bowels of Christ, think that ye may be mistaken." He told a Senate Committee. "I should like to have that written over the portals of every church, every school and every court-house, any may I say, of every legislative body in the United States. I should like to have every court begin "I beseech ye in the bowels of Christ, think that we may be mistaken." (Yale Law Journal: Vol.71 : 1961, November part)."88 611 A B c [emphasis supplied] Replace "transfers" and "President" with "appointments" D and "Parliament" and Iyer, J's admonition is custom made to answer the objections (ii) and (iii) of the petitioners. 107. There is a possibility that the apprehension expressed by the petitioners might come true. The possibility E of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power. Bachawat, J. in/. C. Golak Nath (supra) opined as follows: "235. It is said that the Parliament is abusing its power of amendment by making too many frequent changes. If the Parliament has the power to make the amendments, the choice of making any particular amendment must be left to it. Questions of policy cannot be debated in this Court. The possibility of abuse of a power is not the test of its existence: In Webb v. Outrim (1907]A.C. 81, Lord 88 Sanka/chand case (supra) para 78. F G H 612 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. Hobhouse said, "If they find that on the due construction of the Act a legislative power falls within S. 92, it would be quite wrong of them to deny its existence because by some possibility it may of be abused, or limit the range which otherwise would be open to the Dominion Parliament". With reference to the doctrine of implied prohibition against the exercise of power ascertained in accordance with ordinary rules of construction, Knox C.J., in the Amalgamated Society of Engineers v. The Adelaide Steamship Company Limited 129 C.L.R. 151, said, "It means the necessity of protection against the aggression of some outside and possibly hostile body. It is based on distrust, lest powers, if once conceded to the least degree, might be abused to the point of destruction. But possible abuse of power is no reason in British law for limiting the natural force of the language creating them". However, it was a dissenting opinion. But this Court in l.R. Coelho (supra), Sabharwal, J. speaking for a unanimous Bench of nine Judges, held as follows: "76. It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31 B has been abused and that abuse is likely to continue. It is submitted that the Ninth Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of Article 31 B is not in question before us. Further, mere possibility of abuse is not a relevant test to determine the validity of a provision. The people, through the Constitution, SUPREME COURT ADVOCATES-ON-RECORD 613 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] have vested the power to make laws in their A representatives through Parliament in the same manner in which they have entrusted the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the judiciary. We, therefore, cannot make any B assumption about the alleged abuse of the power." [emphasis supplied] In the final analysis, all power could be misused including judicial power. The remedy is not to deny grant of power but to C structure it so as to eliminate the potential for abuse. The power to nominate two eminent persons is conferred upon three high constitutional functionaries-the Prime Minister, the Leader of the Opposition and the CJI. It is elementary political knowledge that the Prime Minister and the Leader of D Opposition would always have conflicting political interests and would rarely agree upon any issue. Nonetheless, possibility of a bipartisan compromise cannot be ruled out. Though, the presence of CJI in the Committee should normally be a strong deterrent, the possibility of the CJI failing to perceive a political E compromise or helplessness in the event of such compromise, cannot be ruled out. 108. It is incontestable that nomination of eminent persons is not immune to judicial review. There is thus F possibility of delay in functioning of NJAC and inevitably the process of appointments to CONSTITUTIONAL COURTS. It is, therefore, essential that there must be an entrenched process of nomination of eminent persons which eliminates risk of possible bipartisan q:mipromises. The only conceivable G curative is to incorporate another tier of scrutiny in the process of nomination. In my considered view, the following safeguard would bring this process within permissible contours of the H 614 SUPREME COURT REPORTS [2015] 13 S.C.R. A basic feature simultaneously eliminating the 'delay factor'. The Committee contemplated under Article 124-A(1 )(a) should prepare a panel of three members for each of the two categories of the nominees (for eminent persons)- in all a panel of six persons. Such panel should be placed before the B full house of the Supreme Court for voting. Nominees securing · the highest vote in each of the two categories should eventually be nominated as eminent members of the NJAC. Such procedure would still preserve the choice of eminent persons primarily with the Committee contemplated under Article 124- C A, while incorporating sufficient safeguard against possible abuse of the power by the Committee. 109. The third provision whose validity is under attack is Article 124 B(c), which obligates NJAC to ensure that the D person recommended is of ability and integrity. The challenge is on the ground that the AMENDMENT does not lay down any guidelines to be followed by the NJAC for assessing ability and integrity. Even in the absence of any express declaration, such an obligation is inherent and implied, having regard to E functional responsibilities entrusted to the NJAC. The precision is only an abundanti cautela. Perhaps prompted by certain bad experiences of the past, both pre and post Second Judges case . . F 110. Having regard to the nature (i) of the document by which such obligation is created; (ii) the composition of the body .(NJAC) upon which the obligation is cast; and (iii) the nature of the assignment, the argument is required to be rejected. NJAC is a constitutional authority created to perform G an important constitutional function. Its charter is the Constitution itself. Notwithstanding, the prolixity of our Constitution, a constitution is not expected or required to spell out every minute detail regarding administration of the State. In the context of the American Constitution, it is said that the H SUPREME COURT ADVOCATES-ON-RECORD 615 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] Constitution is an intentionally incomplete, often deliberately A indeterminate structure for the participatory evolution of political ideals and governmental practices. Constitutions enumerate structural arrangements of Government and specify the outer limits of powers of each organ of the State. Within such limits, how the various organs of the State ought to discharge their B allocated functions is a matter of detail, either to be provided by law or convention. All written democratic Constitutions are full of abstract moral commands! 111. Three members of the highest judicial body of this c country, a member of the Union Cabinet and two eminent persons chosen by a Committee consisting of three exalted office holders under the Constitution constitute the NJAC. To suggest that the NJAC requires detailed guidelines expressly spelt out in the text of the Constitution amounts to judicially D mandating inflexible standards for constitutional drafting. The task of expounding a Constitution is crucially different from that of construing a statute. 112. Provisions of the Constitution are not to be interpreted in a· broad and liberal way. They are not to be E construed in the manner in which a piece of subordinate legislation or, for that matter, even a statute is required to be interpreted. This Court in S.R. Bommai had an occasion to consider this question. Dealing with the authority of the F President under Article 356 of the Constitution of India and whether the exercise of such authority by the President is amenable to judicial review on the parameters enunciated by this Court in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, rejected the submission. G "35. . ........... The test laid down by this Court in Barium Chemicals Ltd. v. Company Law Board and subsequent decisions for adjudging the validity H 616 A B c D E F G H SUPREME COURT REPORTS (2015] 13 S.C.R. of administrative action can have no application for testing the satisfaction of the President under Article 356. It must be remembered that the power conferred by Article 356 is of an extraordinary nature to be exercised in grave emergencies and, therefore, the exercise of such power cannot be equated to the power exercised in administrative law field and cannot, therefore, be tested by the same yardstick ....... . 255. .. .. . ... The exercise of the power under Article 356 is a constitutional exercise of the power. The normal subjective satisfaction of an administrative decision on objective basis applied by the courts to administrative decisions by subordinate officers or quasi-judicial or subordinate legislation does not apply to the decision of the President under Article 356. 373. . ....... So far as the approach adopted by this Court in Barium Chemical& is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitutional power under Article 356. Having regard to the fact that this is a high constitutional power exercised by the highest . constitutional functionary of the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety." 113. Such a test is relevant only for bodies created by statutes and subordinate legislation. The functioning of any constitutional body is only disciplined by appropriate SUPREME COURT ADVOCATES-ON-RECORD 617 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] legislation. Constitution does not lay down any guidelines for A the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one. Even B prior to the AMENDMENT, the constitutional text had no express guidelines for the President and the CJI to follow. It is however nobody's case that the pre-AMENDMENT selection scenario conferred any uncanalised discretion and therefore resulted in some undesirable judicial appointments. If in C practice, occasionally personal preferences outweighed concerns of public interest resulting in undesirable appointments, it is not because of constitutional silences in this area but because of shortcomings in the ethical standards D of the participants in the selection process. After the AMENDMENT, the obligation is unvaried. The qnly change is in the composition of the players to whom the task is entrusted and the mode of performing the task is altered with a view to achieve greater degree of transparency in the selection E process. To contend that the AMENDMENT is destructive of the basic structure since it does not lay down any guidelines tantamounts to holding that the design of the Constitution as originally enacted is defective! 114: The next submission which is required to be dealt F is that Section 6(6) of the ACT which stipulates that if any two members of the NJAC do not agree with the recommendation proposed by the NJAC, the NJAC shall not recommend such· candidate. In the opinion of the petitioners, it is a provision which confers veto power on two members of the NJAC to G scuttle proposa!s. It is submitted that though the provision is facially innocuous, in practice, this would result in giving the Executive a power of veto to reject the proposals made by the H 618 SUPREME COURT REPORTS [2015] 13S.C.R. A three judicial members of the NJAC. Such a provision is violative of the basic structure of the Constitution. It is further argued that though the provision is not part of the AMENDMENT, since the AMENDMENT and the ACT are made simultaneously and the ACT being complementary to B the AMENDMENT, the ACT must be understood to be a part of the design of the AMENDMENT and, therefore, Section 6(6) is required to be struck down on the ground it is violative of the basic structure of the Constitution. c 115. The respondents submitted that Section 6(6) of the ACT only prescribes a special majority for sanctifying the recommendations of NJAC. Prescription of special majorities in law is a known phenomenon. The Constitution itself prescribes special majorities in certain cases. For example, D Article 368(2) prescribes a special majority for amending the Constitution. Similarly, Article 124(4) prescribes a special majority for the impeachment of judges of the CONSTITUTIONAL COURTS. It is argued that the petitioners presumption that only Government could take advantage of E the prescription under Section 6(6) is totally baseless. In a given case it may happen that two judicial members of the NJAC can turn down the proposal of the NJAC. Learned Attorney General also submitted that such a prescription of a special majority is also a part of the regime created under F Second Judges case and, therefore, there is nothing constitutionally objectionable in such a prescription. 116. The question whether the content of Section 6(6) confers a power of veto or prescribes a special majority is G only of semantic relevance. Whatever name we call it, the result is the same. The two members of the NJAC can override the opinion of the other four and stall the recommendation. I do not find anything inherently illegal about such a prescription. For the purpose of the present case, I do not even want to H - SUPREME COURT ADVOCATES-ON-RECORD 619 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] embark upon an enquiry whether the constitutional fascination A for the basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp. For my part, I would like to examine the question in greater detail before answering the question. There are conflicting views of this Court on this proposition. 89 In my opinion, such an enquiry is not required in B this case in view of the majority decision that the AMENDMENT is unsustainable. Some of the learned counsel for the petitioners placed reliance on S.R. Bommai case as a justification for the invocation of the doctri~e of basic structure. 117. Only to indicate but not determine conclusively the c scope of the enquiry to answer the submission of the petitioners, I examine S.R. Bommai case. The question before this Court was whether the action of the President in invoking the powers under Article 356 was constitutionally D tenable? In other words, whether the material on which the President acted was constitutionally relevant for the invocation of powers under Article 356. The submission of the petitioners before this Court was that the exercise of powers under Article 356 was inconsistent with two features of the Constitution, i.e. E the democracy and federalism, therefore, destructive of the basic structure, as the Presidential action under Article 356 resulted in the super session of the democratically elected State Governments by the Union Government. 118. Repelling the contention, this Court held that secularism is also one of the basic features of the Constitutioa. The conscious inaction of the various State Governments and consequential failure to prevent certain activities which in F the opinion of the petitioners (endorsed by this court by the G 89 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." H 620 SUPREME COURT REPORTS [2015] 13S.C.R. A judgment) would ultimately result in the destruction of the secular fabric of the Constitution has certainly a relevant consideration for the exercise of extraordinary powers vested in the President under Article 356. Because Article 356 obligates the President to resort to the action contemplated B thereunder only if the President is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Failure of the State Government to prevent activities which are bound to destroy the communal harmony between people following C different religions is certainly inconsistent with the constitutional obligation of the State to upheld the Constitution of which secularism is a basic feature. S.R. Bommai case is no authority for the proposition that the validity of a legislation is amenable 0 to judicial review on the ground of the basic structure doctrine. 119. The fiasco created in Dinakaran case (supra) and Shanti Bhushan case (supra) would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process E pointed out by Ruma Pal, J. The abovementioned two are not the only cases where the system failed. It is a matter of public record that in the last 20 years, after the advent of the collegium system, number of recommendations made by the collegia of High Courts came to be rejected by the collegium of the F Supreme Court. There are also cases where the collegium of this Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court collegium giving scope for a great deal of speculation as to the factors which must have weighed with the collegium to G make such a quick volteface. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this H - SUPREME COURT ADVOCATES-ON-RECORD 621 ASSOCIATION v. U.0.1. Court who are not lucky enough to become the Chief Justice A of India. S.uch a state of affairs does not either enhance the credibility of the institution or good for the people of this country. 120. For all the abovementioned reasons, I would upheld the AMENDMENT. However, in view of the majority decision, 8 I do not see any useful purpose in examining the constitutionality of the ACT. 121. Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various C CONSTITUTIONAL COURTS of this country is clearly not a certificate of efficiency. The frequency with which the residuary jurisdiction of this Court under Article 136 is invoked seeking correction of errors committed by the High Courts, some of which are trivicil and some profound coupled with bewildering D number of conflicting decisions rendered by the various benches of this Court only indicate that a comprehensive reform of the system is overdue. Selection process of the Judges to the CONSTITUTIONAL COURTS is only one of the aspect of such reforms. An attempt in that direction, E unfortunately, failed to secure the approval of this Court leaving · this Court with the sole responsibility and exclusive accountability of the efficiency of the legal system. I only part with this case recollecting the words of Macaulay - "reform F that you may preserve" 90• Future alone can tell whether I am rightly reminded of those words or not. ORDER MADAN B. LOKUR, J. 1. I have had the benefit of going through the draft order prepared by my learned brothers Justice G Khehar, Justice Chelameswar and Justice Kurian Joseph.· 90 Thomas Babington Macaulay's address on 2"' March 1831 in the House of Commons on Parliamentary Reforms H 622 SUPREME COURT REPORTS [2015] 13S.C.R. A While endorsing the view expressed by my learned brothers Justice Khehar and Justice Chelameswar, I would like to add a few words on the procedural aspect of dealing with an application for recusal. 2. Justice Khehar has mentioned in Paragraph 17 of the B draft order as follows:- "The decision to remain as a member of the reconstituted Bench was mine, and mine alone." 3. In my respectful opinion, when an application is made C for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision. D 4. In a .detailed order pronounced in Court on its own motion v. State & Others1 reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America 2 , wherein it was held that a complaint as to the E qualification of a justice of the Supreme Court to take part in the decision of a cause cannot properly be addressed to the Court as a whole and it is the responsibility of each justice to determine for himself the propriety of withdrawing from a case. F 5. This view was adverted to by Justice Rehnquist in Hanrahan v. Hampton 3 in the following words:- "Plaintiffs-respondents and their counsel in these cases have moved that I be recused from the proceedings in this case for the reasons stated in their 14-page motion G and their five appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state- H 1 MANU/DE/9073/2007 2 325 us 897 (1945) J 446 us 1301 (1980) SUPREME COURT ADVOCATES-ON-RECORD 623 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] defendant petitioners in the action. Since generally the A Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall B treat the motion as addressed to me individually. I have considered the motion, the Appendices, the response of the state defendants, 28 U.S.C. 455 (1976 ed. And Supp. II), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly c denied." 6. The issue of recusal may be looked at slightly differently apart from the legal nuance. What would happen if, in a Bench of five judges, an application is moved for the recusal of Judge A and after hearing the application Judge A decides D to recuse from the case but the' other four judges disagree and express the opinion that there is no justifiable reason for Judge A to recuse from the hearing? Can Judge A be compelled to hear the case even though he/she is desirous of recusing from the hearing? It is to get over such a difficult E \ situation that the application for recusal is actually to an individual judge and not the Bench as a whole. 7. As far as the view expressed by Justice Kurian Joseph that reasons should be given while deciding an application for F recusal, I would prefer not to join that decision. In the first place, giving or not giving reasons was not an issue before us. That reasons are presently being given is a different matter altogether. Secondly, the giving of reasons is fraught with some difficulties. For example, i.t is possible that in a given case, a G learned judge of the High Cou~ accepts an application for his/ her recusal from a case and one of the parties challenges that order in this Court. Upon hearing the parties, this Court comes to the conclusion that the reasons given by the learned judge H 624 SUPREME COURT REPORTS [2015] 13 S.C.R. A were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hearthe case even though he/she genuinely believes that he/she should not hear the case? 8. The issue of recusal from hearing a case is not as B simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid C embarrassment to other judges on the Bench. JUDGMENT MADAN B. LOKUR, J. 1. The questions for consideration are: Firstly, whether the Constitution (Ninety-ninth D Amendment) Act, 2014 which substitutes and replaces the extant procedure for the appointm.ent of judges of the Supreme Court and the High Courts with a radically different procedure impinges on the independence of the judiciary and violates the basic structure of the Constitution; Secondly, whether the E National Judicial Appointments Commission Act, 2014 is a constitutionally valid legislation. 2. In my opinion, the Constitution (Ninety-ninth Amendment) Act, 2014 (for short the 991h Constitution F Amendment Act) alters the basic structure of the Constitution by introducing substantive changes in the appointment of judges to the Supreme Court and the High Courts and rewriting Article 124(2) and Article 217(1) of the Constitution, thereby seriously compromising the independence of the judiciary. G Consequently, the ggth Constitution Amendment Act is unconstitutional. Since the 991h Constitution Amendment Act is unconstitutional, the National Judicial Appointments Commission Act, 2014 (for short the NJACAct) which is the H SUPREME COURT ADVOCATES-ON-RECORD 625 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] child of the 991h Constitution Amendment Act cannot A independently survive on the statute books. Even otherwise, it violates Article 14 of the Constitution by enabling substantive arbitrariness in the appointment of judges to the Supreme Court and the High Courts. 3. Having had the benefit of reading the draft judgment B of Justice Khehar, Justice Kurian Joseph and Justice Adarsh Kumar Goel, I am in respectful agreement with the conclusions arrived at with regard to the constitutional validity of the 991h Constitution Amendment Act but prefer to supplement them c with additional reasons. I am in respectful disagreement with the view of Justice Chelameswar. I believe all the submissions made by various learned counsel led by Mr. Fali S. Nariman on .behalf of the petitioners and by Mr. Mukul Rohatgi the learned Attorney-General on behalf of the respondents have D been noted and dealt with by Justice Khehar in his draft judgment and in respect of some of them, I have nothing to add to what has already been said. Historical background .E 4. George Santayana, philosopher, essayist, poet and novelist is believed to have said something to the effect that: 'Those who do not remember their past are condemned to repeat their mistakes.' Keeping this in mind, it is essential to appreciate the evolution of the process for the appointment of F judges in the Indian judiciary, the various alternatives discussed and debated and then to consider and analyze the solution given by the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. This is important for another reason - some of the 'mistakes' G made before Constituent Assembly accepted the Constitution of India, have been revived and enacted, even though the Constituent Assembly debated and rejected them. H 626 SUPREME COURT REPORTS [2015] 13 S.C.R. A 5. Section 101 of the Government of India Act, 1919 provided for the appointment of the Chief Justice and judges of the High Court and Section 102 provided for their tenure. It was provided that the appointment shall be made by His Majesty and the judge shall hold office 'during His Majesty's B pleasure.' Since the appointment process and the tenure of a judge depended upon the Crown's pleasure, perhaps the issue of the independence of the judiciary was not the subject of discussion in India. In any event, nothing was pointed out in this regard one way or the other during the submissions made C by learned counsel. 6. The Government of India Act, 1935 partially changed the procedure for the appointment of judges to the High Courts and introduced a procedure for the appointment of judges to o the Federal Court constituted by the said Act. Section 200 and 201 dealt with the appointment of judges of the Federal Court and while the Crown continued to make the appointments (apparently without any formal consultation process); their tenure was fixed at the age of 65 years. Removal of a judge E was possible only on the ground of misbehavior or of infirmity of mind or body. Section 201 provided for the salary, allowances, leave and pension of a judge and this could not be varied to his/her disadvantage after appointment. Section 220 and 221 related to the appointment of a judge of the High F Court and the provisions thereof were more or less similar to the appointment of a judge of the Federal Court. 7. The Government of India Act, 1935 gave a semblance of an independent judiciary in that it provided some basic G requirements of independence such as eligibility for appointment, security of tenure including the removal process, assurance of salary, allowances and pension etc. Again, nothing specific was shown to us, one way or the other, which could throw light on the contemporaneous practice regarding H SUPREME COURT ADVOCATES-ON-RECORD 627 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] the appointment process or the independence of the judiciary. A A general practice on the appointment of judges was, however, subsisting and this has been adverted to by the Supreme Court of Pakistan in Al-Jehad Trust v. Federation of Pakistan. 1 It was observed that ever since 1911 when the Indian High Courts Act was enacted and certainly from 1915/1919 onwards when B the Government of India Act was enacted, the recommendation of the Chief Justice for the appointment of a judge was accepted even though the appointment of a judge was a matter of the pleasure of the Crown. ltwas said: "Act of appointment of a Chief Justice or a Judge in the superior Court is an executive act. No doubt this power is vested in the Executive under the relevantArticles of the Constitution, butthe question is, as to how this power is to be exercised. Conventions can be pressed into service while construing a provision of the Constitution and for channelising and regulating the exercise of power under the Constitution: whereas undertt}e Islamic Jurisprudence, a convention which is termed as Urf has a binding force on the basis of various Islamic sources, it has been a consistent practice which has acquired the status of convention during pre partition days of India as well as post partition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases. The practice of consultation of the Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts Act [1911] as well as under the 1 PLD 1996 SC 324 (Five Judges Bench) c D E F G H 628 A B SUPREME COURT REPORTS [2015] 13S.C.R. Government of India Act 1915, though the appointment of Judges of superior Courts in India was a matter of pleasure vested in the Crown. The recommendations of the Chief Justices even in those days were accepted as a matter of course." Sapru Committee 8. The issue of the appointment of judges (for Independent India) first came up for discussion (as itappears) before the Sapru Committee. A Report prepared by this C Committee in 1945 dealt with the Legislature, the Executive and the Judiciary in Chapter V thereof. The relevant paragraphs pertaining to the appointment of judges are paragraphs 259, 261 and 268. 2 The Committee was of the opinion that the independence of the judiciary is of 'supreme importance for D the satisfactory working of the Constitution and nothing can be more detrimental to the well-being of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province.' It was dearth at it desired E to secure the 'absolute independence' of the High Court and to put the judges above party politics or influences. The Committee proposed a limited consultative system of appointment of judges completely leaving out the Legislature F and the Executive. The Committee proposed consultation only between the Head of the State and the Chief Justice of India for appointments to the Supreme Court and for the High Courts, in addition, the Head of the Unit (Province) and the Chief Justice of the High Court. The relevant paragraphs of the Report read G as follows: H "259. In our Recommendation No.13 we first recommend that there shall be a Supreme Court 'https://archive.org/stream/saprucommittee035520mbp/saprucommittee 035520mbp djvu txt SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] for the Union and a High Court in each of the units. Then in the second clause we recommend that the strength of judges in each of these Courts at the inception of the Union as well as the salaries to be paid to them shall be fixed in the Constitution Act and no modification in either shall be made except on the recommendation of the High Court, the Government concerned and the Supreme Court and with the sanction of the Head of the State, provided, however, that the salary of no judge shall be varied to his disadvantage during his term of office. In sub-clause (3) we recommend:- "(a) The Chief Justice of India shall be appointed by the Head of the State and the other judges of the Supreme Court shall be appointed by the Head of the State in consultation with the Chief Justice of India." "(b) The Chief Justice of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit and the Chief Justice of India." "(c) Other judges of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit, the Chief Justice of the High Court concerned and the ChiefJustice of India." 261. Our main object in making these recommendations is to secure the absolute independence of the High Court and to put them above party politics or influences. Without some such safeguards, it is not impossible that a Provincial Government may under political pressure 629 A B c D E F G H 630 A 8 c D E F G H SUPREME COURT REPORTS [2015) 13S.C.R. affect prejudicially the strength of the High Court within its jurisdiction or the salary of its Judges. If it is urged that the High Court and the Government concerned will be more or less interested parties in the matter, the intervention of the Supreme Court and of the Head of the State would rule out all possibility of the exercise of political or party influences. The imposition of these conditions, may, on a superficial view, seem to be inconsistent with the theoretical autonomy of the Provinces, but, in our opinion, the independence of the High Court and of the judiciary generally is of supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the well-being of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province. 268. We now come to the method of appointment of Judges. Under the existing law Judges of High Courts and of the Federal Court are appointed by the Crown. We have recommended that the Chief Justice of India should be appointed by the Head of the State. In this connection we would refer to our discussion of the phrase 'Head of the State' in Chapter VI. Similarly we have recommended that the other Judges of the Supreme Court shall be appointed by the Head of the State in consultation with the Chief Justice of India. The Chief Justice of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit and the Chief Justice of India, and the other judges of a SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] High Court shall be appointed by the Head of the State in consultation with the Head of the Unit, the Chief Justice of the High Court concerned and the Chief Justice of India. We have deliberately placed the appointment of these Judges, including Judges of the Provincial High Courts outside the purview of party politics, and we make the same observations as above in justification of this provision notwithstanding its seeming interference with the theoretical autonomy of the Provinces." 9. As mentioned, 'Head of State' was discussed in Chapter VI of the Report and in so far as the judiciary is concerned, the Head of State was expected to act 'on his own' 631 A B c as the occupant of the office of Head of State and not on the advice of the Federal Ministry. More specifically, the Head of D State was to act on his/her own in the matter of appointment and removal of judges. This is what was said in the Report: ''The Union will be a democratic federal State and the Head of the State who will replace both the Governor-General and the Crown Representative and might be given a suitable indigenous designation, if necessary should exercise such functions as are given to him only on the advice of his Federal Ministry, barring a few very exceptional cases, to be specifically mentioned in the Constitution Act, where discretion is given to him to act on his own or on advice other than that of the Federal Ministry (1) for avoiding political or communal graft, or (2) for taking the initiative in the national interest, especially in exceptional and fast moving situations such as exist at the present day. Under exception (1) will fall the suggestions we have made under paragraph 13 of our recommendations E. F G H 632 SUPREME COURT REPORTS [2015] 13 S.C.R. A as regard the alteration of the strength of High Courts and the appointment and removal of judges of the Supreme Court and the High Courts."3 Ad hoc Committee on the Supreme Court B 10. After the Constituent Assembly was formed, an Ad hoc Committee on the Supreme Court was set up which presented its Report of 21st May, 194 7 to the Constituent Assembly. Paragraph 14 of the Report is of relevance to the issue of appointment of judges of the Supreme Court. It C accepted, in principle, the qualification for the appointment of judges to the Supreme Court, as mentioned in the Government of India Act, 1935 but found it inexpedient 'to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union.' It made two D suggestions in the appointment procedure, both of which necessitated consultation between the President and the Chief Justice of India and the opinion of a panel of 11 (eleven) persons comprising of, inter alia, some Chief Justices of the High Courts, some members of both the Houses of the Central .. E Legislature and some law officers of the Union. It was proposed that the executive be kept out of the appointment process. The said paragraph reads as follows: "14. The qualifications of the judges of the Supreme F Court may be laid down on terms very similar to those in the Act of 1935 as regards the judges of the Federal Court, the possibility being borne in mind (as in the Act of 1935) that judges of the superior courts even from the States which may join G the Union may be found fit to occupy a seat in the Supreme Court. We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion H ' Paragraph 288 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] of the President of the Union. We recommend that either of the following methods may be adopted. One method is that the President should in consultation with the Chief Justice ofthe Supreme Court (so far, as the appointment of puisne judges is concerned) nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the law officers of the Union. The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice except of course that in this case there will be no· consultation with the Chief Justice. To ensure that the panel will be both independent [and] command confidence the panel should not be an ad hoc body but must be one appointed for a term of years." 4 11. There was clearly a divergence of opinion between 633 A B c D E the Sapru Committee and the Ad hoc Committee on the F consultation process for the appointment of judges. The Sapru Committee felt that the appointment of judges should be left to the Head of State acting on his/her own while the Ad hoc Committee did not approve of the appointment process being left to the 'unfettered discretion of the President' but suggested G it to be broad-based involving a panel. · 12. However, what is apparent from both the Report of 4 http-([164 100 47 132/LssNew/cons!j!ueotlyol4p6 html H 634 SUPREME COURT REPORTS [2015] 13S.C.R. A the Sapru Committee and the Report of the Ad hoc Committee · is that tfle executive was not to be involved at all in the process of appointment of judges. This is of considerable significance. 5 Memorandum on the Union Constitution and Draft 8 Clauses 13. On 3Qth May, 194 7 the Constitutional Advisor to the ConstituentAssembly, Sir B.N. Rau submitted a Memorandum on the Union Constitution and Draft Clauses. The Memorandum provided in Chapter VI (The Union Judicature) C that there shall be a Supreme Court 'with powers and jurisdiction as recommended by the ad hoc Committee on the Union Judiciary. '6 In the draft clauses of the Union Constitution appended to the Memorandum, it was provided that every judge of the Supreme Court shall be appointed by the President with D the approval of not less than 2f3rd of the members of the Council . of State.7 In this regard, the Law Commission of India notes in its 8Qth Report as follows: "The Constitutional Adviser, in his memorandum E dated May 3Qth, 1947 suggested that the appointment of Judges should be made by the President with the approval of at least two-thirds of the Council of State. The Council of State, · according to him, was to be a body in the nature of F a Privy Council for advising the President on certain matters on which decisions were required on independent non-party lines. The Council of State was to include the Chief Justice of India among its members and its composition was to be such as G to secure freedom from party bias. Such a Council 5 Lay persons were also not included in the consultation process. • B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 486 7 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, H Volume II page 519 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] of State, it was suggested by the Constitutional Adviser, would be a satisfactory substitute for the panel recommended by the Special Committee. The Union Constitution Committee did not accept the proposal of the Constitutional Adviser for setting up of a Council of State, and suggested that the procedure for the appointment of judges should be that the President should consult the Chief Justice and such other judges of the Supreme Court as 635 • A B might be necessary."8 c 14. It appears that by this time, the independence of the judiciary was taken for granted, the only question being the procedure for the appointment of judges -whether it should be the exclusive responsibility of the President or it should be broad-based involving a panel or a Council of State. In any D event, the exclusion of the executive in the appointment process appears to have been taken as accepted. Union Constitution Committee 15. The Union Constitution Committee which presented E a Report to the Constituent Assembly on 41h July, 1947 did not adopt the proposal for setting up a Council of State. Consequently, an alternative procedure for the appointment of a judge of the Supreme Court was suggested, namely, for the appointment by consultation between the F President and the Chief Justice of the Supreme Court and such other judges of the Supreme Court and judges of the High Court as may be necessary. In other words, the limited consultative process as originally envisaged by the Sapru G Committee (between the President and the Chief Justice of India) was accepted though with modifications. Chapter IV paragraph 18 of the Report concerns itself with the • Paragraphs 4.4 and 4.5 H - 636 SUPREME COURT REPORTS [2015) 138.C.R. A appointment of judges of the Supreme Court and this reads B c D E F as follows: "18. Supreme Court.-There shall be a Supreme Court with the constitution, powers and jurisdiction recommended by the ad hoc Committee on the Union Judiciary, except that a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also judges of the High Courts as may be necessary for the purpose. [NOTE - The ad hoc Committee on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Federation. They have suggested two alternatives, both of which involve the setting up. of a special panel of eleven members. According to one alternative, the President, in consultation with the Chief Justice, is to nominate a person for appointment as puisne judge and the nomination has to be confirmed by at least seven members of the panel. According to the other alternative, the panel should recommend three names, out of which the President, in consultation with the Chief Justice, is to select one for the appointment. The provision suggested in the above clause follows the decision of the Union Constitution Committee.]"9 G Again, the executive had no role to play in the H appointment of judges, specifically of the Supreme Court. 9 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 583 SUPREME COURT ADVOCATES-ON-RECORD 637 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Provincial Constitution Committee A 16. With regard to the High Courts, a Report of 27111 June, 1947 was submitted to the Constituent Assembly by the Provincial Constitution Committee. Part II thereof pertained to the Provincial Judiciary and the recommendations made for 8 the appointment of judges of the High Court incorporated the provisions of the Government of India Act, 1935 and the recommendations made by the Union Constitution Committee. These read as follows: "The Provincial Judiciary c 1. The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis; but judges should be appointed by the President of the Federation in consultation with the Chief D Justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the Chief Justice of the High Court himself is to be appointed). 2. Jhe judges of the High Court shall receive such E emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule ........... . 3. The emoluments and allowances of the judges shall F not be diminished during their term of office." 10 The above discussion indicates that the executive was to be kept out of the process of appointing judges to the Supreme Court and the High Courts. This is clear from the views of: ( 1) The Sapru Committee; (2) The Ad hoc Committee G on the Supreme Court; (3) The Union Constitution Committee, 10 B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents, Volume II page 662 H 638 SUPREME COURT REPORTS [2015) 13 S.C.R. A and (4) The Provincial Constitution Committee. This will have some bearing when the composition of the National Judicial Appointments Commission is examined. 17. In this background pertaining to the judiciary, the first 8 draft of the Constitution was placed before the Drafting Committee in October, 194 7. This was followed by another (revised) draft submitted to the President of the Constituent Assembly on 21st February, 1948. There was no significant change between these two drafts as far the appointment c process for the Federal Judicature (or the High Courts in the Provinces/States) is concerned. But, it is important to note that the Drafting Committee did not throw overboard the view of any of the committees mentioned above, that is, to keep the executive out of the process of appointment of judges. D Conference of Chief Justices 18. Wide publicity was given to the Draft Constitution to enable interested persons to express their views through comments and suggestions. The views expressed by the E Conference of Chief Justices (the Chief Justice of the Federal Court and Chief Justices of the High Courts), the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas are important since they explain the interplay between the Executive and the F Judiciary in the matter of appointment of judges. 19. These views also make it clear that almost immediately after Independence (or thereabouts) the executive began to interfere in the appointment of judges of the High Courts. This interference by the executive (or in the present G day language, the political executive) is the genesis of the problem that we are grappling with even today. H 20. The Conference of Chief Justices was held on 26th and 27th March, 1948 to consider the proposals in the SUPREME COURT ADVOCATES-ON-RECORD 639 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Draft Constitution concerning the judiciary. A Memorandum A representing the views of the Federal Court and of the Chief Justices representing all the Provincial High Courts of the Union of India was prepared and submitted by the Conference. 11 This Memorandum is of immense importance in understanding the prevailing appointment process. B 21. Very briefly, in what may be described as the 'preamble' to the Memorandum, a few salient points were assumed and noticed. It was assumed that the independence - and integrity of the judiciary is of the 'highest importance' not c only to the judges but to the citizens seeki~g resort from a court of law against the high handed and illegal exercise of power . by the executive. It was noticed that there is a tendency to whittle down the powers, rights and authority of the judiciary which, if allowed to continue, would be 'most unfortunate'. D Therefore, there was a need to col.interact this tendency which was likely to grow witl;J,_greater power being placed in the hands of the political parties."lt was said: · "We have assumed that it is recognized on all hands that the independence and integrity of the judiciary in a E democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the F high-handed exercise of power by the executive. Thanks to the system of administration of justice established by the British in this country, the judiciary until now has, in the main, played and independent role in protecting the rights of the individual citizen against encroachment and G invasion by the executive power. Unfortunately, however, a tendency has, of late, been noticeable to detract from 11 The text of the Memorandum is available in B. Shiva Rao: ;The Framing of India's Constitution' - Select Documents, Volume IV page 193 H 640 A B c D SUPREME COURT REPORTS [2015] 13 S.C.R.. the status and dignity of the judiciary and to whittle down their powers, rights an authority which if unchecked would be most unfortunate. While we recognize that the Draft Constitution proposes to liberalize in some respects the existing safeguards against executive interference and to enlarge their present powers, it is felt that further provision should be made in the same direction in order effectively to counteract the aforesaid tendency which is bound to become more pronounced as more power passes into the hands of political parties who will control and dominate the governmental machinery in the years to come. In making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent, incorruptible and efficient judiciary has been steadily kept in view." The Memorandum specifically pointed out (sadly) that after 15th August, 1947 the appointment of judges to the High Courts, on merit, was not always assured in view of the practice followed (by some States). Also, recommendations by the E Chief Justice of the High Court were not always forwarded to the Central Government, implying thereby that some other recommendations were forwarded. In this regard it was said: F G H "Discussions at the conference revealed that the procedure followed after 15th August 1947 does not in practice always ensure appointment being made purely on merit without political, communal and party considerations being imported into the matter. Though it is acknowledged readily enough in principle that such considerations should not influence the appointment, this is not always kept in view in working the procedure in practice. The Chief Justice sends his recommendation to the Premier who consults his Home Minister. The recommendation of the Premier is then forwarded to the / SUPREME COURT ADVOCATES-ON-RECORD 641 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Home Ministry at the Centre without even sending the A recommendation of the Chief Justice along with it, the prescribed procedure being apparently understood as not rendering it obligatory for the Premier to do so." 22. Consequently, a modified procedure for making 8 recommendations was unanimously recommended by the Conference which would ensure that the recommendation of the Chief Justice reaches the President and that the appointment be made with the concurrence of the Chief Justice of India to avoid any political pressures. It was said: c "The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor the President should make the appointment with the concurrence of the Chief Justice of India. This procedure would obviate the need for the Chief Justice D of the High Court discussing the matter with the Premier and his Home Minister and "justifying" his recommendations before them. It would also ensure the recommendation .of the Chief Justice of the High Court being always placed before the appointing authority, E namely, the President. The necessity for obtaining the "concurrence" of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear in the matter." F 23. Significantly, the Memorandum tacitly and implicitly acknowledged that apart from a recommendation for the appointment of a judge of a High Court originating from the Chief Justice of the High Court, recommendations were being made by or at the instance of the political executive. Whether G such a procedure was right or wrong was not considered but it was suggested that in the event of such a recommendation being maoe, the concurrence of the Chief Justice of India should be obtained before the appointment is made. The H 642 SUPREME COURT REPORTS [2015] 13S.C.R. A Memorandum proposed that Article 193(1) of the Draft Constitution concerning the appointment of a judge of a High Court should read as under: B "Every judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India ... " ' . The Memorandum acknowledged that a C recommendation for the appointment of a judge of the High Court could also be made by the President (in an individual capacity). In the event of such a proposal (by the President), there was no likelihood of the Chief Justice of India not accepting it and, therefore, the concurrence of the Chief D Justice of India was not required to be incorporated in the E F G H Constitution. It was, therefore, noted: "We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President making a different proposal, and no express provision need, it seems to us, be made in that behalf. The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court, and article 103(2) may also be suitably modified ..... " SUPREME COURT ADVOCATES-ON-RECORD 643 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 24. The significance of this Memorandum cannot be A overemphasized and it can be summarized as follows: (1) The independence and integrity of the judiciary was of the highest importance. (2) A tendency had developed in the executive to whittle down the power and authority of the judiciary. (3) It was noted that recommendations for the appointment of a judge of B a High Court originate from the Chief Justice of the High Court. Occasionally, such recommendations are suppressed by the executive at the provincial level. It was proposed that recommendations made by the Chief Justice ought to be forwarded directly to the President for being processed so C that the political executive at the provincial level cannot suppress it. (4) It was acknowledged that the political executive at the provincial level also makes recommendations (though not always on merits) directly to the Central Government, without D the knowledge of the Chief Justice of the High Court. Such recommendations ought to be accepted only with the concurrence of the Chief Justice of India, and this should be taken care of in the Draft Constitution. (5) It was acknowledged that a recommendation for the appointment of a judge of a E High Court (or the Supreme Court) could be made by the President (personally - 'Both are officers of the highest responsibility .... .'). This would normally be accepted by the Chief Justice of India and therefore no provision for the concurrence of the Chief Justice of India was required to be F made in this regard in the Draft Constitution. However, if the Chief Justice of India were to refuse to accept the recommendation, the situation could be met by the President making a different proposal. This is because, it was noted, that 'a convention now exists that such appointments should G be made after referring the matter to the Chief Justice of India and obtaining his concurrence.' H 644 SUPREME COURT REPORTS [2015] 13 S.C.R. A Amendments to Article 61 and Article 62 of the Draft Constitution 25. The Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and 8 Excluded Areas adverted to and considered Article 61 and Article 62 (amongst others) of the Draft Constitution. Article 61 and Article 62 of the Draft Constitution pertain to the Council of Ministers to aid and advice the President and other provisions as to Ministers. In this regard, Shiva Rao mentions c in his excellent effort 'The Framing of India's Constitution -A Study' as follows: · D E F G H "There was considerable discussion in the Minorities Sub-Committee and in the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas on the need for the inclusion of minority representatives in the Union and State Cabinets ..... They considered that it would be sufficient if, following the precedent furnished by the Government of India Act of 1935, an Instrument of Instructions was drawn up, to be included as a schedule to the Constitution, enjoining the Governors and the President as far as practicable to include members of the minority communities in their Ministries. In the Draft Constitution of February 1948, however, an Instrument of Instructions for this purpose was drawn . up only for Governors but not for the President. Possibly in order to rectify this omission, the Drafting Committee decided, on further consideration of the articles relating to the Council of Ministers, that an Instrument of Instructions for the President would also be necessary" 12 26.Apparently, pursuant to this, the Drafting Committee gave a notice in October 1948 of an amendment to Article 62 proposing to add the following clause: 12 Page 373-374 SUPREME COURT ADVOCATES-ON-RECORD 645 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] "In the choice of his Ministers and the exercise of his A other functions under this Constitution, the President shall be generally guided by the Instructions set out in Schedule Ill-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 B Instructions." 27. Schedule Ill-A incorporated the Instrument of tnstructions to the President and this is important and it reads as follows: c New Schedule 111-A [Article 62(5a)] INSTRUCTIONS TO THE PRESIDENT 1. In these instructions, unless the context otherwise D requires, the term "President" shall include every person for the time being discharging the functions, of, or acting as, the President according to the provisions of this Constitution. E 2. xxx 3. xxx 4. (1) The President shall make rules for the constitution of an Advisory Board consisting of not less F than fifteen members of.the Houses of Parliament to be elected by both Houses in accordance with the system of proportional representation by means of the single transferable vote for the purpose of advising the President in the matter of making certain appointments G under this Constitution and shall take all necessary steps for the due constitution of such Board as soon as may be after the commencement of this Constitution. H 646 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. (2) Such rules shall provide that the Leader of the Opposition, if any, in either House of Parliament shall, if he is not elected to the Advisory Board, be nominated to the Board by the President. (3) Such rules shall also define the terms of office of the members of the Advisory Board and its procedure and may contain such ancillary provisions as the President may consider necessary. 5. (1) In making any appointment of- (a) the Chief Justice of India or any other judge of the Supreme Court; (b) the Chief Justice or any other judge of a High Court; (c) an Ambassador in a foreign State; (d) the Auditor-General of India; (e) the Chairman or any other member of the Union Public Service Commission; (f) any member of the Commission to superintend, direct and control all elections to Parliament and elections to the offices of President and Vice-President, The President shall consult the Advisory Board constituted under paragraph 4. (2) The President shall also consult the Advisory Board so constituted in making appointment by virtue of the powers conferred on him by this Constitution to any other office under the Government of India or the Government of a State other than the office of Governor of a State, if Parliament by resolutions passed by both Houses recommend to the President that the Advisory Board shall be consulted in making appointment to such office. 6. (1) In making appointment of judges of the Supreme SUPREME COURT ADVOCATES-ON-RECORD 647 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Court and of the High Courts, the President shall before A obtaining the advice of the Advisory Board shall follow the following procedure: (a) In the case of appointment of the Chief Justice of India, he shall consult the judges of the Supreme Court and the B Chief Justices of the High Courts within the territory of 1.ndia except the States for Jhe time being specified in Part Ill of the First Schedule. (b) In the case of appointment of a judge of the Supreme Court other than the Chief Justice of India, he shall consult C the Chief Justice of India and the other judges of the Supreme Court and also the Chief Justices of the High Courts within the territory of India except the States for the time being specified in Part Ill of the First Schedule. D (c) In the case of appointment of the Chief Justice of a High Court, he shall consult the Governor of the State in which the High Court has its principal seat, and the Chief Justice of India. (d) In the case of appointment of a judge of a High Court E other than the Chief Justice, he shall consult the Governor of the State in which the High Court has its principal seat, the Chief Justice of India and the Chief Justice of the High Court. (2) The President shall place the recommendations of the authorities consulted by him under sub-paragraph ( 1) before the Advisory Board at the time of obtaining the advice of that Board with regard to any appointment F referred to in that sub-paragraph. G 7.xxx 8.xxx"13 "The Framing of India's Constitution - Select Documents, Volume -IV, Page 84. H 648 SUPREME COURT REPORTS [2015] 13 S.C.R. A 28. It is significant that the Instrument of Instructions also kept the executive completely out of the picture in so far as the appointment of judges is concerned. No one from the executive was to be consulted or involved in the appointment process. 8 29. The Drafting Committee also proposed, apparently in view of the insertion of Schedule Ill-A that Article 103(2) of the Draft Constitution (relating to the appointment of judges of the Supreme Court and corresponding to Article 124(2) of the Constitution of lndia) 14 be modified as follows: C "(i) the words "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" be deleted in clause (2); and D · (ii) the first proviso to clause (2) be deleted ."15 30. In other words, the President was not expected to consult the Council of Ministers at all or to act on its advice but was to consult the Chief Justice oflndia and other judges and then take the advice of the Advisory Board. This was a mixture E of the Sapru Committee recommendation of the Head of State (or President as the high office came to be designated) acting on his/her own and yet the President not having 'unfettered discretion' in the appointment of judges. F 31. All the proposals, including those given by the Conference of Chief Justices, the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, were considered by the Drafting 14 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 G 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." 15 The Framing of India's Constitution - Select Documents, Volume - IV, H Page 147. SUPREME COURT ADVOCATES-ON-RECORD 649 ASSOCIATION v. U.0.1..[MADAN B. LOKUR, J.] Committee and on 4th November, 1948 the second draft of the A Constitution was introduced in the Constituent Assembly by Dr. B.R. Ambedkar, Chairman of the Drafting Committee. However, the decision of the Drafting Committee taken in October, 1948 was not incorporated in the Draft Constitution. Therefore, Dr. Ambedkar moved an amendment in the B Constituent Assembly on 31st December, 1948 to insert clause (5)a in Article 62 of the Draft Constitution. The amendment proposed by Dr. Ambedkar reads as follows: "That after clause 5 of Article 62 the following new clause c be inserted:- (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 Ill-A, but the validity of anything done by the D President shall not be called in question on the ground that it was done otherwise than in accordance with such instructions." 32. The amendment was discussed briefly and adopted E · by the Constituent Assembly on the same day. Although the decision of the Drafting Committee was to insert clause (5)a in Article 62 of the Draft Constitution and simultaneously delete a part of clause (2) of Article 103 of the Draft Constitution, the amendment relating to the deletion of clause (2) of Article 103 F of the Draft Constitution was apparently not moved by Dr. Ambedkar. It is not clear why. As far as the Instrument of Instructions is concerned, it is pointed out by Granville Austin that it was not actually, but implicitly, adopted by the Constituent Assembly. 16 G 33. A combined reading of the views of the Drafting Committee read with the Instrument of Instructions and the " Indian Constitution - Cornerstone of a Nation by Granville Austin at page 126, footnote 39 H 650 SUPREME COURT REPORTS [2015] 13 S.C.R. A insertion of clause (5)a in Article 62 of the Draft Constitution indicates that the thinking at the time was that in the matter of appointment of judges the President was to act in his/her individual capacity. This is very significant otherwise there was absolutely no need for an Instrument of Instructions or an B Advisory Board to be set up or for the complete exclusion of the Council of Ministers or the executive in the appointment of judges. However, this thinking was later on given up. Constituent Assembly Debates C 34. This historical background has an impact on understanding the subsequent debate in the Constituent Assembly that took place on 23rd and 24th May, 1949 when Article 103 of the Draft Constitution was considered and debated in the Constituent Assembly. It needs to be· 0 . emphasized at this stage that when the debate took place on 23'd and 24th May, 1949 it~as in the backdrop of the fact that clause (5)a had already been inserted in Article 62 of the Draft Constitution to the effect that in respect of several matters, including the appointment of judges, the President would act E in his/her individual capacity and the Council of Ministers was not even in the picture. The debate will be referred to a little later. 35. After a few months, on 11th October, 1949 the F President of the Constituent Assembly was informed by Mr. T.T. Krishnamachari that Schedule 111-Ais not being moved and that it could be taken out of the list. He also moved for the deletion of Schedule IV from the Draft Constitution. Explaining the move to delete Schedule IV from the Draft Constitution it G was stated that the matter should be left entirely to convention rather than be put in the body of the Constitution as a Schedule in the shape of an Instrument of Instructions and that there is a fairly large volume of opinion which favours that idea. H 36. Dr. Ambedkar added as follows: SUPREME COURT ADVOCATES-ON-RECORD 651 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] "Sir, with regard to the Instrument of Instructions, there A are two points which have to be borne in mind. The purpose of the Instrument of Instructions as was originally devised in the British Constitution for the Government of the colonies was to give certain directions to the head of the States as to how they should exercise their B discretionary powers that were vested in them. Now the Instrument of Instructions were effective in so far as the particular Governor or Viceroy to whom these instructions were given was subject to the authority of the Secretary of State. If in any particular matter which was of a serious C character, the Governor for instance, persistently refused to carry out the Instrument of Instructions issued to him, it was open to the Secretary of State to remove him, and appoint another and thereby secure the effective carrying D "out of the Instrument of Instructions. So far as our Constitution is concerned, there is no functionary created by it who can see that these Instruments of Instructions is carried out faithfully by the Governor. Secondly, the discretion which we are going to leave with E the Governor under this Constitution is very very meagre. He has hardly any discretion at all., He has to act on the advice of the Prime Minister in the matter of the selection of Members of the Cabinet. He has also to act on the advice of the Prime Minister and his Ministers of State F with respect to any particular executive or legislative action that he takes. That being so, supposing the Prime Minister does not propose, for any special reason or circumstances, to include in his Cabinet members of the minority community, there is nothing which the Governor G can do, notwithstanding the fact that we shall be charging him through this particular Instrument of Instructions to act in a particular manner. It is therefore felt, having regard under the Constitution who can enforce this, that no such H . 652 SUPREME COURT REPORTS [2015] 13S.C.R. A directions should be given. They are useless and can serve no particular purpose. Therefore, it was felt in the circumstances it is not desirable to have such Instrument of Instructions which really can be effective in a different set of circumstances which can by no stretch of B imagination be deemed to exist after the new Constitution comes into existence. That is the principal reason why it is felt that this Instrument of Instructions is undesirable."17 37. On the basis of the above discussion, Schedule IV c to the Draft Constitution was deleted and a motion to that effect was adopted. 38. Thereafter on 141h October, 1949 an ~mendment was moved by Mr. T.T. Krishnamachari to omit clause (5)a of Article 62 of the Draft Constitution. It was stated that since Schedule D lll~A was not moved, this clause becomes superfluous and therefore its omission was moved. The amendment to omit clause (5)a of Article 62 of the Draft Constitution was adopted. In support of this, Dr. Ambedkar [perhaps the main advocate of clause (5)a] had this to say, while emphasizing constitutional E obligations and constitutional conventions: "Every Constitution, so far as it r.elates to what we call parliamentary democracy, requires three different organs of the State, the executive, the judiciary and the F legislature. I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because G it is generally understood that the provisions of the Constitution are binding upon the different organs of the State. Consequently, it is to be presumed that those who work the Constitution, those who compose the H 17 http://parliamentofindia.nic.in/ls/debates/vol1 Op4 him SUPREME COURT ADVOCATES-ON-RECORD 653 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Legislature and those who compose the executive and A the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution. B Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the c State acting within its own limitations and obeying the supremacy of the other organs of the State. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself. D I remember, Sir, that you raised this question and I looked it up and I had with me two decisions of the King's Bench Division which I wanted one day to bring here and refer in the House so as to make the point quite clear. But I am sorry I had no notice today of this point being raised. But E this is the answer to the question that has been raised. No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and F that if there is any authority created by the Constitution which has to decide between that particular authority and any other authority, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the G President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict H 654 A B SUPREME COURT REPORTS [2015] 13S.C.R. with the interpretation of the judicial organ created by the Constitution. Shri H V. Karnath : If in any particular case the President does not act upon the advice of his Council of Ministers, will that be tantamount to a violation of the Constitution and will he be liable to impeachment? . The Honourable Dr. B. R. Ambedkar: There is not the slightest doubt about it."18 C Referring tothis extremely important exposition, Granville Austin concludes: "From this, one is forced to deduce thatAmbedkar and the members of the Drafting Committee, perhaps under pressure from Nehru or Patel, had come to the conclusion D that the written provisions of a non-justiciable Instrument of Instructions and the tacit conventions of cabinet government had equal value: both were legally unenforceable, but both provided a mechanism by which the legislature could control the Executive; and of the two, E conventions were the tidiest and the simplest way of limiting Executive authority."19 Transposing this to the relationship between the Judiciary and the Executive, it is quite dear that Dr. Ambedkar and indeed F the Constituent Assembly was of the view that constitutional obligations and constitutional conventions must be respected, unwritten though they may be. And, one of these constitutional obligations and constitutional conventions is that the view of the judiciary must be respected by the executive not only with G respect to judicial decisions but also in other matters that directly impact on the independence of the judiciary. " http'lipar!jamentofindja.nic jn/lsldebates/vol1 Op?c.htm H 19 Indian Constitution - Cornerstone of a Nation, pages 138-139 SUPREME COURT ADVOCATES-ON-RECORD 655 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] Debates on 23'd and 241h May, 1949 A 39. It is important to appreciate that the Constituent Assembly Debates (for short the CAD) to which our attention was drawn refer to the appointment of a judge of the Supreme Court and not specifically to the appointment of a judge of a 8 High Court. But the sum and substance of the debate is equally applicable to the appointment of a judge of a High Court. 40. On 23'd and 24th May, 1949 three significant amendments to Article 103(2) of the Draft Constitution relating to the appointment of judges of the Supreme Court were C considered in the Constituent Assembly. The first was moved . by Prof. K.T. Shah (Bihar: General) who suggested that the appointment of a judge of the Supreme Court should be after consultation with the Council of State. This suggestion was .intended to avoid political influence, party maneuvers and D ··. pressures in the appointment process. The second was moved . by Prof. Shibban Lal Saksena (United Provinces: General) who suggested that the appointment-Of the Chief Justice of India be subject to confirmation by two~thirds majority of the total E number of Members of Parliament assembled in a joint session of both the Houses of Parliament. The third was moved by Mr. B. Pocker Sahib (Madras: Muslim} who suggested that . the appointment of a judge of the Supreme Court should have ··the concurrence of the Chief Justice of India. In support of his F · amendment Mr. B. Pocker Sahib extensively referred to and relied on: the Merhoraridum submitted by the Conference of Chief Justices.As he put it: "I submit, Sir, the views expressed by the Federal Court and the Chief Justice of the .various High Courts G assembled in.conference are entitled to the highest weight befor-e this Assembly, before this provision is . passed. It is of the highest importance that the Judges of the· Supreme Court should not be made to feel that their H 656 A 8 c D E ,F G H SUPREME COURT REPORTS [2015] 13 S.C.R. existence or their appointment is dependent upon political considerations or on the will of the political party. Therefore, it is essential that there should be sufficient safeguards against political influence being brought to bear on such appointments. Of course, if a Judge owes his appointment to a political party, certainly in the course of his career as a Judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him. That the Judges should be above all these political considerations cannot be denied. Therefore, I submit that one of the chief conditions mentioned in the procedure laid down, that is the concurrence of the Chief Justice of India in the appointment of the Judges of the Supreme Court, must be fulfilled. This has been insisted upon in this memo. and that is a very salutary principle which should be accepted by this House. I submit, Sir, that it is of the highest importance that the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed. It has been very emphatically stated in this memo. that it is absolutely necessary to keep them above political influences. No doubt, it is said in this procedure that the Governor of the State also may be consulted; but that is a matter of minor importance. It is likely that the Governor may also have some political inclinations. Therefore, my amendment has omitted the name of the Governor. That the judiciary should be above all political parties and above all political consideration cannot be denied. I do not want to enter into the controversy at present, which was debated yesterday, as to the necessity for the indepen<;Jence of the judiciary so far as the executive is concerned. It is a SUPREME COURT ADVOCATES-ON-RECORD 657 ASSOCIATION v. U.0,1. [MADAN B. LOKUR, J.] matter which should receive very serious consideration A at the hands of this House and I hope the Honourable the Law Minister will also pay serious attention to this aspect of the question, particularly in view of the fact that this recommendation has bee.n maitting judge of the High Court under Article 217(3) of the B Constitution. 132 This Court held that the age determination should be by the President uninfluenced by the views of the executive. This was on the ground that were the executive to make the determination of the age of a sitting judge, it would 'seriously affect the independence of the Judiciary.' This view C was subsequently reiterated in Union of India v. Jyoti Prakash Mitter.133 143. The learned judges then held, on the basis of the scheme of the Constitution that had already been adverted to, o that the President means the Council of Ministers and the independence of the judiciary has been safeguarded by Article 217(3) of the Constitution by making mandatory the consultation with the Chief Justice of India in regard to age determination. This would prevent the possibility of extraneous considerations E entering into the decision of the Minister if he/she departs from the views of the Chief Justice of India. It was held that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the executive and if there is a departure from the views of the Chief Justice of India, the Court can F examine the issue in the light of the available facts. In such a 'sensitive subject' the last word should be with the Chief Justice of India. On this interpretation, it becomes irrelevant who formally decides the issue. This is what was held: G 131 [1965) 2 SCR 53 (Five Judges Bench) 132 217. 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. H ' 33 (1971) l SCC396(FivcJudgesBench) SUPREME COURT ADVOCATES-ON-RECORD 715 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] "In the light of the scheme of the Constitution we have A already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view thatthe President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, B satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article C making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of lridia and the Court will D have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the E rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue."134 F 144. This decision is important for three key reasons: (1) It recognized, judicially, the independence of the judiciary. (This was before the First Judges case which recognized that the independence of the judiciary was a basic feature of the Constitution). (2) It cleared the air by concluding that the G President was obliged to act on the advice of the Council of Ministers, even on the issue of appointment of judges. This was 'formalized' by the Constitution (Forty-second Amendment) 134 Paragraph 149 H 716 SUPREME COURT REPORTS [2015] 13 S.C.R. A Act, 1976. (3) In a sense, this decision was a precursor to the primacy conclusion in the Second Judg.es case with the last word on the subject being with the Chief Justice of India. 145. There are two observations that need to be made B at this stage. Firstly, Justice Krishna Iyer penned the decision in Samsher Singh on behalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did not refer to this decision in the First Judges case. The significance of this failure is that while in Sams her Singh it was held by Justice Bhagwati that c the 'last word' must belong to the Chief Justice of India, in the First Judges case it was held by Justice Bhagwati that the 'ultimate power' is with the executive. This completely divergent view, though in different circumstances, is inexplicable since the underlying principle is the same, namely, the status of the o Chief Justice of India with reference to the affairs concerning the judiciary. The second observation is that the 'last word' theory was not and has not been questioned by the executive in any case, even in the Second Judges case. Therefore, the 'last word' principle having been accepted, there is now no E reason to go back on it or to repudiate it. It may be mentioned in the 'last word' context that ever since the Constitution came to be enacted, writes Granville Austin, quoting from Chief Justice Mehr Chand Mahajan's 'A Pillar of Justice': F G "Nehru 'has always acted in accordance with the advice of the CJI', he recalled, except in rare circumstances, despite efforts by state politicians with 'considerable pull' to influence him."135 Sankalchand Sheth's case 146. Another decision of considerable significance is Union of India v. Sankalchand Himatlal Sheth.136 That case pertained to the transfer of judges from one High Court to 135 Granville Austin: Working a Democratic Constitution page131 H 136 (1977) 4 sec 193 (Five Judges Bench) SUPREME COURT ADVOCATES-ON-RECORD 717 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] another and the interpretation of Article 222(1) of the A Constitution.137 Referring to the independence of the judiciary as also Article 50 of the Constitution it was said by Justice Y.V. Chandrachud: "Having envisaged that the judiciary, which ought to act B as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that . concept a concrete form by making various provisions to secure and safeguard the independence of the c judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State." 147. On the meaning of consultation by the President D with the Chief Justice of India in the context of Article 222 of the Constitution, it was held that it has to be full and effective consultation and not formal or unproducti~e. It was said: "Article 222(1) which requires the President to consult E the Chief Justice of India is founded on the principle that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to consider F the situation fairly, competently and objectively. But there can be no purposeful consideration of a matter, in the 137 222. 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. G (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. H 718 A B c D E SUPREME COURT REPORTS [2015] 13 S.C.R. absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision .taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President, of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter, of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1 ), therefore, means full and effective, not formal or unproductive, consultation."138 F 148. It was observed that though 'consultation' did not mean 'concurrence' yet, as held in Samsher Singh consultation with the Chief Justice of India should be accepted and in such a sensitive subject the last word must belong to the Chief Justice of India. It was noted that if there is a departure G from the counsel of the Chief Justice of India, the Court would have the opportunity to examine if any extraneous considerat1ons entered into the decision. 139 H "' Paragraph 37 139 Paragraph 41 SUPREME COURT ADVOCATES-ON-RECORD 719 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 149. This view was reiterated by Justice Krishna lyer(for A himself and Justice Fazl Ali).140 Significantly, it was added that: 'It seems to us that the word, 'consultation' has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of lndia.' 141 150. The greater significance of Sankalchand Sheth lies in the conclusion, relying upon R. Pushpam, that for a meaningful consultation, both parties must have for consideration full and identical facts. It was said: "The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of B c a topic in order to enable them to evolve a correct, or at least, a satisfactory solution". In order that the two minds may be able to confer and produce a mutual impact, it is D essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision." 142 151. This view was accepted in the First Judges case E by Justice Bhagwati, 143 Justice Fazal Ali, 144 Justice V.D. Tulzapurkar 145 and Justice D.A. Desai.146 It was also accepted in the Second Judges case by Justice Pandian. 147 Memorandum of Procedure- 30.6.1999 152. Following up on the decision and opinion rendered in the Second Judges case and the Third Judges case, the Minister for Law in the Government of India framed and prepared one Memorandum of Procedure for the appointment "' Paragraph 115 141 Paragraph 115 142 Paragraph 39 143 Paragraph 30 144 Paragraph 563, 564 and 569 1" Paragraph 632 and 663 140 Paragraph 848 and 849 147 Paragraphs 129 to 133 and 164 F G H 720 SUPREME COURT REPORTS [2015] 13 S.C.R. A of a judge of the Supreme Court and another for the appointment of a judge of the High Court. These were shared with the Chief Justice of India. None of the each successive Chief Justices of India have complained or criticized any of the Memoranda or adversely commented on them, or at least · B we have not been told of any such complaint or objection. No one, including any successive Law Minister of the Government of India, complained that the Memoranda were unworkable or caused any hindrance or delay in the appointment of judges or did not correctly reflect the views of this Court in the two C decisions mentioned above or that they did not conform to any provision of the Constitution, either in letter or in spirit or even otherwise, or at least we have not been told of any such constraint. These Memoranda remained operational and the 0 appointment of judges to the superior judiciary made subsequent thereto has been in conformity with them. No one complained about the inability to effectively work any Memorandum of Procedure. 153. We were invited by Mr. Fali S. Nariman to mention E the procedure for the appointment of judges both in public interest and for reasons of transparency. The Memorandum of Procedure for the appointment of judges of the Supreme Court and the High Court are available on the website of the Department of Justice of the Government of lndia 148 and F therefore it is not necessary to make a detailed mention of the procedure. Similar Memoranda have been referred to in the Second Judges case by Justice Pandian.149 154. A reading of the Memoranda makes it explicit that G a proposal recommending the appointment of a judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend 148 http"{ldoi gov jn/si!es/defau!Vfiles/memohc pdf - (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.". c D E F G H • 972 SUPREME COURT REPORTS [2015] 13 S.C.R. A · 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 B a/ia 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 C 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 D 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 E 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 F 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, G 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 H SUPREME COURT ADVOCATES-ON-RECORD 973 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] effective role for the senior most judges of the higher judiciary A 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 B that the NJAC Act was void as it was passed by the Parliament before theAmendmentAct became operative. 9. Thus, the contentions on behalf of the petitioners are:- (i) Constitution is supreme and powers of all organs are C defined and controlled thereunder; (ii) Amending power of Parliament is limited by the concept of basic structure as judicially interpreted; (iii) Final interpreter of the Constitution and the scope of D powers thereunder is this Court; (iv) Independence of judiciary and separation of powers are part of basic structure; (v) Primacy of judiciary in appointment of judges is crucial E part of independence of judiciary and separation of powers and thus part of basic structure; (vi) Role of executive and legislature in appointment of judges beif:lg kept at minimum was also part of basic F structure; (vii) 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 G to the executive and legislature in such appointments; (viii) The impugned amendment enables stalling of appointment of judges proposed by the judiciary unless candidates suggested by the executive are H 974 A B c SUPREME COURT REPORTS [2015] 13 S.C.R. appointed thereby compromising independence of judiciary; (ix) 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; (x) The composition of the Commission will shake confidence of people in Judiciary if Executive or Legislature have dominant voice; and (xi) The impugned Act is beyond legislative competence of the Parliament. 10. The Joint Secretary, Department of Justice has filed a counter affid~vit on behalf of the Union of India (UOI), D defending the Amendment and the Act. UOl'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 E 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 F the final say in the matter. Further, provision for consultation with other judges does not justify creation of a collegium. UOl'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 G 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 H that the decisions of this Court in Second Judges' case and SUPREME COURT ADVOCATES-ON-RECORD 975 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] Third Judges' case laying down primacy of the judiciary in A 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 Artides 124(2) and 217(1) stand amended. However, it is contended that the view taken in the said judgments that the judiciary has primacy B 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 C 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 D 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. E 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 unde.r the purview of Right to Information Act, 2005 which will ensure transparency. Even if the Amendment was struck down, original F 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 4 with respect to Article 31 C of the Constitution which is pending before a nine-judge Bench. It is also submitted that the writ G 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 • (1996) 4 sec 49 H 976 SUPREME COURT REPORTS [2015] 13 S.C.R. A summed up as follows:- B c D E F G H ( 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 SUPREME COURT ADVOCATES-ON-RECORD 977 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] the judiciary was undemocratic; A (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 8 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 c transparency.; U) The impugned amendment in conferring power on Parliament and the Central Government in procedural matters did not violate independence of judiciary; and D (k) The impugned Act was within legislative competence of Parliament. 12. Shri Fali S. Nari man, 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, E 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. F 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 G 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 H 978 SUPREME COURT REPORTS [2015] 13 S.C.R. A taken identical stand, Shri Venugopal, appearing for the State of M.P., which is otherwise supporting the amendment, in his alternative submission, filed on 141h July, 2015 by way of additional propositions, inter alia submitted as follows: B c D E "3 Looking at the scheme of the 99'h Amendment and the National Judicial Commission Appointments Act, 2014 (NJACAct), 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 NJA C 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 991h 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 F 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 G struck down as being ultra vires the amendment. H xxxxxx xx xx xx xxxxx 6. Irrespective of the nine Judges' Bench judgment, certain concepts in law exist in the matter of the SUPREME COURT ADVOCATES-ON-RECORD 979 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] functioning of the judiciary in a democracy. The A 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 B 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 C 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 D 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 E 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 F 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 ggth amendment, which, obviously, is inconsistent with the Collegium system evolved by the nine judges G H 980 A B c D E SUPREME COURT REPORTS [2015] 13 S.C.R. 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 F 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 , G 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 H SUPREME COURT ADVOCATES-ON-RECORD 981 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] primacy. This would be the result not because the A 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 B 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 cqncept was evolved in the Second Judges' case. As a result, the 99th C 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 D would prevail. The President would then have to issue the warrant of appointment. xx~xx xxxxx xxxxx 16. Apart from the above, petitioners have also contended that the term 'eminent person' is too broad E 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 F 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 29 7@ Paras G 11-13 and VG Shukla v. State (DelhiAmn.) (1980 Supp. sec 249@ para 28)" The Issue 14. There being no dispute that a Constitutional H 982 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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 B 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 C 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 0 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 E whether primacy of judiciary and absence of Executive interference in appointment of judges is part of such basic structure. F 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 G Kesavananda Bharti vs. State of Kera/a 5 (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 '1973 (4) sec 225 H SUPREME COURT ADVOCATES-ON-RECORD 983 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] Parliament to alter the basic structure or framework of the A 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 B too wide meaning so as to permit damage to the constitutional values which depict the identity of the Constitution. 6 15.1 The basic structure or framework was not exhaustively defined but some of the features of the c 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, D 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 Ill and IV, unity and integrity of the nation.7 15.2 It was held that the power of the Parliament to amend E 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 F 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 G that having regard to importance of freedom of the individual and the importance of economic, social and political justice, 6 (Para 284, Sikri, CJ.); (Para 583, Shela! & Grover, JJ.); (Para 651 Hegde & Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna, J.) 7 Paras 292, 582, 666, 1159, 1426 H 984 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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 B 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 C amending power, if accepted, could damage the very democratic principles. Thus, the amendment m~ant addition or change within the broad contours of the preamble of the Constitution. The Parliament could adjust the Fundamental 0 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 E 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. F The vital provisions of Part Ill 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. G 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 H SUPREME COURT ADVOCATES-ON-RECORD 985 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] the country8• Even best of the Government was not averse to A 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 B 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 C of the Constitution was an organic instrument. The core commitment to social revolution lies in Parts Ill and IV. They are the conscience of the Constitution. They had roots deep in the struggle for independence. They were included with the D 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 E 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. Kha~na, J. observed that as a result of amendment, the old Constitution could not be done away with. Basic structure of framework F 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 G 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 ' Paras 652 and 653 H 986 SUPREME COURT REPORTS [2015] 13 S.C.R. A Section 3 of the Twenty-Fifth Amendment Act, 1971 adding Article 31-C as follows:- B c D E "416. Section 3 of the twenty-fifth amendment, reads thus: 3. After Article 31 B 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 nof 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 review9 F 9 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 G the Constitution. (2) The Legislature has been made the final authority to decide as to whether the law made by it is for the objec!S 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 H object and prevents a court from going into the question as to whether the SUPREME COURT ADVOCATES-ON-RECORD 987 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 15.4 The scope of amending power was again A considered by this Court in the cours(lof 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 10• Chandrachud, J. (later the Chief Justice) observed that it is not that only certain named features of the B 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 C of the Constitution, a feature of the Constitution could be held to be a basic feature 11 • 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 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." 10 (1975) supp. sec 1 11 Para 663 - For determining whether a particular feature of the Constitution D E F is a part of its basic structure, one has perforce to examine in each individual G 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. H 988 SUPREME COURT REPORTS [2015] 13S.C.R. A 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". 391h Amendment debarring challenge to election inter alia 8 of PM was struck down as being against the basic features of the Constitution. 12 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 c 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 o 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 E to enter into problems entwined in the "political thicket'', Parliament must also respect the preserve of the courts 13." 15.5. Validity of Forty-Second Amendment was considered by this Court in Minerva Mills Ltd. vs. Union of F /ndia 14• The court considered the validity of Sections 4 and 55 of the 42"d Amendment Act. By Section 4, Article 31 C 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 G be challenged on the ground that the said law was not for giving 12 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. 13 Para 688 H 1• (1980) 3 sec 625 SUPREME COURT ADVOCATES-ON-RECORD 989 ASSOCIATION v. U.0.1. [ADARSH·KUMAR GOEL, J.] effect to the said Part IV. By Section 55, it was provided that A 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 B 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 C structure of the Constitution. It was observed that the balance between Part Ill and Part IV of the Constitution was basic feature of the Constitution 15• Limited amending power of Parliament was also part of basic structure. 16 It was also held D 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. 17 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, E 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 b·asic F feature of the Constitution. 18 15.6. In L. Chandra Kumar vs. Union of lndia 19, 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 G 15 Para 56 1• Paras 17 and 88 17 Paras 12, 88 1• Paras 21, 86 and 87 " (1997) 3 sec 251 H .990 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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 B High Courts.20 15. 7. In l.R. Coelho vs. State of Tamil Nadu 21, bench of nine Judges, considered the scope of judicial review of inclusion of a law in Ninth Schedule by a constitutional C amendment thereby giving immunity from challenge in view of Article 31 B 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 o 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 Ill of the Constitution. It was further observed that the Court has to be guided by the E ·'impact test' in determining whether a basic feature was violated. The Court will first determine if there is violation of rights in Part Ill by impugned Amendment, its impact on the basic structure of the Constitution and the consequence of invalidation of such Amendment22 • F 15.8 In M. Nagaraj vs. Union of lndia 23 , 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 G challenge, it was observed that the Constitution sets out 20 Judicial review by constitutional courts was held to be part of basic structure. (Paras 77, 78) 21 (2001) 2 sec 1 22 Fundamental Rights under Articles 14, 15, 19 and 21 were held to be part of basic structure. (Paras 109 and 147) H ,, (2006) s sec 212. SUPREME COURT ADVOCATES-ON-RECORD 991 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] principles for an expanding future. This called for a purposive A 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 B of the concepts like federalism, secularism, reasonableness and socialism reasonableness are beyond the words ofa 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 C 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 D 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. 24 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 E F or part of basic structure is to be determined having regard to G 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 24 Identity test discussed in M. Nagaraj case (supra) (Para 28) H 992 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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 B 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 C 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 D 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 E 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 · F 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 G appointment of Judges is controlled directly or indirectly by the executive? H 16.3 To what extent primacy of judiciary in appointment of judges is part of unamendable basic feature of the SUPREME COURT ADVOCATES-ON-RECORD 993 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] Constitution. Since the issue has been gone into in earlier A binding precedents, reference to such decisions is apt. As already mentioned, it remains undisputed that power of judidal review, independence of judiciary, broad separation of power~ in three departments of the State, federalism and democracy are the basic features of the Constitution. Stand of the B 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. C 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 D 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 lndia 25 (First Judges' case), laying E down that primacy in the matter of appointment of judges rested with the Central Government 26• 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 F Central Government. It was held that the views of the CJ I 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' G 25 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) 26 Para 25, Pandian J. (Second Judges Case) : Reasons which led to reconsideration of First Judges' case H 994 SUPREME COURT REPORTS [2015] 13 S.C.R. A could not be read as 'concurrence'. 16.5 The view taken was doubted in Subhash Sharma vs. Union of lndia 27• The question whether opinion of CJ I with regard to appointment of Judges was entitled to primacy was 8 referred for consi.deration 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 philosophfof separation of powers and the cherished values of judicial independence. The role of c 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 o 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 E 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 F 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 G 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 H 21 1991 Supp (1) sec 574 - Paras 31-34, 42-46 SUPREME COURT ADVOCATES-ON-RECORD 995 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] the quality of selection. The view of the Chief Justices of States A and CJI .should be detisive 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 B 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 C 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 D 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 E 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 F appointment and advice given by the judiciary in the process had sanctity. The executive power of appointment comes into play by virtue of Articles 7 4 a11d 163 though it was not specifically provided for in Articles 124 and 217. The State was major litigant. The superior courts were faced with G 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 H 996 SUPREME COURT REPORTS [2015] 13 S.C.R. A change in appointment of judges by cu~bing the executive power28• 16.7 Kuldip Singh, J. observed that the concept of judicial independence did not only mean the security of tenure to 8 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 c 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 courts29 • There was established constitutional convention recognising the primal and binding opinion of CJI in the matter of appointment of D 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 to30 • With regard to the statement of Dr. Ambedkar on 24th E 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 31 • F 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 G of judges in superior judiciary could not be left to the discretion of the Executive. Independence of judges was required even H " Paras 195 and 207 29 Paras 334, 335 30 Para 357 31 Para 392 SUPREME COURT ADVOCATES-ON-RECORD 997 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) at the time of their appointment instead of confining it to the A 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 B 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 32. 16.9 Accordingly, conclusions were recorded in para 486 C 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 D 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 E 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 F M.N. Venkatachaliah, in its report dated 31 •1 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 G of judiciary 33• 16.11 Contention of the petitioners is that the said 32 Paras 421, 422, 447 and 450 33 Paras 9.6 and 9.7 . H 998 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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, 8 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 c 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 i~ upheld, the impugned amendment will have to be struck down unless it could be held o that the amended provisions also retained the said primacy. E 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 F 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 G 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. H SUPREME COURT ADVOCATES-ON-RECORD 999 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] Sankalchand Himatla/ Sheth34) anq in the Law Commission A Reports (particularly 14th and 121 st 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 B 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 c 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 • D 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 E 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 F 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 G 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 34 1977 (4) sec 193 (referred to in Paras 125 to 130 Second Judges' case) H 1000 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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 B 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 c 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. o. The view of the nine-Judge Bench was based on earlier binding decisions in Shamsher Singh vs. State of Punjab 35 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 E 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 F 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 G 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 H "1974 (2) sec a31 SUPREME COURT ADVOCATES-ON-RECORD 1001 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] decisions so that the law remains certain. 36 In exceptional A 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 37 . B 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 c 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 D ·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 E 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 ·F 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 G deficiencies in the working of the collegium system will be subject matter of discussion in the later part of this judgment. 36 Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28 to 31 37 2"" Judges' case, Paras 19 to 22 H 1002 SUPREME COURT REPORTS [2015] 13S.C.R A 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 B of the Executive as laid down in First Judges case. In Sixty Seventh Amen9ment 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' 38. Ninety-Eighth Amendment Bill, C 2003 was introduc~d 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 0 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 E 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 F and Third Judges' cases. D. Consequential consideration of issue of primacy of iudiciary in appointment of judges as part of basic structure. G 18. The earlier decisions in Secot:Jd and Third Judges' H 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 38 The Bill was introduced in the light of 121" Report of the Law Commission. SUPREME COURT ADVOCATES-ON-RECORD 1003 ASSOCIATION v. U.O.L [ADARSH KUMAR GOEL, J.] part of independence of judiciary. It is also essential to uphold A 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 B constitutionally assigned authority. This is the esse,,nce 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 C decisions of this Court in 2G Spectrum case39 and Coal Scam case4°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 D. 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. E Dissolution of State Assemblies and dismissal of State Governments have also been struck down by this Court41• 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 42• There are enumerable F 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 G controlled by the Executive, it will certainly affect impartiality of 39 Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1 40 Manohar Lal Sharma vs. UOI (2014) 2 SCC 532 "S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006) 2 SCC 1; M.C. Me~ta vs. Kamal Nath (1997) 1 SCC 388 42 Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651 H 1004 SUPREME COURT REPORTS [2015] 13S.C.R. A 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 8 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. C 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. o 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 E 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 l.R. Coelho case, inspite of separation of powers, different branches of F the Government could have overlapping functiohs43• In Sahara India Real Estate Corpn. Ltd. vs. SEB/44, 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 G 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 121•1 43 Para 64 44 (2012) 10 SC 603 H SUPREME COURT ADVOCATES-ON-RECORD 1005 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] Report of the Law Commission 45 • The report records that in A 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 B Judges' case was taken in the said report as the executive interference. The report also mentioned the concern arising outofsupersession in appointmentofCJI, non confirmation of additional judges, transfer of judges giving rise to c 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 671h Amendment Bill, 1990. D 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 E \ decisions. 18.3 In Second Judges' case, following findings have been recordea : (i) The word 'consultation' used in Articles 124, 217 and F 222 of the Constitution meant that the opinion of consultee was normally to be accepted thereby according primacy to the judiciary; (ii) The Executive being major litigant and role of G judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges; 45 Paras 1.21to1.23, 7.1and7.2 H ' 1006 A B c D SUPREME COURT REPORTS [2015] 13 S.C.R. (iii) Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges; (iv) 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; (v) 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 co/legium; and (vi) Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution. 18.4 Referring to fhe 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 E always emanate from the Chief Justice of the High Court/CJ I (in representative capacity as laid down) and last word on any objection thereto should be normally of the CJl.46 18.5 Reference was made to the interpretation of the F word 'consultation' in the context of appointment of judges in earlier judgments in Chandra MoulishwarPrasad vs. Patna High Court47, 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 G ordinarily regarded as prompted by oblique considerations vitiating the order." 46 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) H 4' 1969 (3) sec 56 SUPREME COURT ADVOCATES-ON-RECORD 1007 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 18.6 Reference was also made to the statement of Dr. A Ambedkar that it was dangerous to give power to appoint judges to the Executive or with concurrence of the Legislature.48 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.49 B 18. 7 Needless to say that the Constitution of India is unique. While reference to other Constitutions can be made for certain purposes50, the basic features of Indian Cqnstitution (which may be distinctly different from other Constituti:ons) have c to be retained and cannot be given a go bye. In the above . judgment, in the context of working of Indian Constitution, it Q 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 D found to be suitable to be followed in lndia 51 • 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 expres~ly mentioned that the Executive E 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 rn.erit but on considerations of community, caste, F 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 48 Para 25(5), Pandian, J. 49 Para 392, Verma, J. (Second Judges' case) 50 Such as power of Judicial Review, content of right to life etc. 51 Paras 184 & 192, Second Jud\Jes' case (In para 192 reference is made to famous statement of Dr. Ambedkar about unsuitability of UK and US models G in this regard) H 1008 SUPREME COURT REPORTS [2015] 13S.C.R. A continued to have powerful role, the independence of judiciary will disappear and the Courts will be filled with Judges who owe from appointments to politicians52 • It was recommended that the hands of CJI should be strengthened and instead of requiring consultation it should require recommendation by the B CJl53• There should be requirement of concurrence of the CJl54• 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 C Minister 55 • Again in 121 st 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 0 of Judges was required to be diluted56 • 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 E 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 57• To check arbitrary exercise of F 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 58• However, participation of the Executive in giving inputs by suggesting names before the proposal was initiated G 52 Para 14 53 Para19 54 Para 20 55 Paras 362-371 (Second Judges' case) 56 Paras 7.5- 7.11 (121" Law Commission Report) 57 Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J. H 58 Para 486 SUPREME COURT ADVOCATES-ON-RECORD 1009 ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] or giving feedback even after the proposal was initiated was A permissible. It was noted that right from beginning of the Constitution, all the proposals for appointments were always initiated by the Chief Justices 59. 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 B 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 judiciary6°; c (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 Executive61; D (iii) Judiciary has key role in working of the democracy and for upholding the rule of law62 ; (iv) The constitutional scheme provides for mandatory consultation with the CJI since the CJI was better E equipped to assess the merit of the candidate which consultation was not provided for in respect of other high constitutional appointmerits 63• (v) The appointment of judges was inextricably linked with F 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 64• 59 Para 505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376, Kuldip Singh, J. 60 Paras 84 and 197; Pandian, J; Paras 428 and 439, \(erma, J; Para 334, G Kuldip Singh, J 61 Paras 56, 72 to 74 and 207, Pandian, J. 62 Paras 55 to 57, Pandian, J. 63 Para 195 Pandian, J and Para 450, Verma, J.; 64 Paras 447 to 463, Verma, J.; Paras 195 to 197, Pan