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TMI Blog2015 (10) TMI 2687X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Ms. Suman, Adv., Mr. R.K. Kapoor, in person, Mr. Bishwajit Bhattacharyya, in person, Mr. Rajiv Daiya, in person, Mr. P.M. Duraiswamy, in person, Mr. V.N. Subramaniam, Adv., Mr. Subhasish Bhowmick, AOR, Mr. S.K.Sinha, Adv., Mr. Joydeep Mukherjee, Adv., for Mr. Rabin Majumder,AOR, Mr. Sriram Parakkat, Adv., Mr. Vishnu Shankar Jain, Adv., for Mr. Ankur S. Kulkarni, AOR, Ms. Prachi Bajpai, Adv. For the Respondent : Mr. Ranjit Kumar, Solicitor General of India (UOI) Mr. P.S. Narasimha, ASG, and for Mr. Guru Krishna Kumar, Sr. Adv., Ms. V. Mohana, Sr. Adv., Mr. D.L. Chidananda, Adv., Ms. Madhvi Divan, Adv., Mr. Abhinav Mukherji, Adv., Ms. Binu Tamta, Adv., Dr. Arghya Sengupta, Adv., Ms. Ranjeeta Rohatgi, Adv., Ms. Devanshi Singh, Adv., Ms. Diksha Rai, Adv., Mr. Ninad Laud, Adv., Mr. Ajay Sharma, Adv., Ms. Ritwika Sharma, Adv., Mr. Samit Khosla, Adv., Mr. Nikhil Rohatgi, Adv., Mr. R.K. Sharma, Adv., Mr. Gurmehar s. Sistani, Adv., for Mr. B.V. Balaram Das, AOR, Mr. Gautam Narayan, Adv., for SCBA Mr. Dushyant Dave, Sr. Adv., Ms. Aishwarya Bhati, Adv., Mr. Devashish Bharuka,AOR, Capt. K.S. Bhati, Adv., Mr. A.K. Tiwari, Adv., Mr. T. Gopal, Adv., Mr. Dilip Nayak, Adv., for State of Mr. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground to the Challenge 10 - 19 19 - 61 III. Motion by the respondents, for the review of the Second and Third Judges cases 20 - 53 61 - 115 IV. Objection by the petitioners, to the Motion for review 54 - 59 115 - 124 V. The Consideration 60 - 100 124 - 168 VI. Conclusion 101 168 - 169 3. The Order on Merits 1 - 258 170 - 439 I. Preface 1 - 4 170 - 171 II. Petitioners' Contentions, on Merits 5 - 66 171 - 252 III. Respondents' Response on Merits. 67 - 132 253 - 325 IV. The Debate and the Deliberation 133 - 245 326 - 419 V. The effect of striking down the impugned constitutional amendment 246 - 253 419 - 436 VI. Conclusions 254 - 256 436 - 438 VII. Acknowledgment 257 438 - 439 THE RECUSAL ORDER 1. In this Court one gets used to writing common orders, for orders are written either on behalf of the Bench, or on behalf of the Court. Mostly, dissents are written in the first person. Even though, this is not an order in the nature of a dissent, yet it needs to be written in the first person. While endorsing the opinion expressed by J. Chelameswar, J., adjudicating upon the prayer for my recusal, from hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court on 18.3.2015 reveal, that Mr. Santosh Paul, (in Writ Petition (C) No. 70 of 2015) was heard again on 18.3.2015, whereupon, Mr. Mukul Rohatgi and Mr. Ranjit Kumar, Solicitor General of India, also made their submissions. Thereafter, Mr. Dushyant A. Dave, Senior Advocate-and the President of Supreme Court Bar Association, addressed the Bench, as an intervener. Whereafter, the Court rose for the day. On 18.3.2015, the matter was adjourned for hearing to the following day, i.e., for 19.3.2015. (iv) The order passed on 19.3.2015 reveals, that submissions were advanced on that date, by Mr. Dushyant A. Dave, Mr. Mukul Rohatgi, Mr. T.R. Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S. Nariman was still addressing the Bench, the Court rose for the day, by recording inter alia, "The matters remained Part-heard." Further hearing in the cases, was deferred to 24.3.2015. (v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. Divan, were again heard. Additionally, Mr. Mukul Rohatgi concluded his submissions. On the conclusion of hearing, judgment was reserved. On 24.3.2015, a separate order was also passed in Writ Petition (C) No. 124 of 2015 (Mathews ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h for its consideration. 7. As we are not deciding the cases on merits, we do not think it appropriate to discuss the submissions made by the learned Counsel and the parties in-person. 8. It would be open to the Petitioners to make a prayer for interim relief before the larger bench as we do not think it appropriate to grant any interim relief at this stage. 4. During the hearing of the cases, Anil R. Dave, J. did not participate in any collegium proceedings. 5. Based on the order passed by the three-Judge Bench on 7.4.2015, Hon'ble the Chief Justice of India, constituted a five-Judge Bench, comprising of Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ. 6. On 13.4.2015 the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were notified in the Gazette of India (Extraordinary). Both the above enactments, were brought into force with effect from 13.4.2015. Accordingly, on 13.4.2015 Anil R. Dave, J. became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India, under the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow become (not out of choice but by force of Statute) a member ex officio of the National Judicial Appointments Commission, whose constitutional validity has been challenged. It is respectfully submitted that it would be appropriate if it is declared at the outset-by an order of this Hon'ble Court-that the Presiding Judge on this Bench will take no part whatever in the proceedings of the National Judicial Appointments Commission. Learned senior Counsel pointed out, that he had merely requested the then presiding Judge (Anil R. Dave, J.) not to take any part in the proceedings of the National Judicial Appointments Commission, during the hearing of these matters. He asserted, that he had never asked Anil R. Dave, J. not to hear the matters pending before the Bench. (ii) The submission made in writing by Mr. Mathews J. Nedumpara for the recusal of Anil R. Dave, J. was in the following words: ...VI. Though Hon'ble Shri Justice Anil R. Dave, who heads the Three-Judge Bench in the instant case, is a Judge revered and respected by the legal fraternity and the public at large, a Judge of the highest integrity, ability and impartiality, still the doctrine of nemo i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any division, unanimous. The plea of the Advocates on Record Association that the notification bringing into force the said Acts be stayed be rejected forthwith; so too its demand that the collegium system, which has ceased to be in existence, be allowed to be continued and appointments to the august office of Judges of High Courts and Supreme Court on its recommendation, for to do so would mean that Judges of the High Courts who are currently Chief Justices because they were appointed at a young age in preference over others will be appointed as Judges of the Supreme Court and if that is allowed to happen, it may lead to a situation where the Supreme Court tomorrow will literally be packed with sons and sons-in-law of former Judges. There are at least three Chief Justices of High Courts who are sons of former Judges of the Supreme Court. The Petitioner is no privy to any confidential information, not even gossips. Still he believes that if the implementation of the NJAC is stayed, three sons of former Judges of the Supreme Court could be appointed as Judges of the Supreme Court. The Petitioner has absolutely nothing personal against any of those Judges; the issue is not at all abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready sent a communication to Hon'ble the Chief Justice of India, that I would not participate in the proceedings of the 1+4 collegium (of which I was, a member), till the disposal of these matters. Yet, the objection was pressed. It needs to be recorded that Anil R. Dave, J. was a member of the 1+2 collegium, as well as, the 1+4 collegium from the day the hearing in these matters commenced. Surprisingly, on that account, his recusal was never sought, and he had continued to hear the matters, when he was so placed (from 11.3.2015 to 7.4.2015). But for my being a member of the 1+4 collegium, a prayer had been made for my recusal. 11. It was, and still is, my personal view, which I do not wish to thrust either on Mr. Fali S. Nariman, or on Mr. Mathews J. Nedumpara, that Anil R. Dave, J. was amongst the most suited, to preside over the reconstituted Bench. As noticed above, he was a part of the 1+2 collegium, as also, the 1+4 collegium, under the 'collegium system'; he would continue to discharge the same responsibilities, as an ex officio Member of the National Judicial Appointments Commission, in the 'Commission system', under the constitutional amendment enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not) ultimately declared invalid or void: whether in the first instance or by Review or in a Curative Petition." The above prayer for my recusal was supported by Mr. Mathews J. Nedumpara, Petitioner-in-person, in writing, as under: ...Hon'ble Shri Justice J.S. Khehar, the presiding Judge, a Judge whom the Petitioner holds in high esteem and respect, a Judge known for his uprightness, impartiality and erudition, the Petitioner is afraid to say, ought not to preside over the Constitution Bench deciding the constitutional validity or otherwise of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 ("the said Acts", for short). His Lordship will be a member of the collegium if this Hon'ble Court were to hold that the said Acts are unconstitutional or to stay the operation of the said Acts, for, if the operation of the Acts is stayed, it is likely to be construed that the collegium system continues to be in force by virtue of such stay order. Though Hon'ble Shri Justice J.S. Khehar is not a member of the National Judicial Appointments Commission, for, if the NJAC is to be constituted today, it will be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, by Hon'ble the Chief Justice of India. My recusal from the Bench at the asking of Mr. Fali S. Nariman, whom I hold in great esteem, did not need a second thought. It is not as if the prayer made by Mr. Mathews J. Nedumpara, was inconsequential. 14. But then, this was the second occasion when proceedings in a matter would have been deferred, just because, Hon'ble the Chief Justice of India, in the first instance, had nominated Anil R. Dave, J. on the Bench, and thereafter, had substituted him by nominating me to the Bench. It was therefore felt, that reasons ought to be recorded, after hearing learned Counsel, at least for the guidance of Hon'ble the Chief Justice of India, so that His Lordship may not make another nomination to the Bench, which may be similarly objected to. This, coupled with the submissions advanced by Mr. Mukul Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, that parameters should be laid down, led to a hearing, on the issue of recusal. 15. On the basis of the submissions advanced by the learned Counsel, the Bench examined the prayer, whether I should remain on the reconstituted Bench, despite my being a member of the 1+4 collegium. The Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that I have been a member of the 1+4 collegium, and it is likely that I would also shortly become a Member of the NJAC, if the present challenge raised by the Petitioners was not to succeed. I would therefore remain a part of the selection procedure, irrespective of the process which prevails. That however is the position with reference to four of us (on the instant five-Judge Bench). Besides me, my colleagues on the Bench-J. Chelameswar, Madan B. Lokur and Kurian Joseph, JJ. would in due course be a part of the collegium (if the writ-Petitioners before this Court were to succeed), or alternatively, would be a part of the NJAC (if the writ-Petitioners were to fail). In such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues. But, that was not the manner in which the issue has been canvassed. In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sualizing, that the position adopted by the Respondents, was not legally permissible, the Attorney General, the Solicitor General, and other learned Counsel representing the Respondents, adopted the only course open to them, namely, to seek reconsideration of the decisions rendered by this Court in the Second and Third Judges cases. For the above objective it was asserted, that various vital aspects of the matter, had not been brought to the notice of this Court, when the controversy raised in the Second Judges case was canvassed. It was contended that, had the controversy raised in the Second Judges case, been examined in the right perspective, this Court would not have recorded the conclusions expressed therein, by the majority. It was submitted, that till the Respondents were not permitted to air their submissions, with reference to the unacceptability of the judgments rendered in the Second and Third Judges cases, it would not be in the fitness of matters, for this Court to dispose of the present controversy, by placing reliance on the said judgments. 5. Keeping in mind the importance and the sensitivity of the controversy being debated, as also, the vehemence with which learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Second and Third Judges cases would be only academic, and therefore uncalled for. 9. However, if we accept the submissions advanced at the hands of the learned Counsel for the Petitioners, resulting in the revival of the earlier process, and simultaneously conclude in favour of the Respondents, that the Second and Third Judges cases need a re-look, we would be obliged to refer this matter to a nine-Judge Bench (or even, to a larger Bench), for re-examining the judgments rendered in the Second and Third Judges cases. II. THE BACKGROUND TO THE CHALLENGE: 10. Judges to the Supreme Court of India and High Courts of States, are appointed Under Articles 124 and 217 respectively. Additional Judges and acting Judges for High Courts are appointed Under Articles 224 and 224A. The transfer of High Court Judges and Chief Justices, of one High Court to another, is made Under Article 222. For the controversy in hand, it is essential to extract the original Articles 124 and 217, hereunder: 124. Establishment and constitution of Supreme Court. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. 217. Appointment and conditions of the office of a Judge of a High Court.--(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years: Provided that- (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in Clause (4) of Article 124 for the removal of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three-Constitution Bench judgments of this Court, which are now under pointed consideration. The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981. The correctness of the First Judges case was doubted by a three-Judge Bench in Subhash Sharma v. Union of India 1991 Supp (1) SCC 574, which opined that the majority view, in the First Judges case, should be considered by a larger Bench. The Chief Justice of India constituted a nine-Judge Bench, to examine two questions. Firstly, whether the opinion of the Chief Justice of India in regard to the appointment of Judges to the Supreme Court and to the High Courts, as well as, transfer of Chief Justices and Judges of High Courts, was entitled to primacy? And secondly, whether the fixation of the judge-strength in High Courts, was justiciable? By a majority of 7:2, a nine-Judge Bench of this Court, in the Second Judges case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993. Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.4.2015 (by its notification in the Gazette of India (Extraordinary) Part II, Section 1). The above constitutional amendment and the legislative enactment, are subject matter of challenge through a bunch of petitions, which are collectively being heard by us. In order to effectively understand the true purport of the challenge raised by the Petitioners, and the nuances of the legal and constitutional issues involved, it is imperative to have a bird's eye view of the First Judges case, upon which reliance has been placed by the learned Counsel for the Respondents, in their attempt to seek a review of the Second and Third Judges cases. The First Judges case- 1981 Supp SCC 87. 15. The Union Law Minister addressed a letter dated 18.3.1981 to the Governor of Punjab and to Chief Ministers of all other States. The addressees were inter alia informed, that "...one third of the Judges of High Court, should as far as possible be from outside the State in which the High Court is situated...". Through the above letter, the addressees were requested to "...(a) obtain from all additional Judges working in the High Courts... their consent to be appointed as permanent Judges in any other Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their appointment was extended for three months, from 7.3.1981. These short term appointments were assailed, as being unjustified Under Article 224, besides being subversive of the "independence of the judiciary". This writ petition was also transferred for hearing to the Supreme Court. So far as the circular letter dated 18.3.1981 is concerned, the Supreme Court, on an oral prayer made by the Petitioner, directed that any additional Judge who did not wish to respond to the circular letter may not do so, and that, he would neither be refused extension nor permanent appointment, on the ground that he had not sent a reply to the letter dated 18.3.1981. Thereafter, the appointment of S.B. Wad, J., was continued, as an additional Judge for a period of one year from 7.6.1981, but O.N. Vohra and S.N. Kumar, JJ., were not continued beyond 7.6.1981. (iii & iv) A third writ petition, was filed by J.L. Kalra and others who were practicing Advocates, in the Delhi High Court. And a fourth writ petition was filed by S.P. Gupta, a practicing Advocate, of the Allahabad High Court. The third and fourth writ petitions were for substantially the same relief's, as the earlier two petitions. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Judges and Chief Justices from one High Court to another. 16. The opinions recorded in the First Judges case, insofar as they are relevant to the present controversy, are being summarized herein: P.N. Bhagwati, J. (as he then was): (i). On the subject of independence of the judiciary, it was opined, that "...The concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the entire Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective...The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive, and therefore, it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e term "consultation" used in Article 222(1) had the same meaning, which it had in Articles 124(2) and 217(1), it was held that, "...therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system..." It was further concluded, that the above observation in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193 would apply with equal force to determine the scope and meaning of the term "consultation" within the meaning of Articles 124(2) and 217(1). Each of the constitutional functionaries, required to be consulted under these two Articles, must have for his consideration, full and identical facts bearing upon appointment or non-appointment of the person concerned, and the opinion of each of them taken on identical material, must be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges to the Supreme Court, was not a very satisfactory mode of appointment, because wisdom and experience demanded, that no power should rest in a single individual howsoever high and great he may be, and howsoever honest and well-meaning. It was suggested, that it would be more appropriate if a collegium would make the recommendations to the President, with regard to appointments to the higher judiciary, and the recommending authority should be more broad based. If the collegium was comprised of persons who had knowledge of persons, who may be fit for appointment to the Bench, and possessed the qualities required for such appointment, it would go a long way towards securing the right kind of Judges, who would be truly independent (paragraph 31). (v). It was held, that the appointment of an additional Judge, must be made by following the procedure postulated in Article 217(1). Accordingly, when the term of an additional Judge expired, and he ceased to be a Judge, his reappointment could only be made by once again adopting the procedure set out in Article 217(1). The contention, that an additional Judge must automatically and without any further consideration be appointed as an add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork, pending in the High Court, required the services of another Judge? It was opined, that the tenure of an additional Judge, was only dependent on the arrears of work, or the temporary increase in the business of a High Court. And since an additional Judge was not on probation, his performance could not be considered to determine, whether he was fit for appointment as a permanent Judge. Therefore, it was concluded, that if the volume of work pending in the High Court justified the appointment of an additional Judge, there could be no reason, why the concerned additional Judge should not be appointed for another term. The submission that the two years' period mentioned in Article 224, depicted the upper limit of the tenure, and that the President was competent to appoint an additional Judge, for any shorter period, was rejected. Since the fitness of a Judge, had been considered at the time of his initial appointment, therefore, while determining whether he should be reappointed, Under Article 217(1), it was opined, that the scope of inquiry was limited, to whether the volume of work pending in the High Court, necessitated his continuation. (iii). Referring to the opinion expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii). With reference to the transfer of K.B.N. Singh, CJ., from the Patna High Court to the Madras High Court, it was opined, that even if the above transfer had been made for administrative reasons, and in public interest, it was likely to cause some injury to the transferee, and it would only be fair to consider the possibility of transferring him, where he would face least difficulties, namely, where the language difficulty would not be acute. S. Murtaza Fazal Ali, J. (i). On the issue, whether the transfer of a High Court Judge Under Article 222 required the consent of the Judge proposed to be transferred, it was opined, that a non-consensual transfer, would not amount to punishment, nor would it involve any stigma. It was accordingly concluded, that a transfer made after complying with Article 222, would not mar or erode the "independence of the judiciary" (paragraph 345). (ii). With reference to appointing Chief Justices of High Courts from outside the State, and for having 1/3rd Judges in every High Court from outside the State, it was expressed, that Article 222 conferred an express power with the President, to transfer a Judge (which includes, Chief Justice) fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made. And only after having done so, the Chief Justice of India, could forward his opinion to the President. Applying the above facets of the consultation process, with respect to the validity of the order dated 19.1.1981, by which K.B.N. Singh, CJ., was transferred, it was held, that the consultation process contemplated Under Article 222, had been breached, rendering the order passed by the President invalid (paragraph 589). V.D. Tulzapurkar, J.: (i). Insofar as the question of "independence of the judiciary" is concerned, it was asserted that all the Judges, who had expressed their opinions in the matter, had emphasized, that the framers of the Constitution had taken the utmost pains, to secure the "independence of the Judges" of the higher judiciary. To support the above contention, several provisions of the Constitution were referred to. It was also pointed out, that the Attorney General representing the Union of India, had not dispute the above proposition (paragraph 639). (ii). With reference to additional Judges recruited Under Article 224(1), from the fraternity of practicing Advocates, it was pointed out, that an undertaking was taken from them at the time of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not, be resorted to (paragraph 629). (vi). On the question of primacy of the Chief Justice of India, with reference to Article 217(1), the view expressed was, that the scheme envisaged therein, by implication and intent, clearly gave primacy to the advice tendered by the Chief Justice of India. It was however sought to be clarified, that giving primacy to the advice of the Chief Justice of India, in the matter of appointment of Judges of the High Court, should not be construed as a power to veto any proposal. And that, if the advice of the Chief Justice of India, had proceeded on extraneous or non germane considerations, the same would be subject to judicial review, just as the President's final decision, if he were to disregard the advice of the Chief Justice of India, but for justified and cogent reasons. Interpreting Article 217(1) in the above manner, it was felt, would go a long way in preserving the "independence of the judiciary" (paragraph 632). (vii). With regard to the scope of 'consultation', contemplated Under Article 222(1), the conclusion(s) drawn by the majority view, in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193, were endorsed. (viii). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for a collateral purpose, namely, to bypass Article 222(1) and to confront the Chief Justice of India, with a fait accompli, and as such, the same was liable to be declared as illegal and unconstitutional (paragraph 655). (xii). The above circular letter dated 18.3.1981, was also held to be violative of Article 14, since invidious discrimination was writ large on the face of the circular letter. For this additional reason, the letter of the Union Law Minister dated 18.3.1981, it was felt, was liable to be struck down (paragraphs 659 and 660). (xiii). On the subject of non-continuation of S.N. Kumar, J., it was held, that it was abundantly clear from the correspondence and notings, that further details and concrete facts and materials relating to his integrity, though specifically asked for by the Chief Justice of India, were not furnished, and the letter dated 7.5.1981, which contained such details and concrete facts and materials, were kept away from him, leading to the inference, that facts which were taken into consideration by the Union Law Minister and the Chief Justice of Delhi High Court (which provided the basis to the appointing authority, not to extend the appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primacy on the issue of appointment of Judges of High Courts (paragraphs 724, 726 and 728). (iii). It was also concluded, that on the expiry of the original term of appointment of an additional Judge Under Article 224, the continuation of the concerned Judge, would envisage the re-adoption of the procedure contained in Article 217 (paragraphs 736 and 745). (iv). It was felt, that there was no gainsaying, that a practice which had been followed for over 25 years, namely, that an additional Judge was always considered for a fresh tenure, if there was no permanent vacancy, and if there was such a vacancy, he was considered for appointment as a permanent Judge. It was held, that the contention of the Attorney General, that such additional Judge had no priority, preference, weightage or right to be considered, and that, he was on par with any other person, who could be brought from the market, would amount to disregarding the constitutional scheme, and must be rejected (paragraph 759). It was held, that when a Judge was appointed for a term of two years, as an additional Judge, it was sufficient to contemplate, that his appointment was not as a permanent Judge. And therefore, if a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer Under Article 222(1), deserved to be rejected (paragraph 813). It was however observed, that the above power of transfer Under Article 222(1) could not be exercised in the absence of public interest, merely on the basis of whim, caprice or fancy of the executive, or its desire to bend a Judge to its own way of thinking. Three safeguards, namely, full and effective consultation with the Chief Justice of India, the exercise of power only aimed at public interest, and judicial review--in case the power was exercised contrary to the mandate of law, were suggested to insulate the "independence of the judiciary", against an attempt by the executive to control it (paragraphs 813 to 815). (ix). It was also concluded, that the transfer of an individual Judge, for something improper in his behavior, or conduct, would certainly cast a slur or attach a stigma, and would leave an indelible mark on his character. Even the High Court to which he was transferred would shun him, and the consumers of justice would have little or no faith in his judicial integrity. Accordingly it was concluded, that a transfer on account of any complaint or grievance against a Judge, referable to his conduct or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sit in appellate judgment, over the advice tendered by the Chief Justice of the High Court. It was pointed out, that the advice tendered by the Chief Justice of India, emerged after taking into account, not only the primary material before him, but also, the assessment made by the Chief Justice of the High Court. And therefore, when he rendered his advice, the assessment of the Chief Justice of the High Court, must be deemed to have been considered by him. It was pointed out, that from the constitutional scheme, it appeared, that in matters concerning the High Courts, there was a close consultative relationship, between the President and the Chief Justice of India. In that capacity, the Chief Justice of India functioned, as a constitutional check, on the exercise of arbitrary power, and was the protector of the "independence of the judiciary" (paragraph 891). (iv). On the subject of appointment of Judges to the High Courts, it was concluded, that the appointment of an additional Judge, like the appointment of a permanent Judge, must be made in the manner prescribed in Article 217(1). Accordingly, it was felt, that there was no reason to suspect, that a person found fit for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary was, that the Judge should know why his transfer was proposed, so that he would be able to acquaint the Chief Justice of India, why he should not be so transferred. It was further clarified, that the process of consultation envisaged Under Article 222(1) required, that all the material in possession of the President must be placed before the Chief Justice of India (paragraph 919). (viii). It was held that, it was open to the Judge, who was subjected to transfer, to seek judicial review, by contesting his transfer on the ground that it violated Article 222(1) (paragraph 920). (ix). It was also felt, that the power to transfer a Judge from one High Court to another, could constitute a threat, to the sense of independence and impartiality of the Judge, and accordingly, it was held, that the said power should be exercised sparingly, and only for very strong reasons (paragraph 921). (x). On the validity of the transfer of K.B.N. Singh, CJ., it was concluded, that the considerations on which the transfer had been made, could be regarded as falling within the expression "public interest", and therefore, the order of transfer did not violate Article 222(1). (xi). Insofar as the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Judges only, then they will be Judges' Judges, and such appointments may not fit into the scheme of popular democracy (paragraph 1042). (iv). It was held, that the Constitution did not prescribe different modes of appointment for permanent Judges, additional Judges, or acting Judges. All of them were required to be appointed by the same process, namely, in the manner contemplated Under Article 217(1) (paragraph 1061). The appointment of almost all High Court Judges initially as additional Judges Under Article 224(1), and later on as permanent Judges Under Article 217(1), was not conducive to the independence of judiciary (paragraph 1067). It was held, that the Constitution did not confer any right upon an additional Judge, to claim as of right, that he should be appointed again, either as a permanent Judge, or as an additional Judge. Accordingly, it was held, that there was no such enforceable right (paragraph 1074). (v). Despite the above, it was observed, that in the absence of cogent reasons for not appointing an additional Judge, the appointment of somebody else in his place, would be an unreasonable and a perverse act, which would entitle the additional Judge, to mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alchand Himatlal Sheth case (1977) 4 SCC 193. It was accordingly concluded, that there was no ground to hold, that the above transfer was not considered by the Chief Justice of India, in a fair and reasonable way. On the facts and circumstances of the case, it was concluded that it was not possible to hold that the above transfer was either illegal or void (paragraphs 1252 and 1257). The Second Judges Case-(1993) 4 SCC 441: 17. For the purpose of adjudication of the present issue, namely, whether the judgment rendered by this Court in the Second Judges case needs to be re-examined, it is not necessary to delineate the views expressed by the individual Judges, as the conclusions drawn by them are per se not subject matter of challenge. The limited challenge being, that vital aspects of the matter, which needed to have been considered were not canvassed, and therefore, could not be taken into consideration in the process of decision making. In the above perspective, we consider it just and proper to extract hereunder, only the conclusions drawn by the majority view: (1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one. (11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (12) The initial appointment of Judge can be made to a High Court other than that for which the proposal was initiated. (13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated. (14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365 : AIR 1982 SC 149, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us. The Third Judges case (1998) 7 SCC 739: 18. For exactly the same reasons as have been noticed with reference to the Second Judges case, it is not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India for non-appointment of a judge recommended for appointment. 5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer. 6. "Strong cogent reasons" do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation. 7. The views of the Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion. 8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India. 9. Recommendations made by the Chief Justice of India without complying with the norms and requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke down the same, failing which the new regime would replace the erstwhile system. 22. First and foremost, our attention was drawn to Article 124 of the Constitution, as it existed, prior to the present amendment. It was submitted that Article 124 contemplated, that the Supreme Court would comprise of the Chief Justice of India, and not more than seven other Judges (unless, the Parliament by law, prescribed a larger number). It was submitted, that Clause (2) of Article 124 vested the power of appointment of Judges of the Supreme Court, with the President. The proviso Under Article 124(2) postulated a mandatory "consultation" with the Chief Justice of India. Appointments contemplated Under Article 124, also required a non-mandatory "consultation" with such other Judges of the Supreme Court and High Courts, as the President may deem necessary. It was accordingly submitted, that the consultation contemplated Under Article 124(2), at the hands of the President was wide enough to include, not only the collegium of Judges, in terms of the judgment rendered by this Court in the Second Judges case, but each and every single Judge on the strength of the Supreme Court, and also the Judges o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court's attention to Article 125, so as to contend, that the salary payable to the Judges of the Supreme Court has to be determined by the Parliament by law, and until such determination was made, the emoluments payable to a Judge would be such, as were specified in the Second Schedule. It was submitted, that the Parliament was given an express role to determine even the salary of Judges, which is a condition of service of the Judges of the Supreme Court. He also pointed to Article 126, which contemplates, the appointment of one of the Judges of the Supreme Court, to discharge the functions of Chief Justice of India, on account of his absence or otherwise, or when the Chief Justice of India, was unable to perform the duties of his office. The Court's attention was also drawn to Article 127, to point out, that in a situation where the available Judges of the Supreme Court, could not satisfy the quorum of the Bench, required to adjudicate upon a controversy, the Chief Justice of India could continue the proceedings of the case, by including therein, a Judge of a High Court (who was qualified for appointment as a Judge of the Supreme Court), in order to make up the quorum, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament could confer, by law, the power to issue directions, orders or writs, in addition to the framework demarcated through Article 32(2). This, according to the learned Attorney General, indicated another participatory role of the Parliament in the activities of the Supreme Court. Pointing to Article 140, it was submitted, that the Parliament could by law confer upon the Supreme Court supplemental powers, in addition to the powers vested with it by the Constitution, as may appear to the Parliament to be necessary or desirable, to enable the Supreme Court to exercise its jurisdiction more effectively. It was submitted, that one Article after the other, including Article 140, indicated a collective and participatory role of the President and the Parliament, in the activities of the Supreme Court. Having read out Article 142(2), it was asserted, that even on the subject of securing the attendance of any person, and the discovery or production of any documents, or the investigation or punishment of any contempt of itself, the jurisdiction of the Supreme Court was subject to the law made by the Parliament. The learned Attorney General, also referred to Article 145, whereunder, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of leave of absence and pension, were also left to the wisdom of Parliament, to be determined by law. And until such determination, Judges of the High Courts were entitled to allowances and rights, as were indicated in the Second Schedule. The Court's attention was also drawn to Article 222, wherein, the President was authorized, after "consulting" the Chief Justice of India, to transfer a Judge from one High Court to another. Inviting the Court's attention to the provisions referred to in the foregoing two paragraphs contained in Part V, Chapter IV-The Union Judiciary, and Part VI, Chapter V-The High Courts in the States, it was asserted, that the role of the President, and also, that of the Parliament was thoughtfully interwoven in various salient aspects, pertaining to the higher judiciary. Exclusion of the executive and the legislature, in the manner expressed through the Second Judges case, in the matter of appointment of Judges to the higher judiciary, as also, transfer of Judges and Chief Justices of one High Court to another, was clearly against the spirit of the Constitution. 26. It was submitted, that the method of appointment of Judges to the higher judiciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may ultimately defeat the very purpose of the division or sub-classification. In that view, para 2(i) not only becomes constitutionally invalid but also suffers from the vice of non-application of mind and arbitrariness. xxx 772. We may now turn to Constituent Assembly debates with a view to ascertain the original intent underlying the use of words "backward class of citizens". At the outset we must clarify that we are not taking these debates or even the speeches of Dr. Ambedkar as conclusive on the meaning of the expression "backward classes". We are referring to these debates as furnishing the context in which and the objective to achieve which this phrase was put in Clause (4). We are aware that what is said during these debates is not conclusive or binding upon the Court because several members may have expressed several views, all of which may not be reflected in the provision finally enacted. The speech of Dr. Ambedkar on this aspect, however, stands on a different footing. He was not only the Chairman of the Drafting Committee which inserted the expression "backward" in draft Article 10(3) [it was not there in the original draft Article 10(3)], he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. Ltd. AIR 1952 SC 366, the Golaknath case (supra), the Privy Purses case (supra), and Union of India v. H.S. Dhillon (1971) 2 SCC 779, there are dicta against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath case (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in which they met any criticism, the resultant decisions taken thereupon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the national a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of forces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and what attempts were made to intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f High Courts. The Court was also informed, that the Union Constitution Committee presented its report to the Constituent Assembly on 4.7.1947, also pertaining to appointments to the higher judiciary. Yet another memorandum, on the Principles of a Model Provincial Constitution was prepared by the Constitutional Adviser on 13.5.1947, relating to appointments to the higher judiciary, which was adopted by the Provincial Constitution Committee. Reliance was placed by the Attorney General, on the speech delivered by Sardar Vallabhbhai Patel on 15.7.1947, wherein he expressed the following views: "The committee have given special attention to the appointment of judges of the High Court. This is considered to be very important by the committee and as the judiciary should be above suspicion and should be above party influences, it was agreed that the appointment of High Court judges should be made by the President of the Union in consultation with the Chief Justice of the Supreme Court, the Chief Justice of the Provincial High Court and the Governor with the advice of the Ministry of the Province concerned. So there are many checks provided to ensure fair appointments to the High Court." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommended by Justice Frankfurter, was rejected. It was pointed out, that the second draft of the Constitution was placed before the Constituent Assembly on 21.2.1948. Articles 103 and 193 of the above draft, pertained to appointments of Judges to the Supreme Court and High Courts. It was submitted, that several public comments were received, with reference to the second draft. In this behalf, a memorandum was also received, from the Judges of the Federal Court and the Chief Justices of the High Courts which, inter alia, expressed as under: It seems desirable to insert a provision in these articles (Draft Articles 103(2) and 193(2) to the effect that no person should be appointed a judge of the Supreme Court or of a High Court who has at any time accepted the post of a Minister in the Union of India or in any State. This is intended to prevent a person who has accepted office of a Minister from exercising his influence in order to become a judge at any time. It is the unanimous view of the judges that a member of the Indian Civil Service should not be a permanent Chief Justice of any High Court. Suitable provision should be made in the article for this. It was submitted, that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deems it necessary to do so. It was pointed out, that none of the above proposals were accepted. Reference was also made to the Editor of the Indian Law Review and the Members of the Calcutta Bar Association, who made the following suggestions: That in Clause (4) of Article 103 the words "and voting" should be deleted, as they consider that in an important issue as the one contemplated in this clause, opportunity should be as much minimized as practicable for the legislators for remaining neutral. to which, the response of B.N. Rau was as under: "In the Constitutions of Canada, Australia, South Africa and Ireland, a bare majority of the members present and voting suffices for the presentation of the address for removal of a judge. Article 103(4) requires a two-thirds majority of those present and voting. It is hardly necessary to tighten it further by deleting the words "and voting". With reference to the suggestions regarding non-reduction of salaries of Judges, the Constitutional Adviser made the following comments: The constitutional safeguard against the reduction of salary of the Chief Justice and the judges of a High Court below the minimum has been pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the time being happens to be concerned. At the same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to crate specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic" 30. The proposals and the decision taken thereon, were brought to our notice, specially the observations made by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar, and finally Dr. B.R. Ambedkar. Dr. B.R. Ambedkar had stated thus: Finally, BR Ambedkar said: Mr. President, Sir, I would just like to make a few observations in order to clear the position. Sir, there is no doubt that the House in general, has agreed that the independence of the Judiciary from the Executive should be made as clear and definite as we could make it by law. At the same time, there is the fear that in the name of the independence of the Judiciary, we might be creating, what my Friend Mr. T.T. Krishnamachari very aptly called an "Imperium in Imperio". W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament, and till such legislative enactment was made, their conditions of service were determinable by the President, by framing rules, in consultation with the Comptroller and Auditor-General of India. Based on the above, it was contended, that even though the appointment of the Comptroller and Auditor-General of India, was exclusively vested with the executive, there had never been an adverse murmur with reference to his being influenced by the executive. The inference sought to be drawn was, that the manner of "appointment" is irrelevant, to the question of independence. Independence of an authority, according to the learned Attorney General, emerged from the protection of the conditions of the incumbent's service, after the appointment had been made. 32. In the like manner, our attention was drawn to Part XV of the Constitution, pertaining to elections. It was submitted, that Article 324 vested the superintendence, direction and control of elections to the Parliament, and the Legislatures of every State, and election to the offices of President and Vice-President, with the Election Commission. The Election Commission in terms of Article 324(2) was comprised of the Chief E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply Co. v. Union of India AIR 1956 SC 479). The observations of Patanjali Sastri, C.J., in State of Madras v. V.G. Row AIR 1952 SC 196, which have become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts "not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid down upon them by the Constitution". The Respondents have also contended that to let the court have judicial review over constitutional amendments would mean involving the court in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales 1950 AC 235 at 310: The problem to be solved will often be not so much legal as political, social or economic, yet it must be solved by a court of law. For where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament. There is ample evidence in the Constitution itself to indicate that it cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government. 78. While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. 79. In Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549, this Court held that: (AIR p. 556, para 12) 12. ...The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times. 34. The learned Attorney General emphasized, that there was a very serious and sharp cleavage of opinion on the subject, which is being canvassed before this Court. Relying on the judgment rendered by in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193, he pointed out, that in the aforesaid judgment, this Court had arrived at the conclusion, that the term "consultation" could not be deemed to be "concurrence", with reference to Article 222. In conjunction with the above, he invited our attention to the judgment in the Samsher Singh case (1974) 2 SCC 831, wherein a seven-Judge Bench, which was dealing with a controversy relating to Judges of subordinate courts, and the impact of Article 311, had examined the question whether the President was to act in his individual capacity, i.e., at his own discretion; or he was liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in the First Judges case, wherein it was held, that "consultation" did not include "concurrence", and further, that the power of appointment of Judges Under Article 124, was vested with the President, and also, that the President could override the views of the consultees. Last of all, to substantiate his submission(s) pertaining to the cleavage of opinion, reliance was placed on the Kesavananda Bharati case: (1973) 4 SCC 225, wherein a thirteen-Judge Bench of this Court, had held, with reference to the power of amendment Under Article 368, that the concept of "basic structure", was a limitation, to the otherwise plenary power of amendment of the Constitution. 36. In his effort to persuade us, to refer the instant matter, to a nine-Judge Bench (or, to a still larger Bench), the learned Attorney General placed reliance on Suraz India Trust v. Union of India (2012) 13 SCC 497, and invited our attention to the following: 3. Shri A.K. Ganguli, learned Senior Advocate, has submitted that the method of appointment of a Supreme Court Judge is mentioned in Article 124(2) of the Constitution of India which states: 124. (2) Every Judge of the Supreme Court shall be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the judiciary and the executive; or whether the judiciary can alone appoint Judges of the Supreme Court and High Courts? (5) Whether the word "consultation" in Article 224 means "concurrence"? (6) Whether by judicial interpretation words in the Constitution can be made redundant, as appears to have been done in the aforesaid two decisions which have made consultation with the High Court Judges redundant while appointing a Supreme Court Judge despite the fact that it is permissible on the clear language of Article 124(2)? (7) Whether the clear language of Article 124(2) can be altered by judicial verdicts and instead of allowing the President of India to consult such Judges of the Supreme Court as he deems necessary (including even junior Judges) only the Chief Justice of India and four seniormost Judges of the Supreme Court can alone be consulted while appointing a Supreme Court Judge? (8) Whether there was any convention that the President is bound by the advice of the Chief Justice of India, and whether any such convention (assuming there was one) can prevail over the clear language of Article 124(2)? (9) Whether the opinion of the Chief Justice of India has any prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred the matter to a nine-Judge Bench. 13. At this juncture, Mr. Ganguli as well as Mr. Vahanvati have submitted that even at the stage of preliminary hearing for admission of the petition, the matter requires to be heard by a larger Bench as this matter has earlier been dealt with by a three-Judge Bench and involves very complicated legal issues. 14. In view of the above, we place the matter before the Hon'ble the Chief Justice for appropriate directions. It was pointed out, that when the above matter was placed before a three-Judge Bench of this Court, the same was dismissed on the ground of locus standi. Yet, since the above order was passed in the absence of the Petitioner trust, an application had been moved for recall of the above order. It was his assertion, that whether or not a recall order was passed with reference to the questions raised, it was apparent, that a Bench of this Court has already expressed the view, that the conclusions drawn in the Second and Third Judges cases, need a relook. 37. Finally, to support the above suggestions, the Court's attention was drawn to the observations recorded by H.M. Seervai in the 4th edition of his book "Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not possible to lay down any principles which should govern the approach of the Court in dealing with the question of revisiting its earlier decision. It would ultimately depend upon several relevant considerations. 9. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673..., a Constitution Bench of this Court observed that, in case of doubt, a smaller Bench can invite attention of Chief Justice and request for the matter being placed for hearing before a Bench larger than the one whose decision is being doubted. 39. With the above noted submissions, learned Attorney General for India concluded his address, for the review of the judgments in the Second and Third Judges cases. 40. Mr. K.K. Venugopal, learned senior Counsel, commenced his submissions by highlighting the main features of the Constitution (67th Amendment) Bill, 1990. He invited our attention, to the proposed amendments of Articles 124, 217, 222 and 231, and more particularly, to the insertion of Part XIIIA in the Constitution, under the heading "National Judicial Commission". Article 307A was proposed as the singular Article in Part XIIIA. Based on the constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made. (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India', and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.... Based on the aforesaid compilation, it was contended, that the judgment rendered in the Second Judges case, completely obliterated three salient features of Article 124. Firstly, under the original Article 124, the main voice was that of the President. It was submitted, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y role in the process of appointments. It was highlighted, that under the old system, all the above stakeholders, had an opportunity to make representations to the executive, in the matter of appointments to the higher judiciary. But, that role has now been totally excluded, by the interpretation placed on Article 124, by the Second Judges case. The Court's attention was drawn to conclusion No. 14 drawn in the summary of conclusions (recorded in paragraph 486, in the Second Judges case) that the majority opinion in the First Judges case, insofar as, it had taken a contrary view, relating to primacy of the role of the Chief Justice of India, in matters of appointments and transfers, and the justiciability of these matters, as well as, in relation to judge-strength, did not commend itself as being the correct view. Accordingly it was concluded, that the relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented, in the manner indicated in the conclusions drawn in the Second Judges case. The above determination, according to learned Counsel, was absolutely misconceived, as the same totally negated the effect of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essly ignored, not only the simple language indicating the procedure for appointment of Judges, but also the surrounding constitutional provisions. According to learned senior Counsel, the judiciary had encroached into the executive power of appointment of Judges. This amounted to encroaching into a constitutional power, reserved for the executive, by the Constitution. It was asserted, that the power of amendment of the Constitution, vested in the Parliament Under Article 368, was only aimed at keeping the Constitution in constant repair. It was submitted, that the aforesaid power vested with the Parliament, could not have been exercised by the Supreme Court, by substituting the procedure of appointment of Judges, in the manner the Supreme Court felt. It was submitted, that in the Second Judges case, as also, the Third Judges case, the Supreme Court had violated the "basic structure", by impinging upon legislative power. It was contended, that it was imperative for this Court to have a re-look at the two judgments, so as to determine, whether there had been a trespass by the judiciary, into the legislative domain. And, if this Court arrives at the conclusion, that such was the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s based on the observations recorded in paragraph 10 of the Third Judges case, wherein the statement of the then Attorney General for India, had been recorded, that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case. It was submitted, that the aforesaid statement, could not bar the plea of reconsideration, for all times to come. It was further submitted, that the above statement would not bind the Parliament. It was contended, that the statement to the effect, that the Union of India, was not seeking a review or reconsideration of the Second Judges case, should not be understood to mean, that it was impliedly conceded, that the Second Judges case had been correctly decided. It was pointed out, that the advisory jurisdiction Under Article 143, which had been invoked by the Presidential Reference made on 23.7.1998, requiring this Court to render the Third Judges case, was neither appellate nor revisionary in nature. In this behalf, learned Counsel placed reliance on Re: Cauvery Water Disputes Tribunal 1993 Supp (1) SCC 96(II), wherein it was held, that an order passed by the Supreme Court, could be reviewed only when its jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed necessary for the purpose, was with judges of the Supreme Court and also of the High Courts in the states, as may be felt appropriate. v. There was no limitation on the power, scope and ambit of the President to engage in consultation, he may not only with the judges of the Supreme Court, but may also consult judges of High Courts as he may deem necessary, for this purpose. vi. There was also no limitation on the President's power of consultation. He could consult as many judges of the Supreme Court and High Courts which he deemed necessary for the purpose. vii. Having regard to the object and purpose of the appointment of a judge of the Supreme Court, and that, such appointment was to the highest judicial office in the Republic, was clearly intended to be broad-based, interactive, informative and meaningful, so that, the appointment was made of the most suitable candidate. viii. This aspect of the power of consultation of the President, as had been provided had been completely ignored in the majority judgment in Second Judges' case. And the focus has been confined only to the consultation, with the Chief Justice of India. ix. The interpretation of the consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or constituting a bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength." It was asserted, that there was no scope or occasion for the Bench hearing the Second Judges case, to rewrite the Constitution, on the subject of appointment of Judges to the higher judiciary. It was submitted, that the observations recorded in the Second Judges case, in addition to the above mentioned two issues, were liable to be regarded as obiter dicta. In the Second Judges case, the ratio decidendi, according to learned Counsel, was limited to the declaration of the legal position, only on the two issues, referred to the larger Bench for consideration. Thus viewed, it was asserted, that all other conclusions recorded in the Second Judges case, on issues other than the two questions referred for reconsideration, cannot legitimately be described as binding law Under Article 141. To support the above contention, reliance was placed on Kerala State Science and Technology Museum v. Rambal Co. (2006) 6 SCC 258, wherein this Court held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as an authority even on the facts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "[t]here is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." [Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661, 672] (AIR p. 672, para 15) Since on a re-examination of the question we have come to the conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake." It was pointed out, that in the Second Judges case, S. Ratnavel Pandian, J. had observed as follows: 17. So it falls upon the superior courts in a large measure the responsibility of exploring the ability and potential capacity of the Constitution with a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential feat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice. Based on the above, learned Counsel summarized his assertions as follows. Firstly, the real constitutional question, requiring re-examination, was in the context of appointment of Judges to the higher judiciary, was the interpretation of Article 74. Because the Second Judges case, had made a serious inroad into the power of the President which was bound to be exercised in consonance with Article 74. It was contended, that the functioning of the President, in the absence of the aid and advice of the Council of Ministers, could not just be imagined under the scheme of the Constitution. And therefore, the substitution of the participatory role of the Council of Ministers (or, the Minister concerned), with that of the Chief Justice of India in conjunction with his collegium, was just unthinkable. And secondly, that the First Judges case, was wrongly overruled, and the correct law for appointment of Judges, vis-à-vis the role of the executive, was correctly laid down in the First Judges case, by duly preserving the "independence of the judiciary". It was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter needed to be heard by a larger Bench, placed reliance on Mineral Area Development Authority v. Steel Authority of India (2011) 4 SCC 450, and invited our attention to question No. 5 of the reference made by this Court: 5. Whether the majority decision in State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201] could be read as departing from the law laid down in the seven-Judge Bench decision in India Cement Ltd. v. State of T.N. (1990) 1 SCC 12? It was pointed out, that the above question came to be framed because in State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201, this Court by a majority of 4:1 had clarified the judgment rendered by a seven-Judge Bench of this Court in India Cement Ltd. v. State of Tamil Nadu (1990) 1 SCC 12. This Court had to frame the above question, and refer the matter to a nine-Judge Bench. Learned Counsel, then placed reliance on Sub-Committee of Judicial Accountability v. Union of India (1992) 4 SCC 97, wherein this Court had observed as under: 5. Even if the prayer is examined as if it were an independent substantive proceeding, the tests apposite to such a situation would also not render the grant of this relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving question of constructing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a Court of Appeal. But different considerations must inevitably arise where a previous decision of this Court has tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court. ...The principle of stare decisis, no doubt, cannot be pressed into service in cases where the jurisdiction of this Court to reconsider and revise its earlier decisions is invoked; but nevertheless, the normal principle that judgments pronounced by this Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, this Court should and would be reluctant to review and revise its earlier decisions. That, broadly stated, is the approach which we propose to adopt in dealing with the point made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial. Consequent upon the instant determination by us, the above matter will be liable to be disposed of, in terms of the instant judgment. IV. OBJECTION BY THE PETITIONERS, TO THE MOTION FOR REVIEW: 54. Mr. Fali S. Nariman, disagreed with the suggestion that the controversy in hand, needed to be decided by a larger Bench. It was his pointed submission, that the issue canvassed had been improperly pressed, by overlooking certain salient features, which had necessarily to be taken into consideration, before a prayer for reference to a larger Bench could be agitated. It was submitted, that all the learned Counsel representing the Respondents had overlooked the fact, that the interpretation of Article 124 of the Constitution, was rendered in the first instance, by a seven-Judge Bench in the First Judges case. It was pointed out, that the law declared by this Court in the First Judges case, having been doubted, the matter was referred for reconsideration, before the nine-Judge Bench, which delivered the judgment in the Second Judges case. It was pointed out, that the prayer for revisitation, which is being made at the behest of the learned Counsel representing the Union of India a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, in the Second Judges case, clearly arrived at the conclusion, that the earlier judgment rendered in the First Judges case, did not lay down the correct law. It was submitted, that the legal position had been declared in the Second Judges case, by a majority of 7:2. 56. It was submitted, that the minority view, in the Second Judges case, was expressed by A.M. Ahmadi and M.M. Punchhi, JJ., (as they then were). Learned senior Counsel, referred to the observations recorded in the Second Judges case by M.M. Punchhi, J.: 500. Thus S.P. Gupta case, as I view it, in so far as it goes to permit the Executive trudging the express views of disapproval or non-recommendation made by the Chief Justice of India, and for that matter when appointing a High Court Judge the views of the Chief Justice of the High Court, is an act of impermissible deprival, violating the spirit of the Constitution, which cannot he approved, as it gives an unjust and unwarranted additional power to the Executive, not originally conceived of. Resting of such power with the Executive would be wholly inappropriate and in the nature of arbitrary power. The constitutional provisions conceives, as it does, pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put off the recommendation made by the Chief Justice of India (disapproving the appointment of a person, as a Judge of the High Court) would amount to an act of deprival, "violating the sprit of the Constitution". Inasmuch as, the above demeanour/expression, would give an unjust and unwarranted power to the executive, which was not intended by the framers of the Constitution. The Court went on to hold, that the vesting of such power with the executive, would be wholly inappropriate, and in the nature of arbitrary power. It was also noted, that after this Court rendered its decision in the First Judges case, the Law Minister and the Prime Minister were found to be in such a dominant position, that they could appoint a Judge to the higher judiciary, despite his being disapproved (or, even when he was not recommended at all) by the Chief Justice of India (and likewise, by the Chief Justice of the High Court). Thus, in the view of M.M. Punchhi, J., these details had escaped the notice of the authors of the First Judges case, and corrections were required, in that regard, in the said judgment. Accordingly, it was the contention of the learned senior Counsel, that one of the minority Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue. Reference was also made to the Keshav Mills Company Ltd. case (1965) 2 SCR 908, wherein a seven-Judge Bench of this Court held as under: It must be conceded that the view for which the learned Attorney-General contends is a reasonably possible view, though we must hasten to add that the view which has been taken by this Court in its earlier decisions is also reasonably possible. The said earlier view has been followed by this Court on several occasions and has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New Jehangir Mills, (1960) 1 SCR 249, was pronounced on May 12, 1959. Besides, it is somewhat remarkable that no reported decision has been cited before us where the question about the construction of Section 66(4) was considered and decided in favour of the Attorney-General's contention. Having carefully weighed the pros and cons of the controversy wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go back upon its previous ruling, particularly on a constitutional issue." (See: Lt. Col. Khajoor Singh v. The Union of India (1961) 2 SCR 828). In Keshav Mills Company Ltd. v. CIT (1965) 2 SCR 908, it has been observed: (SCR pp. 921-22) ...but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. xxx 30. Having regard to the observations referred to above and the stand of the parties during the course of arguments before us, we do not consider it appropriate to reopen the issues which are covered by the decision in Builders' Association case.... Having referred to the above judgments, it was submitted, that it was clearly misconceived for the learned Counsel for the Respondents, to seek a reference of the controversy, to a larger Bench for the re-examination of the decisions rendered by this Court in the Second and Third Judges cases. 59. Yet another basis for asserting, that the prayer made at the behest of the learned Counsel representing the Respondents for revisiting the judgments rendered by this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted by the Government because the power Under Article 222 cannot be exercised whimsically or arbitrarily. In the case of Chandramouleshwar Prasad v. Patna High Court (1969) 3 SCC 36, while interpreting the word "consultation" as appearing in Article 233 of the Constitution this Court observed as follows: Consultation with the High Court Under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion....We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the prosper the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. In Samsher Singh's case AIR 1974 SC 2192, one of us has struck the same chord. It must also be borne in mind that if the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441-rendered by a nine-Judge Bench, and (v) Re: Special Reference No. 1 of 1998 (1998) 7 SCC 739-rendered by a nine-Judge Bench. This Court on no less than five occasions, has examined the controversy which we are presently dealing with, through Constitution Benches. In the Samsher Singh case: (1974) 2 SCC 831, it was concluded, that in all conceivable cases, consultation with the highest dignitary in the Indian judiciary-the Chief Justice of India, will and should be accepted by the Government of India, in matters relatable to the Chapters and Parts of the Constitution referred to above. In case, it was not so accepted, the Court would have an opportunity to examine, whether any other extraneous circumstances had entered into the verdict of the concerned Minister or the Council of Ministers (headed by the Prime Minister), whose views had prevailed in ignoring the counsel given by the Chief Justice of India. This Court accordingly concluded, that in practice, the last word must belong to the Chief Justice of India. The above position was also further clarified, that rejection of the advice tendered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 124, 217 and 222 had to be read as vesting primacy with the opinion expressed by the Chief Justice of India, based on a participatory consultative process. In other words, in matters involving Articles 124, 217 and 222, primacy with reference to the ultimate power of appointment (or transfer) was held, to be vesting with the judiciary. The above position came to be reconsidered in the Third Judges case, by a nine-Judge Bench, wherein the then learned Attorney General for India, made a statement, that the Union of India was not seeking a review, or reconsideration of the judgment in the Second Judges case, and further, that the Union of India had accepted the said judgment, and would treat the decision of this Court in the Second Judges case as binding. It is therefore apparent, that the judiciary would have primacy in matters regulated by Articles 124, 217 and 222, was conceded, by the Union of India, in the Third Judges case. 61. We have also delineated hereinabove, the views of the Judges recorded in the First Judges case, which was rendered by a majority of 4:3. Not only, that the margin was extremely narrow, but also, the views expressed by the Judges were at substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents, for a re-look or review of the judgments rendered in the Second and Third Judges cases. All the same, as we have indicated at the beginning of this order, because the matter is of extreme importance and sensitivity, we will still examine the merits of the submissions advanced by learned Counsel. II. 63. The most forceful submission advanced by the learned Attorney General, was premised on the Constituent Assembly debates. In this behalf, our attention was invited to the views expressed by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar and Dr. B.R. Ambedkar. It was pointed out by the learned Attorney General, that the Members of the Constituent Assembly feared, that the process of selection and appointment of Judges to the higher judiciary should not be exclusively vested with the judiciary. The process of appointment of Judges by Judges, it was contended, was described as Imperium in Imperio, during the Constituent Assembly debates. In responding to the above observations, Dr. B.R. Ambedkar while referring to the contents of Article 122 (which was renumbered as Article 124 in the Constitution), had assured the Members of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked with the obligation to provide details about the individual's character and antecedents. Our analysis of the Memorandum of Procedure reveals, that the same contemplates inter alia the following steps for selection of High Court Judges: Step 1: The Chief Justice of the concerned High Court has the responsibility of communicating, to the Chief Minister of the State concerned, names of persons to be selected for appointment. Details are furnished to the Chief Minister, in terms of the format appended to the memorandum. Additionally, if the Chief Minister desires to recommend name(s) of person(s) for such appointment, he must forward the same to the Chief Justice for his consideration. Step 2: Before forwarding his recommendations to the Chief Minister, the Chief Justice must consult his senior colleagues comprised in the High Court collegium, regarding the suitability of the names proposed. The entire consultation must be in writing, and these opinions must be sent to the Chief Minister along with the Chief Justice's recommendation. Step 3: Copies of recommendations made by the Chief Justice of the High Court, to the Chief Minister of the concerned State, require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment are forwarded to the Chief Minister and the Governor of the concerned State. On receipt of the names, the Chief Minister discharges the onerous responsibility to determine the suitability of the recommended candidate(s). Specially the suitability of the candidate(s), pertaining to integrity, social behaviour, political involvement and the like. Needless to mention, that the Chief Minister of the concerned State, has adequate machinery for providing such inputs. It would also be relevant to mention, that the consideration at the hands of the Governor of the concerned State, is also not an empty formality. For it is the Governor, through whom the file processed by the Chief Minister, is forwarded to the Union Minister for Law and Justice. There have been occasions, when Governors of the concerned State, have recorded their own impressions on the suitability of a recommended candidate, in sharp contrast with the opinion expressed by the Chief Minister. Whether or not the Governors participate in the above exercise, is quite a separate matter. All that needs to be recorded is, that there are instances where Governors have actively participated in the process of selection of Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for us to delineate the participation of the judiciary in the process of selection and appointment of Judges to the High Courts. The same is apparent from the steps contemplated in the Memorandum of Procedure, as have been recorded above. Suffice it to state, that it does not lie in the mouth of the Respondents to contend, that there is no executive participation in the process of selection and appointment of Judges to High Courts. 71. The Memorandum of Procedure, for selection of Supreme Court Judges, provides for a similar participatory role to the judiciary and the political-executive. The same is not being analysed herein, for reasons of brevity. Suffice it to state, that the same is also a joint exercise, with a similar approach. 72. For the reasons recorded by us hereinabove, it is not possible for us to accept, that in the procedure contemplated under the Second and Third Judges cases, Judges at their own select Judges to the higher judiciary, or that, the system of Imperium in Imperio has been created for appointment of Judges to the higher judiciary. It is also not possible for us to accept, that the judgment in the Second Judges case, has interfered with the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly debate. And therefore, the contention advanced on behalf of the Respondents was, that this Court had interpreted the above provisions, by turning the Constituent Assembly's intent and resolve, on its head. It was submitted, that the erroneous interpretation recorded in the Second Judges case, was writ large, even on a cursory examination of the debates. 75. We are of the view, that it would suffice, for examining the above contention, to extract herein a relevant part of the response of Dr. B.R. Ambedkar, to the above noted amendments, in the provisions noted above: Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the Judges of the Supreme Court to be appointed? Now, grouping the different amendments which are related to this particular matter, I find three different proposals. The first proposal is that the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. That is one view. The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and the thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition. The first paragraph extracted hereinabove reveals, that there were three proposals on the issue of appointment of Judges to the Supreme Court. The first proposal was, that the Judges of the Supreme Court should not be appointed by the President in "consultation" with the Chief Justice of India, but should be appointed with the "concurrence" of the Chief Justice of India. The second proposal was, that like in the United States, appointments of Judges to the Supreme Court, should be made by the President, subject to confirmation by the Parliament, through a two-thirds majority. The third proposal was, that Judges of the Supreme Court, should be appointed by the President in "consultation" with the Rajya Sabha. 76. The response of Dr. B.R. Ambedkar to all the suggestions needs a very close examination, inasmuch as, even though rightfully pointed out by the At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges to the Supreme Court, to be made by the President-the executive (i.e., on the aid and advice of the Council of Ministers, headed by the Prime Minister). In the words of Dr. B.R. Ambedkar, it would be dangerous to leave such appointments in the hands of the executive of the day, without any kind of reservation and limitation. We are therefore satisfied, that the word "consultation" expressed in Articles 124 and 217, was contemplated by the Constituent Assembly, to curtail the free will of the executive. If that was the true intent, the word "consultation" could never be assigned its ordinary dictionary meaning. And Article 124 (or Article 217) could never be meant to be read with Article 74. It is therefore not possible for us to accept, that the main voice in the matter of selection and appointment of Judges to the higher judiciary was that of the President (expressed in the manner contemplated Under Article 74). Nor is it possible to accept that primacy in the instant matter rested with the executive. Nor that, the judiciary has been assigned a role in the matter, which was not contemplated by the provisions of the Constitution. It is misconceived for the Respondents to assert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judiciary". The process contemplated for appointment of Judges, would therefore have to be understood, to be such, as would be guarded/shielded from political pressure and political considerations. 80. The paragraph following the one, that has been interpreted in the foregoing paragraphs, also leaves no room for any doubt, that the Constituent Assembly did not desire to confer the Chief Justice of India, with a veto power to make appointments of Judges. It is therefore that a consultative process was contemplated Under Article 124, as it was originally drafted. The same mandated consultation not only with the Chief Justice of India, but with other Judges of the Supreme Court and the High Courts. Viewed closely, the judgments in the Second and Third Judges cases, were rendered in a manner as would give complete effect to the observations made by Dr. B.R. Ambedkar with reference to Article 124 (as originally incorporated). It is clearly erroneous for the Respondents to contend, that the consultative process postulated between the President with the other Judges of the Supreme Court or the High Courts in the States, at the discretion of the President, had been done away with by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he advice of the most competent, dependable and eminent person who could guide us in this matter. Similarly, Sir, so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except one, i.e., 210 out of 211 were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by Government had the support of all persons who were connected with this matter. As Hon. Members are aware, under, I think, Article 217, the Chief Justice of the High Court; the Chief Minister of the State concerned and the Governor first deal with these matters. Then they come to the Home Ministry and are referred by the Ministry to the Chief Justice of India and whatever suggestions or comments he makes are taken into consideration and if necessary, a reference is again made to the Chief Minister and the High Court. But as I said, these 196 appointments were made in accordance with the unanimous advice of the Chief Justice of the High Court, the Chief Minister of the State, the Governor and the Chief Justice of India.... The remarks made by Ashoke Kumar Sen, the then Union Law Minister on 25.11.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he practice adopted on the issue in hand, came to be so understood, in the Samsher Singh case (1974) 2 SCC 831, wherein this Court through a seven-Judge Bench held as under: In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds. The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India. From the above extract, it is apparent, that the observations recorded by this Court in paragraph 149 in the Samsher Singh case (1974) 2 SCC 831, were endorsed in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193, and were also adopted in the First Judges case. The position came to be expressed emphatically in the Second and Third Judges cases, by reading the term "consultation" as vesting primacy with the judiciary, in the matter of appointments of Judges to the higher judiciary. This time around, at the hands of two different nine-Judge Benches, which reiterated the position expressed in the Samsher Singh case (197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy in the matter of appointment of Judges to the higher judiciary, must rest with the judiciary. The above position was maintained in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193 in 1977, by a five-Judge Bench, only to be altered in the First Judges case, by a seven-Judge Bench in 1981, wherein it was held, that the term "consultation" could not be read as "concurrence". The position expounded even in this case by P.N. Bhagwati, J. (as he then was), extracted above, must necessarily also be kept in mind. The earlier position was restored in 1993 by a nine-Judge Bench in the Second Judges case (which overruled the First Judges case). The position was again reaffirmed by a nine-Judge Bench, through the Third Judges case. Historically, therefore, all the three wings of governance, have uniformally maintained, that while making appointments of Judges to the higher judiciary, "independence of the judiciary" was accepted as an integral component of the spirit of the Constitution, and thereby, the term "consultation" used in the provisions under consideration, had to be understood as vesting primacy with the judiciary, with reference to the subjects contemplated Under Articles 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggested the period of three years or some other period, my first reaction would have been that this period is too long. Why should we wait so long for this? It might be brought about, if not all over India, in a large part of India, much sooner than that. At the same time, it is obvious that India at the present moment, specially during the transitional period, is a very mixed country politically, judicially, economically and in many ways, and any fixed rule of thumb to be applied to every area may be disadvantageous and difficult in regard to certain areas. On the one hand, that rule will really prevent progress in one area, and on the other hand, it may upset the apple-cart in some other area. Therefore, a certain flexibility is desirable. Generally speaking, I would have said that in any such directive of policy, it may not be legal, but any directive of policy in a Constitution must have a powerful effect. In any such directive, there should not be any detail or time-limit etc. It is a directive of what the State wants, and your putting in any kind of time-limit therefore rather lowers it from that high status of a State policy and brings it down to the level of a legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put in the forefront of its programme. Later on, not only politicians of all schools of thought, but even retired officers who had actually spent their lives in the administration, took up the matter and lent their support to it. I very well remember the Lucknow Congress of 1899 when Romesh Chunder Dutt, who had just retired from the Indian Civil Service, presided. He devoted a large part of his presidential address to this subject and created a good deal of enthusiasm for it. Not only that: even retired High Court Judges and Englishmen like Sir Arthur Hobhouse and Sir Arthur Wilson, both of whom subsequently became members of the Judicial Committee of the Privy Council, lent their support to this and they jointly with many eminent Indians submitted a representation to the Secretary of State for India to give immediate effect to this reform. In the year 1912, when the Public Service Commission was appointed, Mr. Abdur Rahim, who was a Judge of the Madras High Court and was for many years the President of the Central Legislature, appended a long Minute of Dissent and therein he devoted several pages to this question. Therefore, Sir, the matter has been before the country for near ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ventually the matter went up to the High Court and the Chief Justice of the Calcutta High Court made very strong remarks about this matter. Again in the Punjab, a case has recently occurred in which a Judge of the High Court, Mr. Justice Achu Ram, heard a habeas corpus petition and delivered a judgment of 164 pages at the conclusion of which he observed that the action taken by the District Magistrate and the Superintendent of Police against a member of the Congress Party was mala fide and was the result of a personal vendetta. These were his remarks. In these circumstances, I submit that with the change of circumstances and with the advent of freedom and the introduction of democracy, it has become all the more necessary to bring about the separation of the judiciary from the executive at the earliest possible opportunity. 88. A perusal of the statements made before the Constituent Assembly, which resulted in the adoption of Article 50 of the Constitution reveals, that the first Prime Minister of this country, was entirely in favour of the separation of judicial and executive "functions". On the subject of separation, it was pointed out, that it was a directive which the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be kept apart, and separate, from the executive. This Court having concluded, that the principle of "separation of powers" was expressly ingrained in the Constitution, which removes the executive from any role in the judiciary, the right of the executive to have the final word in the appointment of Judges to the higher judiciary, was clearly ruled out. And therefore, this Court on a harmonious construction of the provisions of the Constitution, in the Second and Third Judges cases, rightfully held, that primacy in the above matter, vested with the judiciary, leading to the inference, that the term "consultation" in the provisions under reference, should be understood as giving primacy to the view expressed by the judiciary, through the Chief Justice of India. VI. 90. It is imperative to deal with another important submission advanced by the learned Attorney General, namely, that the issue of "independence of the judiciary" has nothing to do with the process of "appointment" of Judges to the higher judiciary. It was submitted, that the question of independence of a Judge arises, only after a Judge has been appointed (to the higher judiciary), for it is only then, that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Judiciary" separately deals with appointment of Judges. The position expressed in the above statement with reference to "appointment" of Judges is extracted hereunder: Appointment of Judges 11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence. 12. The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed. 13. In the selection of judges there must no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, expect that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory. 14. The structure of the legal profession, and the sources from which judges are drawn within the legal profession, differ in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent judiciary when the power of appointment of judges vests in the executive? To say yes, would be illogical.... From the above it is clear, that the issue canvassed by the learned Attorney General, was finally answered by the nine-Judge Bench, which disposed of the Second Judges case by holding, that if the power of "appointment" of Judges, was left to the executive, the same would breach the principle of the "independence of the judiciary". And also conversely, that providing safeguards after the appointment of a Judge to the higher judiciary, would not be sufficient to secure "independence of the judiciary". In the above view of the matter, it is necessary to conclude, that the "manner of selection and appointment" of Judges to the higher judiciary, is an integral component of "independence of the judiciary". The contentions advanced on behalf of the Union of India, indicating the participation of the President and the Parliament, in the affairs of the judiciary, would have no bearing on the controversy in hand, which primarily relates to the issue of "appointment" of Judges to the higher judiciary. And, extends to transfer of Chief Justices and Judges from one High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hairman and other Members of the Union Public Service Commission, is also vested with the President Under Article 316. The aforesaid appointment also does not contemplate any deliberation, with any other authority. Under Article 324, the power of appointment of Chief Election Commissioner and Election Commissioners is vested with the President exclusively. Likewise, is the case of appointment of Chairperson, Vice-Chairperson and Members of the National Commission for Scheduled Castes Under Article 338, and Chairperson, Vice-Chairperson and other Members of the National Commission for Scheduled Tribes Under Article 338A. Under the above stated provisions, the President has the exclusive authority to make appointments, without any deliberation with any other authority. Under Article 344, the President is also vested with the authority to appoint Chairman and other Members to the Commission of Parliament on Official Languages. The instant provision also does not provide for any consultative process before such appointment. The same position emerges from Article 350B, whereunder the President is to appoint a Special Officer for Linguistic Minorities. Herein too, there is no contemplati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and advice" tendered to him, by the Council of Ministers headed by the Prime Minister. The instant amendment, in our view, has to be considered as clarificatory in character, merely reiterating the manner in which the original provision ought to have been understood. 98. If "aid and advice" can be binding and mandatory, surely also, the term "consultation", referred to in Articles 124 and 217, could lead to the same exposition. The President of India, being the first citizen of the country, is entitled to respectability. Articles 124 and 217, were undoubtedly couched in polite language, as a matter of constitutional courtesy, extended to the first citizen of the country. It is important to notice, that the first proviso Under Article 124(2) clearly mandates, that the Chief Justice of India "shall always" be consulted. It was a reverse obligation, distinguishable from Article 74. Herein, the President was obliged to consult the Chief Justice of India, in all matters of appointment of Judges to the Supreme Court. The process of "consultation" contemplated therein, has to be meaningfully understood. If it was not to be so, the above provision could have been similarly worded as those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and acknowledge the submission made by the learned Attorney General, as has been noticed hereinabove, but only limited to situations of appointment contemplated under various Articles of the Constitution, where the power of appointment is exclusively vested with the President. As such, there is no room for any doubt that the provisions of the Constitution, with reference to the appointment of Judges to the higher judiciary, contemplated that the "aid and advice" (-the "consultation") tendered by the Chief Justice of India, was entitled to primacy, on matters regulated Under Articles 124 and 217 (as also, Under Article 222). VIII. 100. In continuation with the conclusions drawn in the foregoing analysis, the matter can be examined from another perspective as well. The term "consultation" (in connection with, appointments of Judges to the higher judiciary) has also been adopted in Article 233 on the subject of appointment of District Judges. Under Article 233, the power of appointment is vested with the Governor of the concerned State, who is empowered to make appointments (including promotions) of District Judges. This Court, through a five-Judge Bench, in Registrar (Admn.), Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be adverted to as the "Recusal Order". The second order, considered the prayer made by the learned Attorney General and some learned Counsel representing the Respondents, seeking a "reference" of the present controversy, to a nine-Judge Bench (or even, to a further larger Bench) for re-examining the judgment rendered in Supreme Court Advocates-on-Record Association v. Union of India 3 (1993) 4 SCC 441 (hereinafter referred to as, the Second Judges case), and the advisory opinion in Re: Special Reference No. 1 of 1998 (1998) 7 SCC 739 (hereinafter referred to, as the Third Judges case), for the alleged object of restoring and re-establishing, the declaration of the legal position, expounded by this Court in S.P. Gupta v. Union of India 1981 (Supp) SCC 87 (hereinafter referred to as, the First Judges case). As and when a reference is made to the above second order, it would be mentioned as the "Reference Order". 4. We would, therefore, not examine the issues dealt with in the Recusal Order and/or in the Reference Order, even though they may arise for consideration yet again, in the process of disposal of the present controversy on merits. As and when a reference is made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and Clause (5) could not remove the doubt which did not exist. What Clause (5), really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put the Judges of the Supreme Court "above executive control". Paragraph 4 of the said Report is being extracted hereunder: (Appointment and removal of Judges) 4. Realizing the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity. Thus has the Constitution endeavoured to put Judges of the Supreme Court above executive control. 8. It was submitted, that "independence of the judiciary" had been held to mean and include, insulation of the higher judiciary from executive and legislative control. In this behalf, reference was made to Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193, wherein this Court had observed: "50. Now the independence of the judiciary is a fighting faith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union of India and the States would become the largest single litigants before the Supreme Court and the High Courts. Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab (1974) 2 SCC 831, can become "fearless and free only if institutional immunity and autonomy are guaranteed". The Constitution-makers, therefore, enacted several provisions designed to secure the independence of the superior judiciary by insulating it from executive or legislative control. I shall briefly refer to these provisions to show how great was the anxiety of the constitution-makers to ensure the independence of the superior judiciary and with what meticulous care they made provisions to that end. In continuation of the instant submission, learned Counsel placed reliance on the Second Judges case, and drew our attention to the following observations recorded by S. Ratnavel Pandian, J.: "54. Having regard to the importance of this concept the Framers of our Constitution having before them the views of the Federal Court and of the High Court have said in a memorandum: We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Independence of Judiciary' is the basic feature of our Constitution and if it means what we have discussed above, then the Framers of the Constitution could have never intended to give this power to the executive. Even otherwise the Governments-Central or the State-are parties before the Courts in large number of cases. The Union Executive have vital interests in various important matters which come for adjudication before the Apex Court. The executive-in one form or the other-is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator-between the people and the executive-the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. This Court in S.P. Gupta v. Union of India 1981 Supp SCC 87 proceeded on the assumption that the independence of judiciary is the basic feature of the Constitution but failed to appreciate that the interpretation, it gave, was not in conformity with broader facets of the two concepts-'independence of judiciary' and 'judicial review'-which are interlinked. Based on the above conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts, in the hands of any individual howsoever high he is placed in the constitutional hierarchy. Collective wisdom of the consultees is the sine qua non for such appointments. Dr. B.R. Ambedkar in his speech dated May 24, 1949 in the Constituent Assembly explaining the scope of the draft articles pertaining to the appointment of Judges to the Supreme Court.... xxx 392. Dr. Ambedkar did not see any difficulty in the smooth operation of the constitutional provisions concerning the appointment of Judges to the superior Courts. Having entrusted the work to high constitutional functionaries the Framers of the Constitution felt assured that such appointments would always be made by consensus. It is the functioning of the Constitution during the past more than four decades which has brought the necessity of considering the question of primacy in the matter of such appointments. Once we hold that the primacy lies with the judiciary, then it is the judiciary as collectivity which has the primal say and not any individual, not even the Chief Justice of India. If we interpret the expression "the Chief Justice of India" as a "persona designata" then it would amount "to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of India; and it is this opinion which has primacy. 468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appointment to be made, it has to be "in conformity with the final opinion of the Chief Justice of India formed in the manner indicated". It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon. 11. Learned Counsel invited the Court's attention, to the third conclusion drawn in Madras Bar Association v. Union of India (2014) 10 SCC 1, which is placed below: 136. (iii) The "basic structure" of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted. Learned Counsel then asserted, that the "basic structure" of the Constitution would stand violated if, in amending the Constitution and/or enacting legislation, Parliament does not ensure, that the body newly created, conformed with the salient characteristics and the standards of the body sought to be substituted. It was asserted, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, whether the NJAC now set up, had the same or similar characteristics, in the matter of appointments/transfers, which would preserve the "independence of the judiciary"? Answering the query, learned Counsel was emphatic, that the primacy of the judiciary, had been totally eroded through the impugned constitutional amendment. For the above, learned Counsel invited our attention to Article 124A inserted by the Constitution (99th Amendment) Act. It was submitted, that the NJAC contemplated Under Article 124A would comprise of six Members, namely, the Chief Justice of India, two senior Judges of the Supreme Court (next to the Chief Justice), the Union Minister in charge of Law and Justice, and two "eminent persons". It was submitted, that the judges component, which had the primacy (and in a manner of understanding-unanimity), under the erstwhile procedure, had now been reduced to half-strength, in the selecting body-the NJAC. It was pointed out, that the Chief Justice of India, would now have an equivalent voting right, as the other Members of the NJAC. It was submitted, that even though the Chief Justice of India would be the Chairman of the NJAC, he has no casting vote, in the eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re", and the scope of amending the provisions of the Constitution. Dwelling upon the power of Parliament to amend the Constitution, it was submitted, that this Court in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, had declared, that the "basic structure" of the Constitution, was not susceptible or amenable to amendment. Inviting our attention to Article 368, it was submitted, that the power vested with the Parliament to amend the Constitution, contemplated the extension of the constituent power, which was exercised by the Constituent Assembly, while framing the Constitution. It was pointed out, that in exercise of the above power, the Parliament had been permitted to discharge the same role as the Constituent Assembly. The provisions of the Constitution, it was asserted, could be amended, to keep pace with developments in the civil society, so long as the amendment was not in violation of the "basic structure" of the Constitution. It was submitted, that it was not enough, in the facts and circumstances of the present case, to determine the validity of the constitutional amendment in question, by limiting the examination to a determination, whether or not the "independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment Under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment Under Article 368. Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power. This is how the Constitution becomes dynamic. Law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an ongoing process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution. On every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot required to merely "consult" the Chief Justice of India, but the executive was to accede to the view expressed by the Chief Justice of India. Insofar as the term "Chief Justice of India" is concerned, it was submitted, that the same had also been understood to mean, not the individual opinion of the Chief Justice of India, but the opinion of the judiciary symbolized through the Chief Justice of India. Accordingly, it was emphasized, that the individual opinion of the Chief Justice (with reference to Articles 124 and 217) was understood as the institutional opinion of the judiciary. Accordingly, whilst examining the impugned constitutional amendment, under the width and the identity test(s), the above declared legal position, had to be kept in mind while determining, whether or not the impugned constitutional amendment, and the impugned legislative enactment, had breached the "basic structure" of the Constitution. 18. It was contended, that the judgment in the Second Judges case, should be accepted as the touchstone, by which the validity of the impugned constitutional amendment (and the NJAC Act), must be examined. It was submitted, that the power exercised by the Parliament Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Article 124, it was pointed out, as it existed prior to the impugned amendment, had provided for a system of trusteeship, wherein institutional predominance of the judiciary was the hallmark. It was submitted, that the aforesaid trusteeship should not be permitted to be shared by those, whose rival claims arose for consideration before Courts of law. The judicial responsibility in the matter of appointment of Judges, according to learned Counsel, being the most important trusteeship, could not be permitted to be shared, with either the executive or the legislature. 21. Referring to the amendment itself, it was contended, that merely changing the basis of the legislation, would not be the correct test to evaluate the actions of the Parliament, in the present controversy. It was likewise submitted, that reasonableness and proportionality were also not the correct test(s) to be applied. According to learned Counsel, in order to determine the validity of the impugned constitutional amendment (and the NJAC Act), the Union of India and the ratifying States will have to bear the onus of satisfactorily establishing, that the amended provisions, could under no circumstances, be us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending power of Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure. xxx 30. Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance. xxx 35. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from Clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word "amendment" connotes change. The question is--whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the Petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would not per se violate the "basic structure" of the Constitution. 135. (ii) Recognised constitutional conventions pertaining to the Westminster model do not debar the legislating authority from enacting legislation to vest adjudicatory functions earlier vested in a superior court with an alternative court/tribunal. Exercise of such power by Parliament would per se not violate any constitutional convention. 136. (iii) The "basic structure" of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted. 137. (iv) Constitutional conventions pertaining to the Constitutions styled on the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created. 138. (v) The prayer made in Writ Petition (C) No. 621 of 2007 is declined. Company Secretaries are held ineligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed that concept cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Indeed, the distinguished Judges of this Court, as pointed out earlier, in various decisions have referred to Article 50 while discussing the concept of independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values underlying Article 50 in safeguarding the independence of the judiciary. xxx 85. Regrettably, there are some intractable problems concerned with judicial administration starting from the initial stage of selection of candidates to man the Supreme Court and the High Courts leading to the present malaise. Therefore, it has become inevitable that effective steps have to be taken to improve or retrieve the situation. After taking note of these problems and realising the devastating consequences that may flow, one cannot be a silent spectator or an old inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simply held that consultation with the CJI under the first proviso to Article 124(2) as well as Under Article 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate. xxx 181. It cannot be gainsaid that the CJI being the head of the Indian Judiciary and paterfamilias of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary and he in that capacity evaluates the merit of the candidate with regard to his/her professional attainments, legal ability etc. and offers his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a superimposition test under the guise of overguarding the judiciary. xxx 183. One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive or other services. In a recent judgment in All India Judges' Association v. Union of India: (1993) 4 SCC 288... rendered by a three-Judge Bench presided over by M.N. Venkatachaliah, C.J. and consisting of A.M. Ahmadi and P.B. Sawant, JJ., the following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of the President to appoint the Judges to the superior courts. xxx (4) The context in which the expression "shall always be consulted" used in the first proviso of Article 124(2) and the expression "shall be appointed ... after consultation" deployed in Article 217(1) denote the mandatory character of 'consultation', which has to be and is of a binding character. (5) Articles 124 and 217 do not speak in specific terms requiring the President to consult the executive as such, but the executive comes into play in the process of appointment of Judges to the higher echelons of judicial service by the operation of Articles 74 and 163 of the Constitution. In other words, in the case of appointment of Judges, the President is not obliged to consult the executive as there is no specific provision for such consultation. (6) The President is constitutionally obliged to consult the CJI alone in the case of appointment of a Judge to the Supreme Court as per the mandatory proviso to Article 124(2) and in the case of appointment of a Judge to the High Court, the President is obliged to consult the CJI and the Governor of the State and in addition the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han other Judges in any other nations, and the resultant triumph of the Indian judiciary are highly commendable. But it does not mean that the present system should continue for ever, and by allowing the executive to enjoy the absolute primacy in the matter of appointment of Judges as its 'royal privilege'. 208. The polemics of the learned Attorney-General and Mr. Parasaran for sustaining the view expressed in Gupta case 1981 Supp SCC 87... though so distinguished for the strength of their ratiocination, is found to be not acceptable and falls through for all the reasons aforementioned because of the inherent weakness of the doctrine which they have attempted to defend. Insofar as the minority judgment authored by A.M. Ahmadi, J., (as he then was) is concerned, it is only relevant to highlight the first conclusion recorded in paragraph 313, which is reproduced hereunder: 313. We conclude: (i) The concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50 illuminates it. The degree of independence is near total after a person is appointed and inducted in the judicial family.... 143. Insofar as the instant aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons for appointment and such other matters as may be considered necessary. 5. The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts. 6. The Bill seeks to achieve the above objectives. Ravi Shankar Prasad New Delhi; The 8th August, 2014. Based on the non-disclosure of reasons, why the existing procedure was perceived as unsuitable, it was contended, that the only object sought to be achieved was, to dilute the primacy, earlier vested with the Chief Justice of India (based on a decision of a collegium of Judges), provided for Under Articles 124 and 217, as originally enacted. This had been done away, it was pointed out, by substituting the Chief Justice of India, with the NJAC. 25. The primary submission advanced at the hands of Mr. Fali S. Nariman, Senior Advocate, was with reference to the violation of the "basic structure", not only through the Constitution (99th Amendment) Act, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to determine the age of a Judge finally. In that case the Ministry of Home Affairs went through the exercise prescribed in Article 217(3). "The then Home Minister wrote to the Chief Minister, West Bengal, that he had consulted the Chief Justice of India, and he agreed with the advice given to him by the Chief Justice, and so he had decided that the date of birth of the Appellant was....It is this decision which was, in due course communicated to the Appellant". When the said decision was attacked as one reached by the Home Minister only and not by the President personally, the Court observed: The alternative stand which the Appellant took was that the Executive was not entitled to determine his age, and it must be remembered that this stand was taken before Article 217(3) was inserted in the Constitution; the Appellant was undoubtedly justified in contending that the Executive was not competent to determine the question about his age because that is a matter which would have to be tried normally, in judicial proceedings instituted before High Courts of competent jurisdiction. There is considerable force in the plea which the Appellant took at the initial stages of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess only if, institutional immunity was assured, and institutional autonomy was guaranteed. The view expressed in the Samsher Singh case (1974) 2 SCC 831 in 1974 was, that the final authority in the matter of appointment of Judges to the higher judiciary, rested with the Chief Justice of India. It was pointed out, that the above position had held the field, ever since. It was submitted, that "independence of the judiciary" has always meant and included independence in the matter of appointment of Judges to the higher judiciary. 28. Mr. Arvind P. Datar, learned Senior Advocate contended, that the NJAC had been created by an amendment to the Constitution. It therefore was a creature of the Constitution. Power had been vested with the NJAC to make recommendations of persons for appointment as Judges to the higher judiciary, including the power to transfer Chief Justices and Judges of High Courts, from one High Court to another. The above constitutional authority, it was submitted, must be regulated by a constitutional scheme, which must flow from the provisions of the Constitution itself. Therefore, it was asserted, that the manner of functioning of the NJAC must be contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Chief Justice of India. The Commission to make recommendations with respect to the appointment of the Judges of the High Courts will consist of the Chief Justice of India, one senior-most Judge of the Supreme Court, the Chief Minister of the State concerned, Chief Justice of the concerned High Court and one senior-most Judge of that High Court. 3. The Bill seeks to achieve the above object. NEW DELHI; The 11th May, 1990; The proposed National Judicial Commission in the above Bill, was to be made a component of Part XIIIA of the Constitution, by including therein Article 307A. The Chief Justice of India, and the next two senior most Judges of the Supreme Court, were proposed to comprise of the contemplated Commission, for making appointments of Judges to the Supreme Court, Chief Justices and Judges to High Courts, and for transfer of High Court Judges from one High Court to another. The above Commission, omitted any executive and legislative participation. The proposed composition of the Commission, for appointing High Court Judges, included the Chief Justice of India, the Chief Minister or the Governor of the concerned State, the senior most Judge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The rest of the business we should pass today. Thank you. Shri Ram Jethmalali: Madam, thank you; better late than never. Sir, I wish to make two preliminary suggestions. If there is an assurance that the Constitution (Amendment) Bill as well as the subsidiary Bill will both be referred to a Select Committee of Parliament, I do not propose to address this House at all. But, I do not consider it suitable or proper that only the second Bill should be referred to a Select Committee. Both should be sent. And, I will give my reasons. Sir, the second suggestion that I have to make is this. My main contention, which I am going to make, is that the Constitution (Amendment) Bill is wholly unconstitutional and, if passed, it will undoubtedly be set aside by the Supreme Court, because it interferes with the basic feature of the Constitution. Such amendments of the Constitution are outside the jurisdiction of this House. The amendment process prescribed by the Constitution requires 2/3rd majority and so on and so forth. That applies only to those amendments of the Constitution which do not touch what are called the basic features of the Constitution as understood in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir, we argued before the Supreme Court that this article does not mean that Judges and Ministers should not socially meet. This does not mean that they should live in separate towns, or that they should not live even in adjoining bungalows. The purpose of this article is to ensure that in the appointment of Judges, the Executive has no role to play, except the advisory role. In other words, the doctrine of primacy of the Executive in the appointment process was irksome to us because the whole nation of India has been the victim of the Judges appointed in the earlier system. I have been a refugee from my own country during the Emergency. Why was it? It was because four Supreme Court Judges-I am not talking of the fifth who earned the New York Times praise that the Indian nation will have to build a monument to his memory; I am talking of the other four who-disgraced the Judiciary, disgraced the Supreme Court and were parties to the destruction of Indian democracy and the demolition and the debasement of the whole Constitution of India. Sir, of which system were they the product? They were the product of that system which, in 1981, was ultimately supported by the Gupta judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survive, citizens' human rights cannot survive, no development can take place unless, of course, the judges are independent first of the Executive power because don't forget that every citizen has a grievance against the corrupt members of the Executive, or, errant bureaucracy, public officers misusing power, indulging in corruption, making wrong and illegal orders. The citizen goes to the court, knocks the door of the court and says, "Please give me a mandamus against this corrupt official, against this corrupt Minister". And, Sir, the judges are supposed to decide upon the claims of the poorest who go to the Supreme Court...... (Interruptions)......and to the judges. It may be, and I am conscious...... (Interruptions)... Sir, this is not a laughing matter. Please listen, and then decide for yourself.... xxx Sir, first of all, let me say this now that the whole judgment of nine Judges is based upon this principle that in the appointment process, the Executive can never have primacy. This is principle number one. It has now become the basic feature of India's Constitution. My grievance today against this Constitution (Amendment) Bill is that you are slo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go wrong. But a great Bar can control them.... xxx Sir, I hope, people will avoid this kind of a tragedy in the life of this country. You are today digging the grave of the Constitution of India and the freedom of this country....(Interruptions)... That's all I wished to say....(Interruptions).... It was submitted, that in the Rajya Sabha 131 votes were cast in affirmation of the proposed Bill, as against the solitary vote of the learned Counsel, against the same on 5.9.2013. It was however pointed out, that the effort did not bear fruit, on account of the intervening declaration for elections to the Parliament. 31. Learned Counsel thereafter, invited our attention to the statement of "Objects and Reasons" for the promulgation of the Constitution (121st Amendment) Bill, 2014. The Bill which eventually gave rise to the impugned Constitution (99th Amendment) Act, was taken up for consideration by the Lok Sabha on 13.8.2014, and was passed without much debate. It was submitted, that on the following day i.e., 14.8.2014, the same was placed before the Rajya Sabha, and was again passed, without much discussion. It was pointed out, that an issue, as serious as the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned senior Counsel also asserted, that the Constitution (99th Amendment) Act, was wholly ultra vires, as it seriously infringed the "basic structure/feature" of the Constitution i.e., the "independence of the judiciary". It was submitted, that the veracity of the above constitutional amendment, had to be examined in the light of Article 50. According to learned Counsel, the politicization of the process of selection and appointment of Judges to the higher judiciary, would lead to a dilution of the "independence of the judiciary". It was submitted, that the inclusion of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, had the effect of politicization of the process of appointment of Judges to the higher judiciary. It was pointed out, that the inclusion of the Union Minister in charge of Law and Justice within the framework of the NJAC, meant the introduction of the Government of the day, into the selection process. It was asserted, that the Union Minister's inclusion, meant surrendering one-sixth of the power of appointment, to the Government. It was submitted, that in order to understand the true effect of the inclusion of the Union Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olitical role. A politician has to serve his constituency, he has to nourish and sustain his vote bank, and above all, he has to conform with the agenda of his political party. Likewise, a person with ongoing litigation, irrespective of the nature of such litigation, would render himself ineligible for serving as an "eminent person" within the framework of the NJAC, because of his conflict of interest. 36. With reference to the inclusion of two "eminent persons" in the NJAC, Mr. Arvind P. Datar, learned Senior Advocate, invited our attention to Article 124A, whereunder, the above two "eminent persons" are to be nominated by a committee comprising of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People, or, where there is no such Leader of Opposition, then, leader of the single largest opposition party in the House of the People. Learned Counsel submitted, that neither Article 124A, nor any other provision, and not even the provisions of the NJAC Act, indicate the qualifications, of the two "eminent persons", who have been included amongst the six-Member NJAC. It was sought to be asserted, that in approximately 70 Statutes and Rules, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above provision, the Selection Committee for appointing the Chairperson and Members of the Appellate Tribunal, and the President and Members of the Tribunal was to be comprised of the Chief Justice of India (or his nominee), besides four Secretaries from different Ministries of the Union Government. This Court recorded its conclusions with reference to the aforesaid provision in paragraph 120(viii), which is being extracted hereunder: 120(viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee-Chairperson (with a casting vote); (b) A Senior Judge of the Supreme Court or Chief Justice of High Court-Member; (c) Secretary in the Ministry of Finance and Company Affairs-Member; and (d) Secretary in the Ministry of Law and Justice-Member. It was submitted, that the purpose sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted, that there could not be any legislative control, with reference to appointment of Judges to the higher judiciary. Such legislative control, according to learned Counsel, would breach "independence of the judiciary". It was submitted, that the Parliament having exercised its authority in that behalf, by framing the NJAC Act, and having provided therein, the ultimate control with the Parliament, must be deemed to have crossed the line, and transgressed into forbidden territory, exclusively reserved for the judiciary. Learned Counsel contended, that the duties and responsibilities vested in a constitutional authority, could only be circumscribed by the Constitution, and not by the Parliament through legislation. It was submitted, that the NJAC was a creature of the Constitution, as the NJAC flows out of Article 124A. Likewise, the Parliament, was also a creature of the Constitution. It was submitted, that one entity which was the creation of the Constitution, could not regulate the other, owing its existence to the Constitution. 40. It was pointed out by Mr. Ram Jethmalani, learned Senior Advocate, that the statement of "Objects and Reasons", as were projected for the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, Gandhinagar (Gujarat), the Advocates' Association, Chennai (Tamil Nadu), the Andhra Pradesh High Court Advocates' Association, Hyderabad (Andhra Pradesh), the Delhi High Court Bar Association, New Delhi, the Bar Association Mumbai (Maharashtra), the Gauhati High Court Bar Association, Guwahati (Assam), the Punjab & Haryana High Court Bar Association, Chandigarh (Punjab & Haryana), the Bombay Incorporated Law Society, Mumbai (Maharashtra), the Madhya Pradesh High Court Bar Association, Jabalpur (Madhya Pradesh), the Advocates' Association Bangalore (Karnataka), the Central Excise, Customs (Gold) Control Bar Association, New Delhi, the Advocates' Association, Allahabad (Uttar Pradesh), the Karnataka Advocates' Federation, Bangalore (Karnataka), the Allahabad High Court Bar Association (Uttar Pradesh), the Goa High Court Bar Association, Panaji (Goa), the Society of India Law of Firms, New Delhi, the Chhattisgarh High Court Bar Association, Bilaspur (Chhattisgarh), the Nagpur High Court Bar Association, Nagpur (Maharashtra), the Madurai Bench of Madras High Court Bar Association, Madurai (Tamil Nadu), the Jharkhand High Court Bar Association, Ranchi (Jharkhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, from the original 13 items (relating to land reforms and zamindari abolition), multiplied at a brisk rate, and currently numbered about 284. And many of them, had hardly anything to do with land reforms. It was contended, that the decision rendered by this Court in I.C. Golak Nath v. State of Punjab: AIR 1967 SC 1643, was a judicial reaction to the uninhibited insertions in the Ninth Schedule, leading to completely eclipsing fundamental rights. It therefore came to be held in the I.C. Golak Nath case AIR 1967 SC 1643, that Parliament by way of constitutional amendment(s) could not take away or abridge fundamental rights. 45. To project his contention, pertaining to tension and friction between the judiciary and the other two wings of governance, it was submitted, that from 1950 to 1973, there was virtually no attempt by the political-executive, to undermine or influence or dominate over the judiciary. It was pointed out, that during the aforesaid period, when Jawaharlal Nehru (upto 27th May, 1964), Gulzari Lal Nanda (upto 9th June, 1964), Lal Bahadur Shastri (upto 11th January, 1966), Gulzari Lal Nanda (upto 24th January, 1966) and Indira Gandhi (upto 1972) were runn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was gained by the public exchequer from the spectrum auction (for which reliance was placed on an article in the Financial Express dated 25.03.2015). It was submitted, that the embarrassment faced by the political-executive, has over shadowed the monumental gains to the nation. It was contended, that the Constitution (99th Amendment) Act, and the NJAC Act, were truthfully a political-executive device, to rein in the power of judicial review, to avoid such discomfiture. 47. It was also contended, that while adjudicating upon the present controversy, it was imperative for this Court, to take into consideration the existing socio-political conditions, the ground realities pertaining to the awareness of the civil society, and the relevant surrounding circumstances. These components, according to learned Counsel, were described as relevant considerations, for a meaningful judicial verdict in the V.G. Row case (1952) SCR 597. Referring to Shashikant Laxman Kale v. Union of India (1990) 4 SCC 366, it was contended, that for determining the purpose or the object of the legislation, it was permissible for a Court to look into the circumstances which had prevailed at the time when the law w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l principle and in constitutional classification, subject to the serious infirmities from which it suffers as the learned Chief Justice has tersely sketched. Whether this remedy will effectively cure the malady of criminal summitry is for the future to tell. 108. All this serves as a backdrop. Let me unfold in fuller argumentation my thesis that the Bill, good so far as it goes, is bad so far as it does not go-saved though by a pragmatic exception I will presently explain. Where the proposed law excludes the pre-and post-emergency crime-doers in the higher brackets and picks out only 'Emergency' offenders, its benign purpose perhaps becomes a crypto cover up of like criminals before and after. An 'ephemeral' measure to meet a perennial menace is neither a logical step nor national fulfilment. The classification, if I may anticipate my conclusion, is on the brink of constitutional break-down at that point and becomes almost vulnerable to the attack of Article 14. xxx 114. The crucial test is 'All power is a trust', its holders are 'accountable for its exercise', for 'from the people, and for the people, all springs, and all must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How?-I hesitate to state. Last of all, reliance was placed on the decision of this Court in Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682, wherein this Court extensively referred to the conditions regarding corruption which prevailed in the country. For the above purpose, it took into consideration the view expressed by the N.N. Vohra Committee Report, bringing out the nexus between the criminal syndicates and mafia. 48. Reliance was, then placed on the efforts made by the executive on the death of the first Chief Justice of India (after the promulgation of the Constitution), when Patanjali Sastri, J., who was the senior most Judge, was sought to be overlooked. Relying on recorded texts in this behalf, by Granville Austin, George H. Gadbois Jr. and M.C. Chagla, it was submitted, that all the six Judges, at that time, had threatened to resign, if the senior most Judge was overlooked for appointment as Chief Justice of India. 49. Referring to the first occasion, when the convention was broken, by appointing A.N. Ray, J., as the Chief Justice of India, it was submitted, that the supersession led to public protest, including speeches by former Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court. Additionally, it was pointed out, that two "eminent persons", who were to be essential components of the NJAC, were to be selected by a Committee, wherein the dominating voice was that of the political leadership. It was pointed out, that in the three-Member Committee authorised to nominate "eminent persons" included the Prime Minister and the Leader of the Opposition in the Lok Sabha, besides the Chief Justice of India. It was therefore submitted, that in the six-Member NJAC, three Members would have political-executive lineage. This aspect of the matter, according to the learned Counsel, would have a devastating affect. It would negate primacy of the higher judiciary, and the same would result in undermining the "independence of the judiciary". Based on the above foundation, learned senior Counsel raised a number of contentions. Firstly, it was submitted, that through the impugned constitutional amendment and the NJAC Act, the constitutional convention in this country, that the senior most Judge of the Supreme Court would be appointed as the Chief Justice of India, had been breached. It was submitted, that the above convention had achieved the status of a constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher judiciary, and also, the action of assigning the manner in which the NJAC would discharge its functions (of selecting Judges to the higher judiciary), with either the executive or the legislature, was unthinkable, if "independence of the judiciary" was to be maintained. It was pointed out, that the intent behind Article 124C, in the manner it had been framed, stood clearly exposed, by the aforesaid provisions of the NJAC Act. 52. Reference was also made to Section 12 of the NJAC Act, to highlight, that the NJAC had been authorized to notify in the Official Gazette, Regulations framed by it, with the overriding condition, that the Regulations so framed by the NJAC were to be consistent with the provisions of the NJAC Act, as also, the rules made thereunder (i.e., Under Section 11 of the NJAC Act). Having so empowered the NJAC (Under Sections 11 and 12 referred to above), and having delineated in Section 12(2), the broad outlines with reference to which the Regulations could be framed, it was submitted, that the power to delegate the authority to frame Regulations clearly stood exhausted. In that, the Parliament had no jurisdiction thereafter, to interfere in the matter of fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to Clause (2) of Article 368 of the Constitution; and, therefore, ratification by the specified number of State legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is Paragraph 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, Paragraph 7 alone is liable to be struck down rendering the Speakers' decision under Paragraph 6 that of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts Under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of Paragraph 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-second Amendment) Act, 1985 which inserted the Tenth Schedule since the President's assent to the Bill without prior ratification by the State legislatures is non est. The minority view also is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premise, exercised the power of judicial review over orders of disqualification made prior to 12.11.1991. The basic fallacy in the submission made on behalf of the Respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to 12th November, 1991 since para 7 in express terms totally excludes judicial review. It was, therefore, the vehement contention of the learned Counsel, that Clause (2) of Article 124A should be struck down, as being violative of the "basic structure" of the Constitution. 55. Mr. Fali S. Nariman, learned senior Counsel, also raised a purely technical plea. It was his contention, that 121st Constitution Amendment Bill, now the Constitution (99th Amendment) Act, was introduced in the Lok Sabha on 11th of August, 2014 and was passed by the Lok Sabha on 13th of August, 2014. It was further submitted, that the 121st Constitution Amendment Bill was discussed and passed by Rajya Sabha on 14.8.2014. Thereupon, the said Amendment Bill, which envisaged a constitutional amendment, was sent to the State Legislatures for ratificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the debates in the Rajya Sabha on 13.8.2014, and at pages 229 to 375 on 14.8.2014 (Volume 232 No. 26 and 27), as under: that Mr. Sitaram Yechury, Member of Parliament, (Rajya Sabha) raised a constitutional objection (on August 13, 2014) to the NJAC Bill saying: .... till the Constitution Amendment (121st Bill) comes into effect, the Legislature, I would like to humbly submit, does not have the right to enact a Bill for the creation of a Judicial Commission for appointments. (page 488) ...I am only asking you to seriously consider we are creating a situation where this proposal for creation of a Judicial Appointments Commission will become ultra vires of the Indian Constitution because our right to bring about a Bill to enact such a provision comes only after the Constitution Amendment Bill becomes effective. (page 489) ...Therefore, you please consider what I am saying with seriousness. I want also the law Minister to consider it. Let it not be struck down later as ultra vires. So, let us give it a proper consideration. (Page-490) * The Leader of the Opposition (Shri Ghulam Nabi Azad) then said: The leader of the opposition (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed along with this only as a guideline, so that Members of the Assemblies know what you are going to do. Shri Ravi Shankar Prasad: But it would become effective after assent. That is all. Mr. Deputy Chairman: That's what I am saying. It will become effective after six months. Now, I would like to know one thing from Mr. Parasaran. Article 246, according to him, (the Minister) gives absolute powers to Parliament to pass a legislation. Is there any provision in the Constitution, which prevents passing of such a Bill before the Constitutional Amendment is endorsed by the President? Is there any such provision? ...(interruptions) .... I will come to you. Yes, Mr. Parasaran. (Page-495) * In response Mr. K. Parasaran then said: Shri K. Parasaran: Sir, I would explain this. Now, we are concerned with Article 124 and a legislation Under Article 246 read with the relevant entries in the Seventh Schedule, pointed out by the Hon. Minister. Now, the Supreme Court has interpreted Article 124. We cannot pass an Act contrary to that judgment and, therefore, the need for amendment to the constitution. If the Constitution is not amended, then we lack the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bill, "and thereupon the Constitution shall stand amended in accordance with the terms of the Bill." This provision shows that a constitutional amendment cannot have any effect unless the President gives his assent to it and secondly, that nothing more than the President's assent to an amendment duly passed by the Parliament is required, in order that the Constitution should stand amended in accordance with the terms of the Bill. It must follow from this that the Constitution stood amended in accordance with the terms of the 44th Amendment Act when the President gave his assent to that Act on April 30, 1979. We must then turn to that Act for seeing how and in what manner the Constitution stood thus amended. The 44th Amendment Act itself prescribes by Section 1(2) a pre-condition which must be satisfied before any of its provisions can come into force. That pre-condition is the issuance by the Central Government of a notification in the official gazette, appointing the date from which the Act or any particular provision thereof will come into force, with power to appoint different dates for different provisions. Thus, according to the very terms of the 44th Amendment, none o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween Article 368(2) of the Constitution and Section 1(2) of the 44th Amendment Act. The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof. That is why it is difficult to accept the submission that, contrary to the expression of the constituent will, the amendments introduced by the 44th Amendment Act came into force on April 30, 1979 when the President gave his assent to that Act. The true position is that the amendments introduced by the 44th Amendment Act did not become a part of the Constitution on April 30, 1979. They will acquire that status only when the Central Government brings them into force by issuing a notification Under Section 1(2) of the Amendment Act. 59. It was also the contention of Mr. Fali S. Nariman, that just as a constitutional amendment was liable to be declared as ultra vires, if it violated and/or abrogated, the "core" or the "basic structure" of the Constitution; even a simple legislative enactment, which violated the "basic structure" of the Constitution, was liable to be declared as unconstitutional. For the instant proposition, learned Counsel referred to the Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which undoubtedly is, that the "basic structure" of the Constitution, cannot be infringed, no matter what. On the instant aspect some relevant judgments rendered by Constitutional Benches of this Court, have been cited hereinabove. It seems to us, that there is a fine difference in what the Petitioners contend, and what the Respondents seek to project. The submission advanced at the hands of the learned Counsel for the Petitioners does not pertain to lack of jurisdiction or inappropriate exercise of jurisdiction. The submission advanced at the hands of the learned Counsel for the Petitioners pointedly is, that it is impermissible to legislate in a manner as would violate the "basic structure" of the Constitution. This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the "basic structure" of the Constitution, even though the amendment had been carried out by following the procedure contemplated under "Part XI" of the Constitution. This leads to the determination that the "basic structure" is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have enured to the advantage, of the judicial organization as a whole. Experience had shown, according to learned Counsel, that adhering to the practice of appointing the senior most Judge as the Chief Justice of India, had resulted in institutional harmony amongst Judges, which was extremely important for the health of the judiciary, and also, for the "independence of the judiciary". It was submitted, that it would be just and appropriate, at the present juncture, to understand the width of the power, so as to prevent any likelihood of its misuse in future. It was submitted, that various ways and means could be devised to supersede Judges, and also, to bring in favourites. Past experience had shown, that the executive had abused its authority, when it departed from the above rule in April 1973, by superseding J.M. Shelat, J., the senior most Judge and even the next two Judges in the order of seniority after him, namely, K.S. Hegde and A.N. Grover, and appointed the fourth senior most Judge A.N. Ray, as the Chief Justice of India. Again in January 1977 on the retirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, was ignored, and the next senior most Judge, M.H. Beg, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the Parliament, was liable to fan the ambitions of Judges, and would make them loyal to those who could satisfy their ambitions. It was therefore the contention of the learned Counsel, that Section 5, which created an ambiguity in the matter of appointment of the Chief Justice of India, and could be abused to imperil "independence of the judiciary", was liable to be declared as unconstitutional. 63. It was also the contention of the learned Counsel for the Petitioners, that on the issue of selection and appointment of Judges to the higher judiciary, the NJAC was liable to take into consideration ability, merit and suitability (as may be specified by Regulations). It was submitted, that the above criteria could be provided through Regulations framed Under Section 12(2)(a), (b) and (c). It was pointed out, that the Regulations framed for determining the suitability of a Judge (with reference to ability and merit), would be synonymous with the conditions of eligibility. Inasmuch as, a candidate who did not satisfy the standards expressed in the Regulations, would also not satisfy, the prescribed conditions of appointment. It was asserted, that it would be a misnomer to treat t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Law and Justice, would cause a serious breach in the "independence of the judiciary". Most importantly, it was contended, that neither the impugned constitutional amendment, nor the provisions of the NJAC Act, provide for any quorum for holding the meetings of the NJAC. And as such (quite contrary to the contentions advanced at the hands of the learned Attorney General), it was contended, that a meeting of the NJAC could not be held, without the presence of the all Members of the NJAC. In order to support his above contention, he illustratively placed reliance on the Constitution (122nd Amendment) Bill, 2014 [brought before the Parliament, by the same ruling political party, which had successfully amended the Constitution by tabling the Constitution (121st Amendment) Bill, 2014]. The objective sought to be achieved through the Constitution (122nd Amendment) Bill, 2014, was to insert Article 279A. The proposed Article 279A intended to create the Goods and Services Tax Council. Sub-Article (7) of Article 279A postulated, that "... One-half of the total number of Members of the Goods and Services Tax Council..." would constitute the quorum for its meetings. And furthermore, that ".. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge-strength in High Courts, was justiciable? It was asserted, that the aforesaid two questions were placed for determination by a Constitution Bench of nine Judges (keeping in view the fact that the First Judges case, was decided by a seven-Judge Bench). It was asserted, that the decision rendered by this Court in the Second Judges case, was on the suo motu exercise of jurisdiction by this Court, wherein this Court examined matters far beyond the scope of the reference order. It was contended, that the Second Judges case was rendered, without the participation of all the stakeholders, inasmuch as, the controversy was raised at the behest of practicing advocates and associations of lawyers, and there was no other stakeholder involved during its hearing. 69. It was asserted, that the judiciary had no jurisdiction to assume to itself, the role of appointment of Judges to the higher judiciary. It was pointed out, that it is the Parliament alone, which represents the citizenry and the people of this country, and has the exclusive jurisdiction to legislate on matters. Accordingly, it was asserted, that the decisions in the Second and Third Judges cases, must be viewed as legislation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in finding anything wrong, in the composition of the NJAC. To point out the safeguards against entry of undesirable persons into the higher judiciary, it was emphasized, that only if five of the six Members of the NJAC recommended a candidate, he could be appointed to the higher judiciary. It was submitted, that the aforestated safeguards, postulated in the amended provisions, would not only ensure transparency, but would also render a broad based consideration. 71. As a counter, to the submissions advanced on behalf of the Petitioners, it was asserted, that the Parliament's power to amend the Constitution was plenary, subject to only one restriction, namely, that the Parliament could not alter the "basic structure" of the Constitution. And as such, a constitutional amendment must be presumed to be constitutionally valid (unless shown otherwise). For the instant proposition, reliance was placed on Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41, Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 538, the Kesavananda Bharati case (1973) 4 SCC 225, (specifically the view expressed by K.S. Hegde and A.K. Mukherjea, JJ.), B. Banerjee v. Anita Pan (1975) 1 SCC 166, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Based on the aforesaid submission, it was asserted, that the process initiated by the Parliament in 1990 (for the introduction of a Commission, for appointment of Judges to the higher judiciary), had taken twenty-four years to fructify. The composition of the NJAC introduced through the Constitution (99th Amendment) Act, according to him, meets with all constitutional requirements, as the same is neither in breach of the rule of "separation of powers", nor that of "the independence of the judiciary". It was contended, that the impugned provisions preserve the "basic structure" of the Constitution. 75. It was submitted, that the assailed provisions had only introduced rightful checks and balances, which are inherent components of an effective constitutional arrangement. The learned Attorney General also cautioned this Court, by asserting, that it was neither within the domain of the Petitioners, nor of this Court, to suggest an alternative combination of Members for the NJAC, or an alternative procedure, which would regulate its functioning more effectively. Insofar as the present petitions are concerned, it was asserted, that the challenge raised therein, could only be accepted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined intact. In this behalf, an illustrative reference was made to the features, which constituted the "basic structure" of the Constitution. According to the learned Attorney General, they included, the supremacy of the Constitution, the republican and democratic form of Government, the secular character of the Constitution, the "separation of powers" between the legislature, the executive and the judiciary, and the federal character of the Constitution (paragraph 292). In addition to the above, it was asserted, that India having signed the Universal Declaration of Human Rights, had committed itself to retaining such of the fundamental rights, as were incorporated in the above declaration (paragraph 299). In the above view, according to the Attorney General, the expression "amendment of this Constitution" would restrain the Parliament, from abrogating the fundamental rights absolutely, or from completely changing the "fundamental features" of the Constitution, so as to destroy its identity. And that, within the above limitation, the Parliament could amend every Article of the Constitution (paragraph 475). It was insisted, that the impugned provisions had not breached any of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adapt to the changing needs, arises. Likewise, in order to implement the Directive Principles, it could be necessary to abridge some of the fundamental rights vested in the citizens. The power to achieve the above objective needed, a broad and liberal interpretation of Article 368. Having so held, it was concluded, that even the fundamental rights could be amended (paragraph 634). Reference was made to the fact, that the founding fathers were aware, that in a changing world, there would be nothing permanent, and therefore, they vested the power of amendment in the Parliament through Article 368, so as to keep the Constitution in tune with, the changing concepts of politics, economics and social ideas, and to so reshape the Constitution, as would meet the requirements of the time (paragraph 637). With reference to the above, it was contended, that the Parliament did not have the power to abrogate or emasculate the "basic elements" or "fundamental features" of the Constitution, such as the sovereignty of India, the democratic character of our polity, the unity of the country, and the essential elements of the individual freedoms secured to the citizens. Despite the above limitations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, would introduce rigidity in the Constitution, as would break the Constitution itself (paragraph 1434). As such, it was held, that the amending power conferred by Article 368, would include the power to amend the fundamental rights, contained in Part III of the Constitution (paragraph 1435). In this behalf, it was asserted, that the issue, whether the amendment introduced would (or would not) be an improvement over the prevailing position, was not justiciable. It was asserted, whether the amendment would be an improvement or not, was for the Parliament alone to determine. And Courts, could not substitute the wisdom of the legislature, by their own foresight, prudence and understanding (paragraph 1436). It was asserted, that the amending power of the Parliament must contain the right to enact legislative provisions, for experiment and trial, so as to eventually achieve the best results (paragraph 1437). In the ultimate analysis, it was held, that the amendment of the Constitution had a wide and broad connotation, and would embrace within itself, the total repeal of some of the Articles, or their substitution by new Articles, which may not be consistent, or in conformity with oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration, to determine the "basic features" of the Constitution. 79. Having laid down the aforestated foundation, the learned Attorney General submitted, that that reference could only be made to Articles 124 and 217, as they originally existed, when the Constitution was promulgated. If the original provisions were to be taken into consideration, according to the learned Attorney General, it would be apparent that the above Articles, expressed that the right to make appointments of Judges to the higher judiciary, being limited only to a "consultative" participation of the judiciary, was in the determinative domain of the executive. It was pointed out, that on the subject of appointment of Judges to the higher judiciary, the primacy of the Chief Justice of India, through the collegium process, was an innovation of the judiciary itself (in the Second Judges case). The above primacy, was alien to the provisions of the Constitution, as originally enacted. And as such, the amendment to Article 124, and the insertion of Articles 124A to 124C therein, could not be examined on the touchstone of material, which was in stark contrast with the plain reading of Articles 124 and 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution envisaged a system of checks and balances. Inasmuch as, each organ of governance while being allowed the freedom to discharge the duties assigned to it, was subjected to controls, at the hands of one of the other organs, or both of the other organs. Illustratively, it was sought to be contended, that all executive authority, is subject to scrutiny through judicial review (at the hands of the judiciary). Likewise, legislation enacted by the Parliament, or the State legislatures, is also subject to judicial review, (at the hands of the judiciary). Even though, the executive and the legislature have the freedom to function and discharge their individual responsibilities, without interference by the other organ(s) of governance, yet the judiciary has been vested with the responsibility to ensure, that the exercise of executive and legislative functions, is in consonance with law. Likewise, it was submitted, that in the matter of appointment of Judges, Articles 124 and 217 provided for executive control, under the scheme of checks and balances. It was submitted, that the instant scheme of checks and balances, was done away with, by the Second and Third Judges cases, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, but also the NJAC Act fully satisfied the independence criterion, postulated as a "basic structure" of the Constitution. 83. In order to reiterate the above position, it was asserted, that primacy in the matter of appointment of Judges to the higher judiciary, was not contemplated in the Constitution, as originally framed. In this behalf, reference was made to Articles 124 and 217. And in conjunction therewith, adverting to the debates on the subject, by Members of the Constituent Assembly. Thereupon, it was asserted, that the issue of primacy of the Chief Justice, based on a decision by a collegium of Judges, was a judicial innovation, which required reconsideration. Moreover, it was submitted, that the Second and Third Judges cases, were founded on the interpretation of Articles of the Constitution, which had since been amended, and as such, the very basis of the Second and Third Judges cases, no longer existed. Therefore, the legal position declared in the above judgments, could not constitute the basis, of the contentions advanced at the hands of the Petitioners. Furthermore, even if the ratio recorded by this Court in the Second and Third Judges cases, was still to be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very same question came to be re-agitated in the First Judges case. It was held by the majority, while interpreting Article 222, that the consent of the Judge being transferred, need not be obtained. It was also pointed out, that ever since the inception of the Constitution, the office of the Chief Justice of India, was occupied by the senior most Judge of the Supreme Court. The above principle was departed from in April 1973, as the next senior most Judge-J.M. Shelat, was not elevated to the office of the Chief Justice of India. Even the next two senior most Judges, after him-K.S. Hegde and A.N. Grover, were also ignored. The instant supersession by appointing the fourth senior most Judge-A.N. Ray, as the Chief Justice of India, was seen as a threat to the "independence of the judiciary". Again in January 1977, on the retirement of A.N. Ray, CJ., the senior most Judge immediately next to him-H.R. Khanna, was ignored and the second senior most Judge-M.H. Beg, was appointed, as the Chief Justice of India. In the above background, the action of the executive, came to be portrayed as a subversion of the "independence of the judiciary". It was in the above background, that this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erica, Judges were appointed through a process of nomination by the President, and confirmation by the Senate. It was submitted, that in all the fifteen countries referred to above, the executive was the final determinative/appointing authority. Insofar as the appointments made by the Judicial Appointments Commissions/Committees/Councils (referred to above) were concerned, out of nine countries with Commissions, in two countries (South Africa and Sri Lanka) the executive had overwhelming majority, in four countries (France, Israel, Kenya and U.K.) there was a balanced representation of stakeholders including the executive, in three countries (Italy, Nigeria and Pakistan) the number of Judges was in a majority. In the five countries without Commissions/Committees/Councils (Canada, Australia, New Zealand, Bangladesh and the United States of America), the decision was taken by the executive, without any formal process of consultation with the judiciary. It was pointed out, that in Germany, the appointment process was conducted by the Parliament, and later confirmed by the President. It was pointed out, that the judiciary in all the countries referred to above, was totally independent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission. It was pointed out, that the above Redressal Commission, comprised of Members, with and without a judicial background. The President of the National Consumer Disputes Redressal Commission has to be a person, who has been a Judge of the Supreme Court. Illustratively, it was contended, where a matter is being adjudicated upon by a three-Member Bench, two of the Members may not be having any judicial background. These two non-judicial Members, could overrule the view expressed by a person, who had been a former Judge in the higher judiciary. It was submitted, that situations of the above nature, do sometimes take place. Yet, such a composition for adjudicatory functioning, where the Members with a judicial background are in a minority, is legally and constitutionally valid. If judicial independence cannot be held to be compromised in the above situation, it was asserted, that it was difficult to understand how the same could be considered to be compromised in a situation, wherein the NJAC has three out of its six Members, belonging to the judicial fraternity. 90. It was sought to be suggested, that the primacy of the judiciary, in the matter of appointment of Judges to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions, advanced at the hands of the learned Counsel for the Petitioners, to the effect that the Constitution (99th Amendment) Act, did not provide any guidelines, reflecting upon the eligibility of the "eminent persons", to be nominated to the NJAC, and as such, was liable to be struck down, it was submitted, that the term "eminent person" was in no way vague. It meant-a person who had achieved distinction in the field of his expertise. Reference was also made to the debates of the Constituent Assembly, while dealing with the term "distinguished jurist", contained in Article 124(3), it was pointed out, that the term "distinguished person" was not vague. In the present situation, it was submitted, that since the selection and nomination of "eminent persons", was to be in the hands of high constitutional functionaries (no less than the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha), it was natural to assume, that the person(s) nominated, would be chosen, keeping in mind the obligation and the responsibility, that was required to be discharged. Reliance in this behalf, was placed on the Centre for Public Interest Litigation case (2012) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, represent all the stakeholders of the justice delivery system. It was contended, that the presence of "eminent persons" was necessary, to ensure the representative participation of the general public, in the selection and appointment of Judges to the higher judiciary. Their presence would also ensure, that the selection process was broad based, and reflected sufficient diversity and accountability, and in sync with the evolving process of selection and appointment of Judges, the world over. 94. The learned Attorney General, then addressed the issue of inclusion of the Union Minister in charge of Law and Justice, as an ex officio Member in the NJAC. Reference was first made to Articles 124 and 217, as they were originally enacted in the Constitution. It was submitted, that originally, the power of appointment of Judges to the higher judiciary, was exclusively vested with the President. In this behalf reliance was placed on Article 74, whereunder the President was obliged to act on the aid and advice of the Council of Ministers, headed by the Prime Minister. It was pointed out, that the above position, was so declared, by the First Judges case. And as such, from the date of comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons best suited to the higher judiciary, would be selected. Moreover, it was submitted, that the executive was a key stakeholder in the justice delivery system, and as such, it was imperative for him to have, a role in the process of selection and appointment of Judges, to the higher judiciary. 96. The learned Attorney General allayed all fears, with reference to the presence of Union Minister, in the NJAC, by asserting that he would not be in a position to politicize the appointments, as he was just one of the six-Members of the NJAC. And that, the other Members would constitute an adequate check, even if the Minister in question, desired to favour a particular candidate, on political considerations. This submission was made by the learned Attorney General, keeping in mind the assumed fear, which the Petitioners had expressed, on account of the political leanings of the Union Minister, with the governing political establishment. It was accordingly asserted, that the presence of one member of the executive, in a commission of six Members, would not impact the "independence of the judiciary", leading to the clear and unambiguous conclusion, that the presence of the Union Minister i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges to the higher judiciary. Article 124A(2) provided, that the proceedings of the NJAC would not be questioned or invalidated on account of a vacancy or a defect in the composition of the NJAC. It was contended, that it was wrongful for the Petitioners to frown on Article 124A(2), as there were a number of statutory enactments with similar provisions. In this behalf, the Court's attention was inter alia drawn to Section 4(2), of the Central Vigilance Commission Act 2003, Section 4(2), of the Lokpal and Lokayuktas Act 2013, Section 7, of the National Commission for Backward Classes Act 1993, Section 29A, of the Consumer Protection Act 1986, Section 7, of the Advocates Welfare Act 2001, Section 8, of the University Grants Commission Act 1956, Section 9, of the Protection of Human Rights Act 1993, Section 7, of the National Commission for Minorities Act 1993, Section 8, of the National Commission for Minority Educational Institutions Act 2004, Section 24, of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, and a host of other legislative enactments of the same nature. Relying on the judgments in Bangalore Woollen, Cotto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bereft of any such particulars, and the absence of any prescribed criterion, had resulted in the appointment of Judges, even to the Supreme Court, which should have ordinarily been avoided. The learned Attorney General made a reference to three instances, which according to him, were universally condemned, by one and all. One of the Judges appointed to this Court, according to him, was a non-performer as he had authored just a few judgments as a Judge of the High Courts of Delhi and Kerala, and far lesser judgments as the Chief Justice of the Uttarakhand and Karnataka High Courts, and less than ten judgments during his entire tenure as a Judge of the Supreme Court. The second Judge, according to him, was notoriously late in commencing Court proceeding, a habit which had persisted with the said Judge even as a Judge of the Patna and Rajasthan High Courts, and thereafter, as the Chief Justice of the Jharkhand High Court, and also as a Judge of the Supreme Court. The third Judge, according to the learned Attorney General, was notoriously described as a tweeting Judge, because of his habit of tweeting his views, after he had retired. Learned Counsel for the Respondents, acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions and guidelines for determining the suitability of a candidate for appointment as a Judge. On the basis of the aforementioned analysis, it was submitted, that neither the constitutional amendment was violative of the "basic structure", nor the NJAC Act, was constitutionally invalid. For the above reasons, it was asserted, that the challenge raised by the Petitioners was liable to be rejected. 102. In response to the technical submission advanced by Mr. Fali S. Nariman, namely, that since the Constitution (99th Amendment) Act, was brought into force, consequent upon the notification issued by the Central Government in the Official Gazette on 13.4.2015, the consideration of the NJAC Bill and the passing of the NJAC Act, prior to the coming into force of the Constitution (99th Amendment) Act, would render it null and void, the learned Attorney General invited our attention to Article 118, which authorizes, each House of Parliament, to make rules for regulating their procedure, in the matter of conducting their business. It was pointed out, that Rules of Procedure and the Conduct of Business of the Lok Sabha, had been duly enacted by the Lok Sabha. A relevant extract of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 118, learned Attorney General, also placed reliance on Article 122, which is being reproduced below: 122. Courts not to inquire into proceedings of Parliament.--(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Based on Article 122, it was submitted, that the Constitution itself contemplated, that the validity of the proceedings in the Parliament, could not be called in question, on the ground of alleged irregularity in procedure. While reiterating, that the procedure laid down by the Parliament Under Article 118, had been duly complied with, it was submitted, that even if that had not been done, as long as the power of Parliament to legislate was not questioned, no challenge could be premised on the procedural defects in enacting the NJAC Act. In this behalf, reference was also made to Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Council of State. The only date with which the Court is concerned is 14th April 1937, the date on which the Governor General's assent was given; and the question whether the Act was or was not within the competence of the Legislature must be determined with reference to that date and to none other. Reliance was also placed on Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha 1961 (1) SCR 96, wherefrom the following observations were brought to our notice: It now remains to consider the other subsidiary questions raised on behalf of the Petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the Petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out, that primacy in the matter of appointment of Judges to the higher judiciary, was vested with the executive Under Articles 124 and 217, as originally enacted. Furthermore, this Court through its judgments culminating in the First Judges case, while correctly interpreting the aforesaid provisions of the Constitution, had rightly concluded, that the interaction between the executive and the Chief Justice of India (as well as, the other Judges of the higher judiciary) was merely "consultative", and that, the executive was entirely responsible for discharging the responsibility of appointment of Judges including Chief Justices, to the higher judiciary. It was submitted, that the Second Judges case, by means of a judicial interpretation, vested primacy, in the matter of appointment of Judges to the higher judiciary, with the Chief Justice of India, and his collegium of Judges. It was pointed out, that after the rendering of the Second Judges case, appointments of Judges commenced to be made, in the manner expressed by the above Constitution Bench. It was asserted, that there had been, an all around severe criticism, of the process of appointment of Judges to the higher judiciary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to this Court to read down the appropriate provisions, in a manner as to round off the offending provisions, rather than quashing the impugned constitutional and legislative provisions in their entirety. 105. Mr. Ranjit Kumar, learned Solicitor General of India submitted, that the entire Constitution had to be read as a whole. In this behalf, it was contended, that each provision was an integral part of the Constitution, and as such, its interpretation had to be rendered holistically. For the instant proposition, reliance was placed on the Kihoto Hollohan case 1992 Supp (2) SCC 651, T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, R.C. Poudyal v. Union of India 1994 Supp (1) SCC 324, the M. Nagaraj case (2006) 8 SCC 212, and the Kesavananda Bharati case (1973) 4 SCC 225. Based on the above judgments, it was asserted, that the term "President", as it existed in Articles 124 and 217, if interpreted holistically, would lead to the clear and unambiguous conclusion, that the President while discharging his responsibility with reference to appointment of Judges/Chief Justices to the higher judiciary, was bound by the aid and advice of the Council of Ministers, as cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Kesavananda Bharati case (1973) 4 SCC 225. It was contended, that when the matter pertaining to the effect of the striking down of a constitutional amendment, had been referred to a nine-Judge Bench, it would be improper for this Court, sitting in its present composition, to determine the aforesaid issue. 108. The second contention advanced at the hands of the learned Solicitor General, was based on Sections 6, 7 and 8 of the General Clauses Act. It was contended, that an amendment which had deleted some part of the erstwhile Article 124 of the Constitution, and substituted in its place something different, as in the case of Article 124, by the Constitution (99th Amendment) Act, would not result in the revival of the original Article which was in place, prior to the constitutional amendment, even if the amendment itself was to be struck down. It was submitted, that if a substituted provision was declared as unconstitutional, for whatever ground or reason(s), the same would not automatically result in the revival of the repealed provision. In order to support the aforesaid contention, reliance was placed on Ameer-un-Nissa Begum v. Mahboob Begum: AIR 1955 SC 352, Firm A.T.B. Mehta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the judiciary", with reference to the amendments made, could be determined only after the NJAC Act was made operational, by laying down the manner of its functioning. Since the pendency of the present litigation had delayed the implementation of the provisions of the amendment to the Constitution, as also to the NJAC Act, it would be improper for this Court, to accede to a challenge based on conjectures and surmises. 110. Mr. K. Parasaran, Senior Advocate, entered appearance on behalf of the State of Rajasthan. He submitted, that he would be supporting the validity of the impugned constitutional amendment, as also, the NJAC Act, and that, he endorsed all the submissions advanced on behalf of the Union of India. It was his contention, that Judges of the higher judiciary were already burdened with their judicial work, and as such, they should not be seriously worried about the task of appointment of Judges, which by the impugned amendment, had been entrusted to the NJAC. In his view, the executive and the Parliament were accountable to the people, and therefore, they should be permitted to discharge the onerous responsibility, of appointing Judges to the higher judiciary. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court, inasmuch as, the Chief Justice of India, and the two senior most Judges of the Supreme Court were ex officio Members of the NJAC. 113. With reference to the two "eminent persons" on the NJAC, it was his contention, that they could not be identified either with the executive or the legislature. For the nomination of the two "eminent persons", the Selection Committee comprises of one member of the executive, one member of the legislature, and one member of the judiciary. In the above view of the matter, it was asserted, that the contention, that the two "eminent persons" in the Commission would support the executive/the legislature, was preposterous. It was therefore the submission of the learned senior Counsel, that the "independence of the judiciary" could not be considered to have been undermined, keeping in mind the composition of the NJAC. 114. It was also contended, that the proceedings before the NJAC would be more transparent and broad based, and accordingly, more result oriented, and would ensure, that the best candidates would be selected for appointment as Judges to the higher judiciary. 115. It was asserted, that the NJAC provided for a consultative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout it's even having been tested. 117. Mr. T.R. Andhyarujina, Senior Advocate, entered appearance on behalf of the State of Maharashtra. It was his contention, while endorsing the submissions advanced on behalf of the Union of India, that the impugned Constitution (99th Amendment) Act, was a rare event, inasmuch as, the Parliament unanimously passed the same, with all parties supporting the amendment. He asserted, that there was not a single vote against the amendment, even though it was conceded, that there was one Member of Parliament, who had abstained from voting. Besides the above, it was asserted, that even the State legislatures ratified the instant constitutional amendment, wherein the ruling party, as also, the parties in opposition, supported the amendment. Based on the above, it was contended, that the instant constitutional amendment, should be treated as the unanimous will of the people, belonging to all sections of the society, and therefore the same could well be treated, as the will of the nation, exercised by all stakeholders. 118. It was submitted, that the amendment under reference should not be viewed with suspicion. It was pointed out, that Articles 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Third Judges case. The Court's attention was also drawn to the criticism of the Second and Third Judges cases, at the hands of H.M. Seervai, Fali S. Nariman and others especially the criticism at the hands of Krishna Iyer and Ruma Pal, JJ., and later even the author of the majority judgment in the Second Judges case-J.S. Verma, CJ.. It was, accordingly, the contention of the learned senior Counsel, that whilst determining the issue of "independence of the judiciary", reference should not be made to either of the above two judgments, but should be made to the plain language of Articles 124 and 217. Viewed in the above manner, it was asserted, that there would be no question of arriving at the conclusion, that the impugned constitutional amendment, violated the basic concepts of "separation of powers" and "independence of the judiciary". 120. Even though, there were no guidelines, for appointment of the two "eminent persons", emerging from the Constitution (99th Amendment) Act, and/or the NJAC Act, yet it was submitted, that it was obvious, that the "eminent persons" to be chosen, would be persons who were well versed in the working of courts. On the Court's asking, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission, to cater to the long standing aspiration of the citizens of the country. The resultant effect was, the passing of the Constitution (99th Amendment) Act, and the NJAC Act, by the Parliament. It was submitted, that the same came to be passed almost unanimously, with only one Member of Rajya Sabha abstaining. It was asserted, that this was a rare historical event after independence, when all political parties, having divergent political ideologies, voted in favour of the impugned constitutional amendment. In addition to the above, it was submitted, that as of now 28 State Assemblies had ratified the Bill. It was asserted, that the constitutional mechanism for appointment of Judges to the higher judiciary, had operated for a sufficient length of time, and learning from the experience emerging out of such operation, it was felt, that a broad based Commission should be constituted. It was contended, that the impugned constitutional amendment, satisfied all the parameters for testing the constitutional validity of an amendment. Learned Additional Solicitor General similarly opposed, the submissions advanced at the hands of the Petitioners challenging the inclusion of the Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. According to the learned senior Counsel, the impugned constitutional amendment, furthers and strengthens the "basic structure" principle, of a free and independent judiciary. It was his submission, that the assertions made at the hands of the Petitioners, to the effect that the impugned constitutional amendment, impinges upon the "basic structure" of the Constitution, and the "independence of the judiciary", were wholly misconceived. It was submitted, that this Court had not ever held, that the primacy of the judiciary through the Chief Justice of India, was an essential component of the "independence of the judiciary". It was asserted, that while considering the challenge raised by the Petitioners to the impugned constitutional amendment, it would be wholly unjustified to approach the challenge by assuming, that the primacy of the judiciary through the Chief Justice of India, would alone satisfy the essential components of "separation of power" and "independence of the judiciary". It was submitted, that the introduction of plurality, in the matter of appointment of Judges to the higher judiciary, was an instance of independence, rather than an instance of interference. With re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructure" of the Constitution. 123. Mr. Ajit Kumar Sinha, Senior Advocate, entered appearance on behalf of the State of Jharkhand. He asserted, that he should be taken as having adopted all the submissions addressed, on behalf of the Union of India. While commencing his submissions, he placed reliance on Article 124(4) and proviso (b) Under Article 217(1) to contend, that Judges of the higher judiciary, could not be removed except by an order passed by the President, after an address by each House of Parliament, supported by a majority of the total membership of that House, and by a majority of not less than 2/3rd of the Members of the House present and voting, had been presented to the President, on the ground of proved misbehaviour or incapacity. In this behalf, learned senior Counsel placed reliance on Section 16 of the General Clauses Act, 1897, which provides that the power to appoint includes the power to suspend or dismiss. Read in conjunction with Article 367, which mandates, that unless the context otherwise required, the provisions of the General Clauses Act 1897, would apply to the interpretation of the provisions of the Constitution, in the same manner as they applied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner of appointment of Judges, which was postulated in the judgments rendered in the Second and Third Judges cases, do not lead to the inference, that if the manner of appointment as contemplated therein was altered, it would violate the "basic structure" of the Constitution. 125. Mr. Yatindra Singh, learned Senior Advocate, entered appearance as an intervener. He contended, that the preamble to the Constitution of India, Article 50 (which provides for separation of the judiciary from the executive), the oath of office of a Judge appointed to the higher judiciary, the security of his tenure including the fixed age of retirement, the protection of the emoluments payable to Judges including salary and leave, etc., the fact that the Judges appointed to the higher judiciary served in Courts of Record, having the power to punish for contempt, and the provisions of the Judicial Officers Protection Act, 1850, and the Judges (Protection) Act, 1985, which grant immunity to them from civil as well as criminal proceedings, are incidents, which ensured "independence of the judiciary". It was submitted, that the manner of appointment of Judges to the higher judiciary, had nothing to do wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in the Second and Third Judges cases. It was the submission of the learned senior Counsel, that "independence of the judiciary" could be achieved by other methods, as had been adopted in other countries, or in a manner, as the Parliament deemed just and proper for India. It was asserted, that the manner of appointment contemplated by the impugned constitutional amendment had no infirmity, with reference to the issue of "independence of the judiciary", on account of the fact, that there was hardly any participation in the NJAC, at the behest of organs other than the judiciary. 128. Last of all, learned senior Counsel contended, that the "collegium system" did not serve the purpose of choosing the best amongst the available. The failure of the "collegium system", according to the learned senior Counsel, was apparent from the opinion expressed by V.R. Krishna Iyer, J. in the foreword to the book "Story of a Chief Justice", authored by U.L. Bhat, J. The "collegium system" was also adversely commented upon, by Ruma Pal, J., while delivering the 5th V.M. Tarkunde Memorial Lecture on the topic "An Independent Judiciary". Reference in this behalf, was also made to the observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e veracity of the aforesaid belief. It was submitted, that if those representing the Petitioners, were placing reliance on the judgment rendered in the Second Judges case, to project the aforesaid principle, it was legally fallacious, to do so. The reason, according to learned senior Counsel was, that the judgment in the Second Judges case, was not premised on an interpretation of any constitutional provision(s), nor was it premised on an elaborate discussion, with reference to the subject under consideration, nor was reliance placed on the Constituent Assembly debates. It was pointed out, that the judgment in the Second Judges case was rendered, on the basis of the principles contemplated by the authors of the judgment, and not on any principles of law. It was accordingly asserted, that the Petitioners' contentions, deserved outright rejection. 130. Learned senior Counsel invited this Court's attention to the fact, that the judgments rendered in the Kesavananda Bharati case: (1973) 4 SCC 225, the Minerva Mills Ltd. Case (1980) 3 SCC 625, and I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1, wherein the concept of "basic structure" of the Constitution was formulated and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem". 131. On the subject of the manner of interpreting the Constitution, with reference to appointments to the higher judiciary, reliance was placed on Registrar (Admn), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (1999) 7 SCC 725, to contend, that in spite of having noticed the judgments rendered in the Second Judges case, this Court struck a note of caution, with reference to the control, vested in the High Courts, over the subordinate judiciary. It was pointed out, that it had been held, that control had to be exercised without usurping the power vested with the executive, especially the power Under Articles 233, 234 and 235. It is submitted, that the power of the executive in the matter of appointments of Judges to the higher judiciary, could not be brushed aside, without any justification. It was contended, that it was improper to assume, that only the judiciary could appoint the best Judges, and the executive or the legislature could not. 132. Learned senior Counsel also made an impassioned reference, to the failure of the judiciary, to grant relief to the victims of the 1984 riots in Delhi, and the 2003 riots in Gujarat. It was also asserted, that justice had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question posed was, whether the impugned constitutional amendment represented the desire of the rich, the prosperous and the influential, or the poor and the needy, whose conditions, hopes and expectations had nothing to do with the impugned constitutional amendment? It was submitted, that the will of the nation, could only be decided by a plebiscite or a referendum. It was submitted, that the Petitioners would concede, that it could certainly be described as the overwhelming will of the political-executive. And no more. It was asserted, that the impugned constitutional amendment had an oblique motive. The amendment was passed unanimously, in the opinion of the Petitioners, for the simple reason, that the higher judiciary corrects the actions of the executive and the legislatures. This, it was pointed out, bothers the political-executive. 135. With reference to the will of the people, it was submitted, that the same could easily be ascertainable from the decision rendered in the L.C. Golak Nath case: AIR 1967 SC 1643, wherein a eleven-Judge Bench declared, that a constitutional amendment was "law" with reference to Part III of the Constitution, and therefore, was subject to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g down of material parts of Article 39A of the Constitution, the Parliament while exercising its power Under Article 368, had passed the Constitution (42nd Amendment) Act, 1976, by an overwhelming majority. Through the above amendment, the Parliament added Clauses (4) and (5) to Article 368, which read as under: (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. The aforesaid amendment was set aside, as being unconstitutional, by a unanimous decision, in the Minerva Mills Ltd. Case (1980) 3 SCC 625. It was held, that the amending power of the Parliament Under Article 368 was limited, inasmuch as, it had no right to repeal or abrogate the Constitution, or to destroy its "basic or essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or revision was disposed of. By the former judgment, convicted Members became disqualified, and had to vacate their respective seats, even though, the conviction was under challenge. In the latter judgment, this Court upheld the order passed by the Patna High Court, declaring that a person who was confined to prison, had no right to vote, by virtue of the provisions contained in Section 62(2) of the Representation of the People Act, 1951. Since he/she was not an elector, therefore it was held, that he/she could not be considered as qualified, to contest elections to either House of Parliament, or to a Legislative Assembly of a State. 139. It was pointed out, that Government (then ruled by the U.P.A.) introduced a series of Bills, to invalidate the judgment rendered by this Court in the Jan Choukidar case (2013) 7 SCC 507. This was sought to be done by passing the Representation of the People (Amendment and Validation) Act, 2013, within three months of the rendering of the above judgment. It was submitted, that it was wholly misconceived for the learned Counsel representing the Union of India, and the concerned States to contend, that the determination by the Parliament and the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic. Quite the opposite, judges are viewed as bringing different skills or backgrounds that should be selectively utilized. 142. It was submitted, that the method of appointment, evolved through the Second and Third Judges cases, had been hailed by several jurists, who had opined that the same could be treated as a precedent worthy of emulation by the United Kingdom. Reference in this behalf was also made to, the opinion of Lord Templeman, a Member of the House of Lords in the United Kingdom. 143. Having given our thoughtful consideration to the position assumed by the learned Counsel representing the rival parties, it is essential to hold, that every constitutional amendment passed by the Parliament, either by following the ordinary procedure contemplated Under Article 368(2), or the special procedure contemplated in the proviso to Article 368(2), could in a sense of understanding, by persons not conversant with the legal niceties of the issue, be treated as the will of the people, for the simple reason, that parliamentarians are considered as representatives of the people. In our view, as long as the stipulated majority supports a constitutional amendment, it would be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwhelming majority, inasmuch as, only 37 Members from the AIADMK had consciously abstained from voting in the Lok Sabha, and only one Member of the Rajya Sabha-Ram Jethmalani, had consciously abstained from voting in favour thereof, it cannot be accepted, that the same is exempted from judicial review. The scope of judicial review with reference to a constitutional amendment and/or an ordinary legislation, whether enacted by the Parliament or a State Legislature, cannot vary, so as to adopt different standards, by taking into consideration the strength of the Members of the concerned legislature, which had approved and passed the concerned Bill. If a constitutional amendment breaches the "core" of the Constitution or destroys its "basic or essential features" in a manner which was patently unconstitutional, it would have crossed over forbidden territory. This aspect, would undoubtedly fall within the realm of judicial review. In the above view of the matter, it is imperative to hold, that the impugned constitutional amendment, as also, the NJAC Act, would be subject to judicial review on the touchstone of the "basic structure" of the Constitution, and the parameters laid down by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s every court within the territory of India, to honour the interpretation, conclusion, or meaning assigned to a provision by this Court. It would, therefore be rightful, to interpret the provisions of the Constitution relied upon, by giving the concerned provisions, the meaning, understanding and exposition, assigned to them, on their interpretation by this Court. In the above view of the matter, it would neither be legal nor just, to persist on an understanding of the concerned provision(s), merely on the plain reading thereof, as was suggested on behalf of the Respondents. Even on a plain reading of Article 141, we are obligated, to read the provisions of the Constitution, in the manner they have been interpreted by this Court. 150. The manner in which the term "consultation" used in Articles 124, 217 and 222 has been interpreted by the Supreme Court, has been considered at great length in the "Reference Order", and therefore, there is no occasion for us, to re-record the same yet again. Suffice it to notice, that the term "consultation" contained in Articles 124, 217 and 222 will have to be read as assigning primacy to the opinion expressed by the Chief Justice of India (based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of appointment of Judges to the higher judiciary must rest with the judiciary. The above position was maintained in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193 in 1977 by a five-Judge Bench, wherein it was held, that in all conceivable cases, advice tendered by the Chief Justice of India (in the course of his "consultation"), should principally be accepted by the Government of India, and that, if the Government departed from the counsel given by the Chief Justice of India, the Courts would have an opportunity to examine, if any other extraneous circumstances had entered into the verdict of the executive. In the instant judgment, so as to emphasize the seriousness of the matter, this Court also expressed, that it expected, that the above words would not fall on deaf ears. The same position was adopted in the Second Judges case rendered in 1993 by a nine-Judge Bench, by a majority of 7:2, which also arrived at the conclusion, that the judgment rendered in the First Judges case, did not lay down the correct law. M.M. Punchhi, J., (as he then was) one of the Judges on the Bench, who supported the minority opinion, also endorsed the view, that the action of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of India. It is therefore clear, that the political-executive has been conscious of the fact, that the issue of appointment of Judges to the higher judiciary, mandated the primacy of the judiciary, expressed through the Chief Justice of India. In this behalf, even the learned Attorney General had conceded, that the supersession of senior Judges of the Supreme Court, at the time of the appointment of the Chief Justice of India in 1973, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and the second supersession of a Supreme Court Judge, at the time of the appointment of the Chief Justice of India in 1977, were executive aberrations. (iv) Fourthly, the Memorandum of Procedure for appointment of Judges and Chief Justices to the higher judiciary drawn in 1950, soon after India became independent, as also, the Memorandum of Procedure for appointment of Judges and Chief Justices to the higher judiciary redrawn in 1999, after the decision in the Second Judges case, manifest that, the executive had understood and accepted, that selection and appointment of Judges to the higher judiciary would emanate from, and would be made on the advice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so concluded, we reject all the submissions advanced at the hands of the learned Counsel for the Respondents, canvassing to the contrary. IV. 153. The next question which arises for consideration is, whether the process of selection and appointment of Judges to the higher judiciary (i.e., Chief Justices, and Judges of the High Courts and the Supreme Court), and the transfer of Chief Justices and Judges of one High Court to another, contemplated through the impugned constitutional amendment, retains and preserves primacy in the decision making process, with the judiciary? It was the emphatic contention of the learned Attorney General, the learned Solicitor General, the learned Additional Solicitor General, and a sizeable number of learned senior Counsel who represented the Respondents, that even after the impugned constitutional amendment, primacy in the decision making process, Under Articles 124, 217 and 222, has been retained with the judiciary. Insofar as the instant aspect of the matter is concerned, it was contended on behalf of the Respondents, that three of the six Members of the NJAC were ex officio Members drawn from the judiciary-the Chief Justice of India, and two oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents, emerges from an over simplified and narrow approach. The primacy vested in the Chief Justice of India based on the collective wisdom of a collegium of Judges, needs a holistic approach. It is not possible for us to accept, that the primacy of the judiciary would be considered to have been sustained, merely by ensuring that the judicial component in the membership of the NJAC, was sufficiently capable, to reject the candidature of an unworthy nominee. We are satisfied, that in the matter of primacy, the judicial component of the NJAC, should be competent by itself, to ensure the appointment of a worthy nominee, as well. Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court (next to the Chief Justice of India), consider a nominee to be worthy for appointment to the higher judiciary, the concerned individual may still not be appointed, if any two Members of the NJAC opine otherwise. This would be out-rightly obnoxious, to the primacy of the judicial component. The magnitude of the instant issue, is apparent from the fact that the two "eminent persons" (-lay persons, according to the learned Attorney General), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructure" of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC. The impugned constitutional amendment, being ultra vires the "basic structure" of the Constitution, is liable to be set aside. V. 159. It is surprising, that the Chief Justice of India, on account of the position he holds as pater familias of the judicial fraternity, and on account of the serious issues, that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far reaching public interest, was suspected by none other than Dr. B.R. Ambedkar, during the course of the Constituent Assembly debates, when he declined to accept the suggestions made by some Members of the Constituent Assembly, that the selection and appointment of Judges to the higher judiciary should be made with the "concurrence" of the Chief Justice of India, by observing, that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have. And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to reciprocate the favour. 161. The psychological concept of the "legitimate power of reciprocity", was also highlighted by Dennis T. Regan of the Cornell University in his article-"Effects of a Favour and Liking on Compliance". It was pointed out, that there was sufficient evidence to establish, that favours do generate feelings of obligation, and the desire to reciprocate. According to the author, the available data suggested, that a favour would lead to reported feelings of obligation, on the part of its recipient. 162. In his book "Influence: The Psychology of Persuasion"-Robert Cialdini, Regent's Professor Emeritus of Psychology and Marketing at Arizona State University, in Chapter II titled-"Reciprocation", expressed the view, that "possibly one of the most potent compliance techniques, was the rule of reciprocation, which prompts one to repay, what someone has given to him. When a gift is extended, the recipient feels indebted to the giver, often feels uncomfortable with this indebtedness, and feels compelled to cancel the debt...often against his/her better judgment". It was pointed out, that the rule of reciprocation, was widespread across the human cultures, sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation. An article titled as "Loyalty, Gratitude, and the Federal Judiciary", written by Laura E. Little (Associate Professor of Law, Temple University School of Law, as far back as in 1995), deals with the issue in hand, pointedly with reference to appointment of Judges. The article reveals, that the issue of reciprocity has been a subject of conscious debate, with reference to the appointment of Judges for a substantial length of time. The conclusions drawn in the above article are relevant to the present controversy, and are being extracted hereunder: On the issue of impartiality, an individual undertaking a federal judgeship confronts a difficult task. Contemporary lawyers commonly agree that the law is not wholly the product of neutral principles and that a judge must choose among values as she shapes the law. Yet, the standards governing impartiality in federal courts largely assume that total judicial neutrality and dispassion are possible. The process of mapping out a personal framework for decision making is therefore apt to create considerable discordance for the judge. Added to this burden are the special pulls of gratitude and loyalty toward the individuals who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and it is the child's inbuilt moral obligation, to reciprocate to his parents by extending unimpeachable loyalty and gratitude. The above position finds replication in relationships of teacher and taught, master and servant, and the like. In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor, would more often than not, be treated as an act of grave moral deprivation. When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty. 165. The consideration recorded hereinabove, endorses the view, that the political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication. Reciprocity, and feelings of pay back to the political-executive, would be disastrous to "independence of the judiciary". In this, we are only reiterating the position adopted by Dr. B.R. Ambedkar. He feared, that with the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67. Since the executive has a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable. In today's world, people are conscious and alive to the fact, that their rights should be adjudicated in consonance of the rules of natural justice. One of the rules of natural justice is, that the adjudicator should not be biased. This would mean, that he should neither entertain a prejudice against either party to a lis, nor should he be favourably inclined towards any of them. Another component of the rule of bias is, that the adjudicator should not have a conflict of interest, with the controversy he is to settle. When the present set of cases came up for consideration, a plea of conflict of interest was raised even against one of the presiding Judges on the Bench, which resulted in the recusal of Anil R. Dave, J. on 15.4.2015. A similar prayer was again made against one of us (J.S. Khehar, J.), on 21.4.2015, on the ground of conflict of interest. What needs to be highlighted is, that bias, prejudice, favour and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support, may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role. In the NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary. It may be difficult for Judges approved by the NJAC, to resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the lis. The above, would have the inevitable effect of undermining the "independence of the judiciary", even where such a plea is repulsed. Therefore, the role assigned to the political-executive, can at best be limited to a collaborative participation, excluding any role in the final determination. Therefore, merely the participation of the Union Minister in charge of Law and Justice, in the final process of selection, as an ex officio Member of the NJAC, would render the amended provision of Article 124A(1)(c) as ultra vires the Constitution, as it impinges on the principles of "indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem and finally to evolve a new method and strategy to treat and cure those ailments by administering and injecting a 'new invented medicine' (meaning thereby a newly-developed method and strategy) manufactured in terms of the formula under Indian pharmacopoeia (meaning thereby according to national problems in a mixed culture etc.) but not according to American or British pharmacopoeia which are alien to our Indian system though the system adopted in other countries may throw some light for the development of our system. The outcry of some of the critics is when the power of appointment of Judges in all democratic countries, far and wide, rests only with the executive, there is no substance in insisting that the primacy should be given to the opinion of the CJI in selection and appointment of candidates for judgeship. This proposition that we must copy and adopt the foreign method is a dry legal logic, which has to be rejected even on the short ground that the Constitution of India itself requires mandatory consultation with the CJI by the President before making the appointments to the superior judiciary. It has not been brought to our notice by any of the counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omotion, tenure and removal. According to the paper, the French model came into existence as a consequence of concerns about excessive politicization. Naturally, the process evolved into extensive independence of judicial power. Yet, judicial concern multiplied manifolds in the judiciary's attempt to give effect to the European Convention of Human Rights. And the judiciary's involvement in the process of judicial review, in the backdrop of surmounting political scandals. The paper describes the pattern in Italy to be similar. In Italy also, prominent scandals led to investigation of businessmen, politicians and bureaucrats (during the period from 1992 to 1997), which resulted in extensive judicial participation, in political activity. The composition of the Council in Italy, was accordingly altered in 2002, to increase the influence of the Parliament. 173. The paper noted, that the French-Italian models had been adopted in Latin America, and other developing countries. It was pointed out, that the World Bank and other similar multilateral donor agencies, insist upon Judicial Councils, to be associated with judicial reform, for enforcement of the rule of law. The Elements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her by politicians or by election) had given way to "Merit Commissions" so as to base selection of Judges on merit. Merit Commissions, it was felt, were analogous to Judicial Councils. The system contemplated therein, was non-partisan. The Judicial Selection Commission comprised of judges, lawyers and political appointees. 177. Referring to the works of renowned jurists on the subject, it was sought to be concluded, that in today's world, there was a strong consensus, that of all the procedures, the merit plan insulated the judiciary from political pressure. In their remarks, emerging from the survey carried out by them, it was concluded, that it was impossible to eliminate political pressure on the judiciary. Judicial Commissions/Councils created in different countries were, in their view, measures to enhance judicial independence, and to minimize political influence. It was their view that once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary. 178. In analyzing the conclusions drawn in the article, one is constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 181. The response of the learned Attorney General was emphatic. Who could know better than the Prime Minister, the Chief Justice of India, or the Leader of Opposition in the Lok Sabha (and when there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the Lok Sabha)? And he answered the same by himself, that if such high ranking constitutional authorities can be considered as being unaware, then no one in this country could be trusted, to be competent, to take a decision on the matter-neither the legislature, nor the executive, and not even the judiciary. The Attorney General then quipped-surely this Court would not set aside the impugned constitutional amendment, or the NJAC Act, on such a trivial issue. He also suggested, that we should await the outcome of the nominating authorities, and if this Court felt that a particular individual nominated to discharge the responsibility entrusted to him as an "eminent person" on the NJAC, was inappropriate or unacceptable or had no nexus with the responsibility required to be shouldered, then his appointment could be set aside. 182. Having given our thoughtful consideration to the matter, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC. We are therefore persuaded to accept, that Article 124A(1)(d) is liable to be set aside and struck down, for having not laid down the qualifications of eligibility for being nominated as "eminent persons", and for having left the same vague and undefined. 183. It is even otherwise difficult to appreciate the logic of including two "eminent persons", in the six-Member NJAC. If one was to go by the view expressed by the learned Attorney General, "eminent persons" had been included in the NJAC, to infuse inputs which were hitherto not available with the prevailing selection process, for appointment of Judges to the higher judiciary. Really a submission with all loose ends, and no clear meaning. He had canvassed, that they would be "lay persons" having no connection with the judiciary, or even with the profession of advocacy, perhaps individuals who did not even have any law related academic qualification. It is difficult to appreciate what inputs the "eminent persons", satisfying the qualification depicted by the learned Attorney General, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C do not agree to the proposal. In the scheme of the selection process of Judges to the higher judiciary, contemplated under the impugned constitutional amendment read with the NJAC Act, the two "eminent persons" are sufficiently empowered to reject all recommendations, just by themselves. Not just that, the two "eminent persons" would also have the absolute authority to reject all names unanimously approved by the remaining four Members of the NJAC. That would obviously include the power to reject, the unanimous recommendation of the entire judicial component of the NJAC. In our considered view, the vesting of such authority in the "eminent persons", is clearly unsustainable, in the scheme of "independence of the judiciary". Vesting of such authority on persons who have no nexus to the system of administration of justice is clearly arbitrary, and we hold it to be so. The inclusion of "eminent persons", as already concluded above (refer to paragraph 156), would adversely impact primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). For the reasons recorded hereinabove, it is apparent, that Article 124A(1)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings. It was his contention, that past experience with reference to the said Judge, indicated a similar demeanour, as a Judge of different High Courts and as Chief Justice of one High Court. It was lamented, that the above behaviour was not sufficient, in the process adopted under the "collegium system", to reject the Judge from elevation to the Supreme Court. The third Judge was described as an individual, who was habitually tweeting his views, on the internet. He described him as an individual unworthy of the exalted position of a Judge of the Supreme Court, and yet, the "collegium system" had supported his appointment to the Supreme Court. 189. Just as it was impossible to overlook a submission advanced by the Attorney General, so also, it would be improper to leave out submissions advanced on a similar note, by none other than the President of the Supreme Court Bar Association. Insofar as Mr. Dushyant A. Dave, Senior Advocate, is concerned, his pointed assertion of wrongful appointments included a reference to a Judge of this Court, who had allegedly taken on his board a case, which was not assigned to his roster. It was alleged, that he had disposed of the case wrongfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her judiciary. Secondly, none of the misgivings expressed on behalf of the Respondents, are referable to integrity and misdemeanor. Another aspect, which cannot be compromised, at the time of selection of an individual, as a Judge at the level of the higher judiciary. Nothing wrong at this front also. Thirdly, not in a single of the instances referred to above, the political-executive had objected to the elevation of the Judges referred to. We say so, because on our asking, we were furnished with the details of those who had been elevated, despite objections at the hands of the Union-executive. None of the Judges referred to, figured in that list. Fourthly, no allegation whatsoever was made by the Attorney General, with reference to Judges, against whom objections were raised by the political-executive, and yet, they were appointed at the insistence of the Chief Justice, under the "collegium system". Fifthly, that the political-executive disposition, despite the allegations levelled by the learned Attorney General, chose to grant post-retirement assignments, to three of the four instances referred to, during the course of hearing. A post-retirement assignment was also allowed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the judicial process, there are a set of remedies, that are available to the parties concerned. The process contemplates, culmination of proceedings at the level of the Supreme Court. Once the process has run the full circle, it is indeed futile to allege any wrong doing, except on the basis of adequate material to show otherwise. Not that, the Supreme Court is right, but that, there has to be a closure. Most of the instances, illustratively mentioned by the President of the Supreme Court Bar Association, pertained to criminal prosecutions. The adjudication of such controversies is dependent on the adequacy of evidence produced by the prosecution. The nature of the allegations (truthful, or otherwise), have an important bearing, on the interim relief(s) sought, by the parties. The blame for passing (or, not passing) the desired orders, does not therefore per se, rest on the will of the adjudicating Judge, but the quality and authenticity of the evidence produced, and the nature of the allegations. Once all remedies available stand exhausted, it does not lie in the mouth of either the litigant, or the concerned counsel to imply motives, without placing on record any further ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative procedure for the selection and appointment of Judges to the higher judiciary, so long as, the attributes of "separation of powers" and "independence of the judiciary", which are "core" components of the "basic structure" of the Constitution, are maintained. 196. That, however, will depend upon the standards of the moral fiber of the Indian polity. It cannot be overlooked, that the learned Attorney General had conceded, that there were certain political upheavals, which had undermined the "independence of the judiciary", including an executive overreach, at the time of appointment of the Chief Justice of India in 1973, followed by the mass transfer of Judges of the higher judiciary during the emergency in 1976, and thereafter a second supersession, at the time of appointment of another Chief Justice of India in 1977. And further, the interference by the executive, in the matter of appointment of Judges to the higher judiciary during the 1980's. 197. An important issue, that will need determination, before the organic structure of the Constitution is altered, in the manner contemplated by the impugned constitutional amendment, would be, whether the civil society, has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the well functioning of democracy in this country, he expressed, that the judiciary was more responsible than the other institutions. 199. On the above interview, Mani Shankar Aiyar, a veteran Congress Member of Parliament in the Rajya Sabha, while expressing his views noticed, that India could not be "emergency proof", till the Constitution provided for the declaration of emergency, at the discretion of an elected Government. He pointed out, that it should not be forgotten, that in 1975, emergency had been declared within the framework of the Constitution. It was therefore suggested, that one of the solutions to avoid a declaration of emergency could be, to remove Part XVIII of the Constitution, or to amend it, and "to provide for only an external emergency". He however raised a poser, whether it would be practical to do so? One would venture to answer the same in the negative. And in such situation, to trust, that the elected Government would act in the interest of the nation. 200. The stance of L.K. Advani was affirmed by Sitaram Yechury, a veteran CPI (Marxist) Member of Parliament in the Rajya Sabha, who was arrested, like L.K. Advani, during the emergency in 1975. 201. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumbents, deserved just that? Could it be, that just like its predecessor, the present political establishment has now appointed its rank favourites? What emerges is, trappings of the spoils system, and nothing else. None of the above parameters, can be adopted in the matter of appointment of Judges to the higher judiciary. For the judiciary, the best out of those available have to be chosen. Considerations cannot be varied, with a change in Government. Demonstrably, that is exactly what has happened (repeatedly?), in the matter of non-judicial appointments. It would be of utmost importance therefore, to shield judicial appointments, from any political-executive interference, to preserve the "independence of the judiciary", from the regime of the spoils system. Preserving primacy in the judiciary, in the matter of selection and appointment of Judges to the, higher judiciary would be a safe way to do so. 205. In conclusion, it is difficult to hold, in view of the factual position expressed above, that the wisdom of appointment of Judges, can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assent of the President on 31.12.2014 i.e., on a date when the NJAC had not yet come into existence. For this, learned Counsel had placed reliance on the A.K. Roy case (1982) 1 SCC 271, to contend, that the constitutional amendment in the instant case would not come into force on 13.12.2014, but on 13.4.2015. 207. A complementary additional submission was advanced on behalf of the Petitioners, by relying upon the same sequence of facts. It was contended, that the power of veto vested in two Members of the NJAC, through the second proviso Under Section 5(2) of the NJAC Act (in the matter of appointment of the Chief Justice and Judges of the Supreme Court), and Section 6(6) of the NJAC Act (in the matter of appointment of Chief Justices and Judges of High Courts) could not be described as laying down any procedure. It was submitted, that the above provisions clearly enacted substantive law. Likewise, it was contended, that the amendment of the words "after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose", on being substituted by the words "on the recommendation of the National Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct of Business of the Lok Sabha) the suspension of the proviso to Rule 66. And on due consideration, the Lok Sabha had suspended the proviso to Rule 66, and had taken up the NJAC Bill for consideration. Since the validity of Rule 388 is not subject matter of challenge before us, it is apparent, that it was well within the competence of the Parliament, to have taken up for consideration the NJAC Act, whilst the Constitution (121st Amendment) Bill, on which the NJAC Act was fully dependent, had still not been passed, in anticipation of the passing of the Constitution (121st Amendment) Bill. 210. The principle contained in Rule 66, even if the said rule had not been provided for, would always be deemed to have been impliedly there. In the absence of a foundation, no superstructure can be raised. The instant illustration is relatable to Rule 66, wherein the pending Bill would constitute the foundation, and the Bill being introduced in anticipation of the passing of the pending Bill, would constitute the superstructure. Therefore, in the absence of the foundational Bill (-in the instant case, the 121st Constitution Amendment Bill), there could be no question of raising the infrastruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Attorney General, it is necessary for us to record, that in our considered view, the aforestated irregularity pointed out by the learned Counsel, would be completely beyond the purview of challenge, specially because it was not the case of the Petitioners, that the Parliament did not have the legislative competence to enact the NJAC Act. For the reasons recorded hereinabove, it is not possible for us to accept, that the NJAC Act was stillborn, or that it was liable to be set aside, for the reasons canvassed by the learned Counsel for the Petitioners. 213. It is also not possible for us to accept, that while enacting the NJAC Act, it was imperative for the Parliament to follow the procedure contemplated Under Article 368. Insofar as the instant aspect of the matter is concerned, the Constitution (99th Amendment) Act, amended Articles 124 and 217 (as also, Articles 127, 128, 222, 224, 224A and 231), and Articles 124A to 124C were inserted in the Constitution. While engineering the above amendments, the procedural requirements contained in Article 368 were admittedly complied with. It is therefore apparent, that no procedural lapse was committed while enacting the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain such an argument was expressedly rejected by this Court. We may rest content by referring to a passage from the judgment of our learned brother Chandrachud, J., ... which runs thus: The constitutional amendments may, on the ratio of the Fundamental Rights case be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the Legislature as defined and specified in Chapter I, Part 11 of the Constitution and (2) it must not offend against the provisions of Articles 13(1) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceptable in law. 216. The above contention, advanced by the learned Attorney General, has been repulsed. For this, in the first instance, reliance was placed on Public Services Tribunal Bar Association v. State of U.P. (2003) 4 SCC 104 In the instant judgment, it is seen from the observations recorded in paragraph 26, that this Court concluded, that the constitutional validity of an ordinary legislation could be challenged on only two grounds, namely, for reasons of lack of legislative competence, and on account of violation of any fundamental rights guaranteed in Part III of the Constitution, or of any other constitutional provision. The above determination supports the contention advanced by the learned Attorney General, who seeks to imply from the above conclusion, that an ordinary legislation cannot be assailed on the ground of it being violative of the "basic structure" of the Constitution. Despite having held as above, in its final conclusion recorded in paragraph 44, it was observed as under: 44. For the reasons stated above, we find that the State Legislature was competent to enact the impugned provisions. Further, that the provisions enacted are not arbitrary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with law laid down by us in the present case. 217. It was submitted by Dr. Rajeev Dhavan, learned senior Counsel, that this Court in the M. Nagaraj case (2006) 8 SCC 212, while upholding the constitutional validity of the impugned constitutional amendment, by testing the same by applying the "width test", extended the aforesaid concept to State legislations. It was accordingly sought to be inferred, that State legislations could be assailed, not only on the basis of the letter and text of constitutional provisions, but also, on the basis of the "width test", which was akin to a challenge raised to a legislative enactment based on the "basic structure" of the Constitution. 218. Reliance was then placed on Uttar Pradesh Power Corporation Limited v. Rajesh Kumar (2012) 7 SCC 1, wherein the issue under reference had been raised, as is apparent from the discussion in paragraph 61, which is extracted below: 61. Dr. Rajeev Dhavan, learned senior Counsel, supporting the decision of the Division Bench which has declared the Rule as ultra vires, has submitted that if M. Nagaraj is properly read, it does clearly convey that social justice is an overreaching principle of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the subject of recruitment of District Judges and other judicial officers, placed reliance on the judgment rendered by this Court in the Kesavananda Bharati case (1973) 4 SCC 225, which took into consideration five of the declared "basic features" of the Constitution, and examined the subject matter in question, by applying the concept of "separation of powers" between the legislature, the executive and the judiciary, which was accepted as an essential feature of the "basic structure" of the Constitution. Finally, reliance was placed on Nawal Kishore Mishra v. High Court of Judicature of Allahabad (2015) 5 SCC 479, wherefrom reliance was placed on conclusion No. 20.11, which is extracted below: 20.11 Any such attempt by the legislature would be forbidden by the constitutional scheme as that was found on the concept relating to separation of powers between the legislature, the executive and the judiciary as well as the fundamental concept of an independent judiciary as both the concepts having been elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme. It was therefore the contention of the learned senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is made, from the all-important silences hidden within those Articles, for instance, the "primacy of the judiciary" explained in the Samsher Singh case (1974) 2 SCC 831 the Sankalchand Himatlal Sheth case (1977) 4 SCC 193 and the Second Judges case, wherein this Court while interpreting Article 74 along with Articles 124, 217 and 222, in conjunction with the intent of the framers of the Constitution gathered from the Constituent Assembly debates, and the conventions adhered to by the political-executive authority in the matter of appointment and transfer of Judges of the higher judiciary, arrived at the conclusion, that "primacy of the judiciary" was a constituent of the "independence of the judiciary" which was a "basic feature" of the Constitution. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the "basic structure" with reference to the "independence of the judiciary", its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 on the other, (read collectively and harmoniously) constitute the basis thereof. Clearly, the "basic structure" is truly a set of fundamental foundati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. If such a challenge is accepted, on the ground of violation of the "basic structure", it would mean that the bunch of Articles of the Constitution (including the preamble thereof, wherever relevant), which constitute the particular "basic feature", had been violated. We must however credit the contention of the learned Attorney General by accepting, that it would be technically sound to refer to the Articles which are violated, when an ordinary legislation is sought to be struck down, as being ultra vires the provisions of the Constitution. But that would not lead to the inference, that to strike down an ordinary legislative enactment, as being violative of the "basic structure", would be wrong. We therefore find no merit in the contention advanced by the learned Attorney General, but for the technical aspect referred to hereinabove. XIII. 222. Various challenges were raised to the different provisions of the NJAC Act. First and foremost, a challenge was raised to the manner of selection and appointment of the Chief Justice of India. Section 5(1) of the NJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciary, and also, for the independence of the judiciary. It was submitted, that it would be just and appropriate, at the present juncture, to understand the width of the power, so as to prevent any likelihood of its misuse in future. 225. It was suggested, that various ways and means could be devised to supersede senior Judges, to bring in favourites. Past experience had shown, that the executive had abused its authority, when it departed from the above seniority rule in April 1973, by superseding J.M. Shelat, the senior most Judge, and even the next two Judges in the order of seniority after him, namely, K.S. Hegde and A.N. Grover, while appointing the fourth senior most Judge A.N. Ray, as the Chief Justice of India. Again in January 1977 on the retirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, was ignored, and the next senior most Judge M.H. Beg, was appointed as the Chief Justice of India. Such control in the hands of the executive, according to learned Counsel, would cause immense inroads in the decision making process. And could result in, Judges trying to placate and appease the political-executive segment, aimed at personal gains and rewards. 226. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Government and not to his own intrinsic merit, then the independence of the judiciary is inevitably lost. H.R. Khanna, J., (in his book-"Neither Roses Nor Thorns") expressed the position as under: A couple of days before the pronouncement of judgment the atmosphere of tension got aggravated because all kinds of rumours started circulating and the name of the successor of the Chief Justice was not being announced. The announcement came on the radio after the judgment was pronounced and it resulted in the supersession of the three senior judges. I felt extremely perturbed because in my opinion it was bound to generate fear complex or hopes of reward and thus undermine the independence of the judiciary. Immediately on hearing the news I went to the residence of Justice Hegde. I found him somewhat tense, as anyone in that situation would be, but he was otherwise calm. He told me that he, as well as Justice Shelat and Justice Grover who had been superseded, were tendering their resignations. After the resignation of Shelat, Hegde and Grover, the court acquired a new complexion and I found perceptible change in the atmosphere. Many things happened which made one unhappy and I t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of fitness, with the Parliament, was liable to fan ambitions of Judges, and was likely to make the Judges loyal, to those who could satisfy their ambitions. It was therefore emphasized, that Section 5(1), which created an ambiguity, in the matter of appointment to the office of Chief Justice of India, had the trappings of being abused to imperil "independence of the judiciary", and therefore, could not be permitted to remain on the statute-book, irrespective of the assurance of the Attorney General, that for the purpose in hand, the term "fit" meant ".... mental and physical fitness....". 230. It was also contended, that while recommending names for appointment of a Judge to the Supreme Court, the concerned Judges' seniority in the cadre of Judges (of High Courts), was liable to be taken as the primary consideration, coupled with his ability and merit. It was submitted, that the instant mandate contained in the first proviso Under Section 5(2) of the NJAC Act, clearly breached the convention of regional representation in the Supreme Court. Since the "federal character", of distribution of powers, was also one of the recognized "basic structures", it was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eters, in the Bill which followed the Bill, that led to the promulgation of the impugned Constitution (99th Amendment) Act, it was submitted, that the omission of a quorum for the functioning of the NJAC, and the omission of quantifying the strength required for valid decision making, vitiated the provision itself. 233. The contention advanced at the hands of the learned Counsel for the Petitioners, as has been noticed in the foregoing paragraph, does not require any detailed examination, as the existing declared legal position, is clear and unambiguous. In this behalf, it may be recorded, that in case a statutory provision vests a decision making authority in a body of persons without stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision making. On the same analogy therefore, a valid decision by such a body will necessitate a decision by a simple majority of all the members of the body. If the aforesaid principles are made applicable to the NJAC, the natural outcome would be, that a valid meeting of the NJAC must have at least four Members participating in a six-Member NJAC. Like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld resile from the statement made by the then Attorney General, before the Bench hearing the Third Judges case, that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case (that, it had accepted to treat as binding, the decision in the Second Judges case). And yet, during the course of hearing of the present case, the Union of India did seek a reconsideration of the Second Judges case. 236. Insofar as the challenge to Section 5(1) of the NJAC Act is concerned, we are satisfied to affirm and crystalise the position adopted by the Attorney General, namely, that the term "fit" used in Section 5(1) would be read to mean only ".... mental and physical fitness....". If that is done, it would be legal and constitutional. However, if the position adopted breached the "independence of the judiciary", in the manner suggested by the learned Counsel for the Petitioners, the same would be assailable in law. 237. We will now endeavour, to address the second submission with reference to Section 5 of the NJAC Act. Undoubtedly, postulating "seniority" in the first proviso Under Section 5(2) of the NJAC Act, is a laudable objective. And if seniori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies to appointment of a Judge of a High Court as Chief Justice of a High Court. It has the same seniority connotation as has been expressed hereinabove, with reference to the first proviso Under Section 5(2). For exactly the same reasons as have been noticed above, based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court. Section 6(1) of the NJAC Act was therefore liable to meet the same fate, as the first proviso Under Section 5(2). 239. We are also of the considered view, that the power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). Details in this behalf have already been recorded in part VIII hereinabove. Section 6(6) of the NJAC Act, has the same connotation as the second proviso Under Section 5(2), and Section 6(6) of the NJAC Act would therefore meet the same fate, as Section 5(2). For the reasons recorded hereinabove, we are satisfied, that Sections 5(2) and 6(6) of the NJAC Act also breach the "basic structure" of the Constitution, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, in the Department of Justice, to be the convener of the NJAC. It was contended, that the function of a convener, with reference to the NJAC, would entail the responsibility of inter alia preparing the agenda for the meetings of the NJAC, namely, to decide the names of the individuals to be taken up for consideration, in the next meeting. This would also include, the decision to ignore names from being taken up for consideration in the next meeting. He may include or exclude names from consideration, at the behest of his superior. It would also be the responsibility of the convener, to compile data made available from various quarters, as contemplated under the NJAC Act, and in addition thereto, as may be required by the Union Minister in charge of Law and Justice, and the Chief Justice of India. It was submitted, that such an onerous responsibility, could not be left to the executive alone, because material could be selectively placed by the convener before the NJAC, in deference to the desire of his superior-the Union Minister in charge of Law and Justice, by excluding favourable material, with reference to a candidate considered unsuitable by the executive, and by excluding un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revive, if the impugned constitutional amendment was to be set aside, as being violative of the "basic structure" of the Constitution? It would be relevant to mention, that the instant issue was not adverted to by the learned Counsel for the Petitioners, possibly on the assumption, that if on a consideration of the present controversy, this Court would strike down the Constitution (99th Amendment) Act, then Articles 124, 127, 128, 217, 222, 224, 224A and 231, as they existed prior to the impugned amendment, would revive. And on such revival, the judgments rendered in the Second and Third Judges cases, would again regulate selections and appointments, as also, transfer of Judges of the higher judiciary. 247. A serious objection to the aforesaid assumption, was raised on behalf of the Respondents by the Solicitor General, who contended, that the striking down of the impugned constitutional amendment, would not result in the revival of the provisions, which had been amended by the Parliament. In order to canvass the aforesaid proposition, reliance was placed on Article 367, which postulates, that the provisions of the General Clauses Act, 1897 had to be applied, for an interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. 249. Relying on Section 6, it was submitted, that the setting aside of the impugned constitutional amendment, should be considered as setting aside of a repealing provision. And as such, the acceptance of the claim of the Petitioners, would not lead to the automatic revival of the provisions as they existed prior to the amendment. Relying on Section 7 it was asserted, that if a repealed provision had to be revived, it was imperative for the legislature to express such intendment, and unless so expressly indicated, the enactment wholly or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct if the second repealing enactment manifests an intention to the contrary.... Having given our thoughtful consideration to the conclusions recorded in the judgment relied upon, we are satisfied, that the same does not support the cause of the Respondents, because in the judgment relied upon, it was clearly concluded, that under the English Common Law when a repealing enactment was repealed by another law, the repeal of the second enactment would revive the former "ab initio". In the above view of the matter, based exclusively on the English Common Law, on the setting aside of the impugned constitutional amendment, the unamended provision, would stand revived. It also needs to be noticed, that the final position to the contrary, expressed in the judgment relied upon, emerged as a consequence of subsequent legislative enactment, made in England, which is inapplicable to India. Having taken the above subsequent amendments into consideration, it was concluded, that the repeal of the repealing enactment would not revive the original enactment, except ".... if the second repealing enactment manifests an intention to the contrary....." In other words, the implication would be, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place. But it must be made clear that the judgment of this Court in Devadasan's case AIR 1964 SC 179, is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule; it does not in any way touch the reservation for scheduled castes and scheduled tribes at 12-1/2% and 5%, respectively; nor does it touch the filling up of schedule tribes vacancies by scheduled caste candidates where sufficient number of scheduled tribes are not available in a particular year or vice versa. The effect of the judgment in Devadasan's case: AIR 1964 SC 179, therefore is only to strike down the carry forward rule and it does not affect the year to year reservation for scheduled castes and scheduled tribes or filling up of scheduled tribe vacancies by a member of scheduled castes in a particular year if a sufficient number of scheduled tribe candidates are not available in that year of vice versa. This adjustment in the reservation between scheduled ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Prohibition Order of 1950 must be held to have been in force in Travancore-Cochin, so that the provisions of Section 73(2) of Act 5 of 1950 would apply to that Order and would continue it in force. This further continuance after Act 5 of 1950, of course, depends on the validity of Section 3 of Act 5 of 1950, because Section 73(2) purported to continue the Order in force under that section, so that we proceed to examine the argument relating to the validity of Section 3 of Act 5 of 1950. A perusal of the conclusion drawn hereinabove, apparently supports the contention advanced at the hands of the Respondents, that if the amendment to an erstwhile legislative enactment, envisages the substitution of an existing provision, the process of substitution must be deemed to comprise of two steps. The first step would envisage, that the old rule would cease to exist, and the second step would envisage, that the new rule had taken the place of the old rule. And as such, even if the new rule was to be declared as invalid, the first step depicted above, namely, that the old rule has ceased to exist, would remain unaltered. Thereby, leading to the inference, that in the present controve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the word "substitution" is to indicate that the process cannot be split up into two pieces like this. If the process described as substitution fails, it is totally ineffective so as to leave intact what was sought to be displaced. That seems to us to be the ordinary and natural meaning of the words "shall be substituted". This part could not become effective without the assent of the Governor-General. The State Governor's assent was insufficient. It could not be inferred that, what was intended was that, in case the substitution failed or proved ineffective, some repeal, not mentioned at all, was brought about and remained effective so as to create what may be described as a vacuum in the statutory law on the subject-matter. Primarily, the question is one of gathering, the intent from the use of words in the enacting provision seen in the light of the procedure gone through. Here, no intention to repeal, without a substitution, is deducible. In other words, there could be no repeal if substitution failed. The two were a part and parcel of a single indivisible process and not bits of a disjointed operation. 19. Looking at the actual procedure which was gone through, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been followed in toto. In the case of any rule contained in an executive instruction, on the other hand, the repeal as well as displacement are capable of being achieved and inferred from a bare issue of fresh instructions on the same subject. 21. In Mehtab Majid & Company's case a statutory role was held not to have revived after it was sought to be substituted by another held to be invalid. This was also a case in which no elaborate legislative procedure was prescribed for a repeal as it is in the case of statutory enactment of statutes by legislatures. In every case, it is a question of intention to be gathered from the language as well as the acts of the rule-making or legislating authority in the context in which these occur. 22. A principle of construction contained now in a statutory provision made in England since 1850 has been: Where an Act passed after 1850 repeals wholly or partially any former enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into operation. (See: Halsbury's Laws of England, Third Edn. Vol. 36, P. 474; Craies on "Statute Law", 6th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout competence would have the effect of reviving an earlier rule which it professed to supersede. This case again belongs to the category of Mohd. Shaukat Hussain Khan case AIR 1974 SC 1480. It may also be noticed that in Koteswar Vittal Kamath case AIR 1969 SC 504, the ruling in the case of Firm A.T.B. Mehtab Majid and Company AIR 1963 SC 928 has been distinguished. The case of State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd. AIR 1977 SC 879 is again distinguishable. In this case the whole legislative process termed substitution was abortive, because, it did not take effect for want of the assent of the Governor-General and the Court distinguished that case from Tiwari case AIR 1965 SC 1430. We may also state that the legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, 'substitution', or 'supersession'. It depends upon the totality of circumstances and the context in which they are used. What needs to be noticed from the extract reproduced above is, that this Court in the above judgment clearly concluded, that the legal effect on an earlier law, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute. Again, such intention may be explicit or implicit. The questions, therefore, that arise for determination are: Whether in relation to cigarettes, the 1941 Act was repealed by the 1954 Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act were repealing enactments? Whether there is anything in the 1954 Act and the 1958 Act indicating a revival of the 1941 Act in relation to cigarettes? 16. It is now well settled that "repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be considered (except as to transactions past and closed) as if it had never existed". (Per Tindal, C.J. in Kay v. Goodwin (1830) 6 Bing 576, 582 and Lord Tenterdon in Surtees v. Ellison (1829) 9 B and C 750, 752 cited with approval in State of Orissa v. M.A. Tulloch and Co. AIR 1964 SC 1284). 17. Repeal is not a matter of mere from but one of substance, depending upon the intention of the Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. v. Special Chief Secretary (2006) 3 SCC 354, the Hirendra Pal Singh case: (2011) 5 SCC 305, the Joint Action Committee of Air Line Pilots' Associations of India case: (2011) 5 SCC 435, and the K. Shyam Sunder case (2011) 8 SCC 737. The conclusions drawn in the above noted judgments were either based on the judgments already dealt with by us hereinabove, or on general principles. It is not necessary to examine all the above judgments, by expressly taking note of the observations recorded in each of them. 251. Even though we have already recorded our determination with reference to the judgments cited by the learned Solicitor General, it is imperative for us to record, that it is evident from the conclusions returned in the Central Provinces Manganese Ore Company Ltd. Case (1977) 1 SCC 643, that in the facts and circumstances of the present case, it would have to be kept in mind, that if the construction suggested by the learned Solicitor General was to be adopted, it would result in the creation of a void. We say so, because if neither the impugned constitutional provision, nor the amended provisions of the Constitution would survive, it would lead to a breakdown of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals, that it is composed of the following: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of Supreme Court, next to the Chief Justice of India-Members, ex officio; (c) the Union Minister in charge of Law and Justice-Member, ex officio; (d) two eminent persons, to be nominated-Members. If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the hands of the learned Counsel for the rival parties, I have arrived at the conclusion, that Clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, Clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby struck down. In view of the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution. VII. ACKNOWLEDGEMENT: 257. Before parting with the order, I would like to record my appreciation for the ablest assistance rendered to us, by the learned Counsel who addressed us from both the sides. I would also like to extend my deepest sense of appreciation to all the assisting counsel, who had obviously whole heartedly devoted their time and energy in the preparation of the case, and in instructing the arguing counsel. I would be failing in my duty, if I do not express my gratitude to my colleagues on the Bench, as also, learned Counsel who agreed to assist the Bench, during the summer vacation. I therefore, express my gratefulness and indebtedness to them, from the bottom of my heart. ORDER OF THE COURT 1. The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases (1993) 4 SCC 441, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right answer to the objection raised by Shri Fali S. Nariman. 4. The matter was listed again on 22.04.2015 on which date Shri Nariman filed a brief written statement [The position of the Presiding Judge on this Bench hearing these cases of constitutional challenge is not consistent with (and apparently conflicts with) his position as a member of the 'Collegium'; and is likely to be seen as such; always bearing in mind that if the Constitution Amendment and the statute pertaining thereto are held constitutionally valid and are upheld, the present Presiding Judge would no longer be part of the Collegium-The Collegium, it must be acknowledged exercises significant constitutional power.] indicating reasons which according to him make it inappropriate for Justice Khehar to preside over the present Bench. 5. On the other hand, Shri Arvind P. Datar, learned senior Counsel appearing for one of the Petitioners made elaborate submissions explaining the legal principles which require a Judge to recuse himself from hearing a particular case and submitted that in the light of settled principles of law in this regard there is neither impropriety in Justice Khehar hearing these matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge. 11. It all started with a latin maxim Nemo Judex In Re: Sua which means literally-that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said "If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them. For without that, the controversies of men cannot be determined but by war. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war." 12. Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled "Judicial Recusal" [R. Grant Hammond, Judicial Recusal: Principles, Process and Problems, (Hart Publishing, 2009)]. traced out principles on the law of recusal as developed in England in the following words: The cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence. 14. Summing up the principle laid down by the abovementioned case, Hammond observed as follows: The 'no-pecuniary interest' principle as expressed in Dimes requires a judge to be automatically disqualified when there is neither actual bias nor even an apprehension of bias on the part of that judge. The fundamental philosophical underpinning of Dimes is therefore predicated on a conflict of interest approach. 15. The next landmark case on the question of "bias" is Regina v. Gough (1993) AC 646. Gough was convicted for an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the Trial Court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the Trial Court that one of the jurors was a neighbour of the convict. The convict appealed to the Court of Appeal unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him. 19. Lord Woolf agreed with Lord Goff in his separate judgment. He held: There is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal 3 H.L. Case 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist. 20. In substance, the Court held that in cases where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial. In my judgment, this case falls within the first category of case, viz. where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "real danger" or "reasonable apprehension" of bias. 3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case. 27. It is nobody's case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the above-mentioned categories. By the very nature of the case, no such interest can arise at all. 28. The question is whether the principle of law laid down in Pinochet case is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of opinion between the parties is regarding the process by which such a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote. 29. The implication of Shri Nariman's submission is that Justice Khehar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, while the members of the Collegium are required to exercise such "significant power" with respect to each and every appointment of the above-mentioned categories, the other Judges of this Court are required to exercise such "significant power", at least with respect to the appointments to or from the High Court with which they were earlier associated with either as judges or Chief Justices. The argument of Shri Nariman, if accepted would render all the Judges of this Court disqualified from hearing the present controversy. A result not legally permitted by the "doctrine of necessity". 33. For the above-mentioned reasons, we reject the submission that Justice Khehar should recuse from the proceedings. Chelameswar, J. 1. We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess for filling up vacancies was being initiated by the Chief Justice of the concerned High Court or the CJI, as the case may be. Such a procedure was stipulated by a memorandum of the Government of India [The details of which are already noted in the judgment of my brother Khehar, J.]. After the AMENDMENT 4. Articles 124 and 217 insofar as they are relevant for our purpose read Article 124 xxx (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 referred to in Article 124A, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years. 5. The AMENDMENT inserted Articles 124A, 124B an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew body called the National Judicial Appointments Commission (hereinafter referred to as NJAC). It consists of six members. The CJI is its ex-officio Chairperson. Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister are also ex-officio members, apart from two eminent persons to be nominated by a Committee contemplated in Article 124A(1)(d). 7. Under Article 124B, the NJAC is charged with the duty of recommending persons of ability and integrity for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts and of recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. 8. Article 124C authorizes Parliament to regulate by law, the procedure for the appointment of Chief Justice and other Judges of the Supreme Court etc. It also empowers the NJAC to make Regulations laying down the procedure for the discharge of its functions. 9. Pursuant to the mandate of Article 124C, Parliament made the ACT. For the present, suffice it to note that though the amended text of the Constitution does not so provide, Section 6(6) [Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hyperbole in those statements. Even those who are really waiting, I am sure, have concerns which vary from person to person. Inquisitiveness regarding the jurisprudential and political correctness, impact on the future of the judiciary, assessment of political and personal fortunes etc. could be some of those concerns. I am only reminded of Justice Fazal Ali's view in S.P. Gupta v. Union of India and Ors. AIR 1982 SC 149 (for short S.P. Gupta case) ["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 abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only has authority to govern but also certain legally enforceable obligations to its subjects. The authority of judicial fora to command the State to discharge its obligations flows from the existence of such enforceable obligations. To generate confidence that the judicial fora decide controversies brought to their consideration impartially, they are required to be independent. Notwithstanding the fact that they are established and organized by the State as a part of its larger obligation to govern. 18. Judiciary is the watchdog of the Constitution and its fundamental values. It is also said to be the lifeblood of constitutionalism in democratic societies. At least since Marbury v. Madison 5 U.S. 137 (1803) the authority of courts functioning under a written democratic constitution takes within its sweep the power to declare unconstitutional even laws made by the legislature. It is a formidable authority necessarily implying an awesome responsibility. A wise exercise of such power requires an efficient and independent Judge (Judicial System). In the context, wisdom is to perceive with precision whether the legislative action struck the constitutionally demanded balance between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Crown had the power to dismiss the judges at will. The Act of Settlement, 1701 [".judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of parliament it may be lawful to remove them." This clause has been repealed by ____] removed from the Crown the power to dismiss Judges of the Superior Courts at will. It enabled the Monarch to remove Judges from office upon address of both Houses of Parliament. Interestingly till 1720 Judges ceased to hold office on the death of the Monarch who issued Commissions. A 1720 enactment provided that Judges should continue in office for six months after demise of the monarch. In 1761 a statute provided that commissions of the Judges shall remain in full force and effect during good behaviour notwithstanding the demise of His Majesty or of any of his heirs and successors-thus granting a life tenure. According to Blackstone, (I) In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Empire Ever since, the British Crown started asserting sovereignty over the territory of India, the British Parliament made Acts which provided legal framework for the governance of India from time to time known as Government of India Acts. The last of which was of 1935. Canada [The British North America Act, 1867 renamed by the Amendment in 1982 as the Constitution Act, 1867] and Australia [Commonwealth of Australia Constitution Act, 1900.] which were also part of the British Empire continue to be governed by Constitutions enacted by the British Parliament. We framed a new Constitution through a Constituent Assembly. 26. Members of the Constituent Assembly in general and the Drafting Committee in particular were men and women of great political experience, deep insight into human nature, and a profound comprehension of the complex problems of Indian Society. They spearheaded the freedom movement. They were well versed in history, law, political sciences and democratic practices. They examined the various constitutional systems in vogue in different democratic societies inter alia American, Australian, British and Canadian and adopted different features from different constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in office is not subject to any election process; II. the termination of judicial appointment (during subsistence of the tenure) is made virtually impossible. The Constitution prescribes that a Judge of CONSTITUTIONAL COURT shall not be removed from office except by following an elaborate procedure of impeachment prescribed Under Article 124(4) [Article 124(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.]. which is applicable even for High Court Judges by virtue of Article 217(1)(b) [Article 217(1)(b) A Judge may be removed from his office by the President in the manner provided in Clause (4) of Article 124 for the removal of a Judge of the Supreme Court;] III. The salaries, privileges, allowances and rights in respect of leave of absence and pension of Judges of the CONSTITUTIONAL COURT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e minded lackeys and are considerably irritated by independent Judges functioning in an independent manner."]. Such temptation coupled with the fact that the State has the legal authority to make laws including the laws that determine the process of selection of judges and their service conditions can pose the greatest threat to the independence of the judiciary if such law making authority is without any limitations. Therefore, extraordinary safeguards to protect the tenure and service conditions of the members of the judiciary are provided in the Constitution; with a fond hope that men and women, who hold judicial offices so protected will be able to discharge their functions with absolute independence and efficiency. 30. However, any amount of legal and institutional protection will not supply the necessary independence and efficiency to individuals if inherently they are lacking in them. Where every aspect of judge's service is protected by the Constitution, the only way governments can think of gaining some control over the judiciary is by making an effort to appoint persons who are inherently pliable. There are various factors which make a Judge pliable. Some of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the judicature. Section 101 [Section 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.] only authorises the Parliament of Canada to provide for the constitution, maintenance and organisation of a general court of appeal of Canada and for the establishment of any additional courts for the better administration of the laws of Canada. It is in exercise of such power, the Parliament of Canada in 1875 by a statute, (the Supreme and Exchequer Courts Act, 1875 [Now replaced by Supreme Court Act, 1985.]) established the Supreme Court of Canada. The Supreme Court of Canada's existence, its composition and jurisdiction depend upon an ordinary federal statute and these underwent many changes over time. In theory, the Court could be abolished by unilateral action of the Federal Parliament. Judges of the Supreme Court are appointed by the Governor in Council (the federal cabinet) in exercise of the power conferred Under Section 2 of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles 124 and 217 (as they stood prior to the AMENDMENT), would ensure requisite independence and competence of the judiciary and such arrangements would be sufficient for the "moment". 39. Till 1977, the true meaning and amplitude of the expression consultation occurring in Articles 124 and 217 of the Constitution of India troubled neither the executive nor the judiciary. There had always been a consultation between the constitutional functionaries. Appointments were made without much controversy. This Court in Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 (hereinafter referred to as the Second Judges case) recorded so [Para 371 "........ (iii) All the appointments to the Supreme Court from 1950 to 1959 were made with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to the High Courts during that period were also with the concurrence of the Chief Justice of India. (iv) Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor of the Parliament on November 24, 1959 that appointment of Judges were virtually being made by the Chief Justice of India and the Executive was only an order-issuing authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer [Para 41 of Sankalchand case-Chandrachud, J.]. After recording such a conclusion, His Lordship went on to observe as follows: 41........... But it is necessary to reiterate what Bhagwati and Krishna Iyer JJ. said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India. "In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order." (page 873). It is hoped that these words will not fall on deaf ears and since normalcy has now been restored, the differences, if any, between the executive and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted from the abovementioned case is that all the 16 transfers were made in consultation with the then CJI. Within a year thereafter, in March 1977, general elections took place and a new political party came to power. The Government on a re-examination of the matter opined that there was no justification for transferring Justice Sheth from Gujarat. It is a matter of history that all 16 Judges who were transferred during emergency, were sent back to their parent High Courts along with Justice Sheth [Per Fazal Ali, J.-S.P. Gupta case, p. 403-"It is true that there were, quite a few transfers during the emergency which were not in consonance with the spirit of Article 222 and that is why the Government had conceded this fact and took steps to revoke the transfers by retransferring, almost all the Judges to the High Courts from where they had been transferred."]. This fact is significant in the context of the argument that permitting the executive to have any say in the matter of appointment of Judges to Constitutional Courts would be destructive of independence of the judiciary. 44. Within three years thereafter, another significant event in the constitutional history of this countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification for reduction of the sanctioned strength."]. Even, the appointment process of High Court Judges was taking unreasonably long periods on legally untenable grounds [Para 19. "For the present we suggest to government that the matter should be reviewed from time to time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of the existing need. If there be no correlation between the need and the sanctioned strength and the provision of Judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law........."]. A three Judge Bench of this Court in Subhash Sharma v. Union of India (1991) Supp. 1 SCC 574 (for short Subhash Sharma case) took note of such a situation. 46. There was a turmoil with regard to appointment of Judges of CONSTITUTIONAL COURTS in 1970s and 1980s. Senior Judges were superseded for appointment to the office of CJI. Perhaps, emboldened by judgments of this Court in Sankalchand and S.P. Gupta the executive (at the National as well as the State level) resorted to unhealthy manipulation of the system. The Informal Constitution: Unwritten Criteria in Select ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve scenario whether true or partially true formed the backdrop of the observations made in Subhash Sharma case (supra). As a consequence, the Bench thought it fit that the correctness of S.P. Gupta case should be considered by a larger Bench. 49........... majority view in S.P. Gupta's case should be considered by a larger Bench we direct the papers of W.P. No. 1303 of 1987 to be placed before the learned Chief Justice for constituting a Bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength......... 48. This led to the Second Judges case. The matter was heard by nine Judges. Five separate judgments were delivered. Justice Verma spoke for five of them. Justice Pandian and Justice Kuldip Singh wrote separate judgments but agreed with the conclusions of Justice Verma, but Justice Ahmadi and Justice Punchhi did not. One proposition on which all nine Judges were unanimous is that under the scheme of the Constitution, independence of judiciary is indispensable. Justice Verma categorically held that it is a part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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."] under the Third Schedule to the Constitution of India. 50. However, structurally there are many indications in the scheme of the Constitution which lead to an unquestionable inference that the Framers of the Constitution desired to have a judiciary which is absolutely independent of the Executive and insulated from vagaries of transient and shifting majoritarian dynamics. Under the scheme of the Constitution, State Legislatures have absolutely no role in matters pertaining to the establishment of CONSTITUTIONAL COURTS of this country. Parliament alone is authorized to deal with certain aspects of the establishment of the CONSTITUTIONAL COURTS and their administration such as fixation of the strength of the courts, salaries and other service conditions of the judges etc. Termination of an appointment made to a CONSTITUTIONAL COURT can be done only through the process of impeachment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e independence of judiciary. To say differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of judges and, secondly, protected by the fulfilment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of judges will secure and protect the independence of the judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper functioning of democracy and the philosophy of this cherished concept will be only a myth rather than a reality." (per Hon. Kuldip Singh, J.)-Para 335. "Then the question which comes up for consideration is, can there be an independent judiciary when the power of appointment of judges vests in the executive? To say yes, would be illogical. The independence of judiciary is inextricably linked and connected with the constitutional process of appointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the Constituent Assembly consciously excluded any role to the Parliament in the process of appointments, a conscious departure from the American Constitutional model where Federal Judicial appointments are subject to consent of the Senate. 52. In the background of such an analysis, consultation with the Chief Justice of India in Articles 124 and 217 was interpreted as conferring primacy to the opinion of CJI. Consultation with the CJI was part of a design of the Constituent Assembly to deny unfettered authority (to the union executive) to appoint Judges of the CONSTITUTIONAL COURTS. The Constituent Assembly did not choose to vest such controlling power in the Parliament to which the Executive is otherwise accountable under the scheme of the Constitution. This Court, therefore, concluded that without primacy to the opinion of CJI the whole consultation process contemplated Under Articles 124 and 217 would only become ornamental enabling the executive to make appointments in its absolute discretion, most likely based on considerations of political expediency. Such a process would be antithetical to the constitutional goal of establishing an independent judiciary. However, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedure confers upon the Judiciary itself the power for appointment of Judges. (Emphasis supplied) 54. There are conflicting opinions [See the articles of Lord Templeman's favourable opinion and the critical view of Lord Cooke of Thorndon published in the book titled Supreme but not Infallible - Oxford University Press - 2000 A.D. "Article 124 of the Constitution empowers the President (acting on the advice of the Prime Minister and Cabinet) to appoint the judges of the Supreme Court. The President is given a discretion about consulting judges of the Supreme Court and High Courts but in the case of appointments of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Similarly, Article 217 requires the Chief Justice of India to be consulted concerning the appointment of a judge of the High Court of a state. In 1993, in the Supreme Court Advocates on Record Association case the Supreme Court by a majority held that, having regard to the independence of the judiciary and the separation of powers which the Court held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter referred to as 'Third Judges case'). Unfortunately, the factual matrix on which doubts were entertained by the Government of India are not recorded in the opinion. But para 41 of the Third Judges case records: 41. ...We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion. 57. No wonder, gossip and speculations gather momentum and currency in such state of affairs. If a nine-Judge Bench of this Court takes an optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all at least in some cases attracting comments. Instead of Ministers, Judges patronised. [Iyer, V.R. Krishna, Judiciary: A reform agenda -II, The Hindu (online edition) 15.08.2002] 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation 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.]. It is only by inference such a conclusion can be reached. Even the conclusion recorded by this Court does not really throw any light. In para 22 of the judgment of this Court it is recorded as follows: 22. The position is almost undisputed that on 17.3.2005 the then Chief Justice of India recommended for extension of term of 8 out of 9 persons named as Additional Judges for a further period of four months w.e.f. 3.4.2005. On 29.4.2005 the collegium including the then Chief Justice of India was of the view that name of Respondent 2 cannot be recommended along with another Judge for confirmation as permanent Judge. Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or permanent Judge; the then Chief Justice should have stuck to the view expressed by the collegium and should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not necessarily always been in the best interests of the institution and the nation. It is not really necessary to place on record all the details but it is sufficient to mention that the earlier mentioned two cases are not certainly the only examples of the inappropriate exercise of the power of the Collegium. 63. I am aware that a few bad examples of the improper exercise of the power does not determine the character of the power. Such inappropriate exercise of the power was resorted to also by the Executive already noticed earlier. Both branches of government are accusing each other of not being worthy of trust. [Mehta, Pratap Bhanu, 'Whom do you trust', The Indian Express, May 14, 2015 - "The implicit constitutional accusation is this. The judiciary had, through improvisation, created a method of appointing judges that effectively sidelined other branches of government. This arrangement was tolerated, not because it conformed to a constitutional text or some hallowed principle, but because it seemed to maintain judicial independence. The experience of the 1970s made the prospect of political packing of the judiciary a live fear. This arrangement is being challenged, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts Under Article 226 and in this Court Under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious models and institutional mechanisms in vogue under various democratic Constitutions for appointment of the members of the superior judiciary. The Constituent Assembly was told by Dr. Ambedkar that the model, such as the one contained in Articles 124 and 217 (as they stood prior to the AMENDMENT)-may be regarded as sufficient for the moment. Various alternative models suggested by the members were not accepted.[On 24th May 1949 while draft Article 103 of the draft Constitution was being discussed corresponding to present Article 124, four members, Prof. Shibban Lal Saksena and Prof. K.T. Shah, who represented the United Provinces of Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who represented Madras Provinces suggested amendments to Article 103, the relevant portions of which read as follows: "Prof. Shibban Lal Saksena: That for Clause (2) of Article 103, the following clauses be substituted- (2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the Houses of Parliament." "Prof. K.T. Shah: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etent to amend the Constitution and create an alternative mechanism for selection and appointment of the members of CONSTITUTIONAL COURTS of this country. 68. The basic objection for the impugned AMENDMENT is that it is destructive of the Constitutional objective of establishment of an independent judiciary, and consequently the basic structure of the Constitution. Therefore, it falls foul of the law laid down by this Court in Bharati case. 69. To decide the correctness of the submission, it is necessary: (1) to identify the ratio decidendi of Bharati case where the theory of "basic structure" and "basic features" originated. (2) Whether the expressions "basic features" and "basic structure" of the Constitution are synonyms or do they convey different ideas or concepts? If so, what are the ideas they convey? (3) Have they been clearly identified by earlier decisions of this Court? (4) Are there any principles of law laid down by this Court to identify the basic features of the Constitution? (5) If the two expressions "basic features" and "basic structure" mean two different things, is it the destruction of any one of them which renders any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution." (Per Shelat, J. who spoke for himself and Grover, J.)-Paras 582, 583, "there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. These cannot be catalogued but can only be illustrated: (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, the executive and the judiciary. (5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation." and, therefore, "the power Under Article 368 is wide enough to permit amendment of each and every article.... so long as its basic elements are not abrogated or denuded of their identity". (Per Hegde, J, who also spoke for Mukherjea, J.)-Para 666, "Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625, Justice Chandrachud, speaking for the majority of the Constitution Bench, observed that para No. 2 of the summary signed by the nine Judges correctly reflects the majority view. 12. The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution". Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view. (Emphasis supplied) 73. Again in Waman Rao and Ors. etc. etc. v. Union of India and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate and special provisions as to elections to Parliament of the Prime Minister and the speaker, it destroyed the basic structure of the Constitution. Ray, C.J. based his decision on the ground that the 39th Amendment by which Article 329-A was introduced violated the Rule of Law (p. 418) (SCC p. 44); Khanna, J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471) (SCC pp. 87 and 91); Mathew, J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p. 513) (SCC p. 127) and that it damaged the democratic structure of the Constitution (p. 515) (SCC p. 129); while one of us, Chandrachud, J., held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is a basic feature of the Constitution (pp. 663-65) (SCC p. 257)."] 75. Four out of the five Judges agreed upon the conclusion that the impugned amendment was destructive of the basic structure of the Constitution. Each one of the Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend. (Emphasis supplied) The issue arising from the amendment to Article 31-C was identified to be-whether the directive principles of the State Policy contained in Part-IV can have primacy over the fundamental rights contained in Part-III of the Constitution-because the 42nd amendment sought to subordinate the fundamental rights conferred by Articles 14 and 19 to the directive principles. This Court formulated the question-whether such an amendment was within the amendatory power of the Parliament in view of the law laid down by this Court in Bharati case. The Court propounded that: 41........ It is only if the rights conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e book so as to be available in respect of laws of other categories. We must therefore conclude that the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall Under Clause (a) is total and complete, that is to say, the application of those Articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit of Clause (a). We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution. (Para 14) (Emphasis supplied) But this Court finally reached the conclusion that the Amendment did not damage or destroy the basic structure and, therefore, upheld the Amendment [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 des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or may not result in the destruction of the basic structure of the Constitution. It all depends on the context. 79. This Court in S.R. Bommai v. Union of India (1994) 3 SCC 1, recognised the concept of secularism as one of the basic features of the Constitution not because any one of the Articles of the Constitution made any express declaration to that effect but such a conclusion followed from the scheme of the various provisions of the Constitution. [See paras 25 to 29-Ahmadi, J., para 145-Sawant, J., paras 183 to 186-Ramaswamy, J., para 304-Jeevan Reddy, J.] 80. This Court in M. Nagaraj and Ors. v. Union of India and Ors. [In this case, this Court had to decide the validity of the Constitution (Eighty Fifth) Amendment Act 2001 by which Article 16(4A) was amended in the Constitution with retrospective effect. It provided a rule of reservation in the context of the promotion in the Government service. Such an amendment was challenged to be violative of the basic structure of the Constitution.] (2006) 8 SCC 212, deduced the principle that the process of identifying the basic features of the Constitution lies in the identification of some concepts which are beyond the words of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending power of Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure. (Emphasis supplied) 81. In I.R. Coelho (Dead) By L.Rs. v. State of T.N. (2007) 2 SCC 1, this Court ruled; 129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary. 130. Realising that it is necessary to secure the enforcement of the fundamental rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts or obligations or both (for the sake of easy reference I call them "ELEMENTS"). For example, (a) when it is said that the democracy is a basic feature of our Constitution, such a feature, in my opinion, emerges from the various articles of the Constitution which provide for the establishment of the legislative bodies [Articles 79-84 and 168-173] (Parliament and the State Legislatures) and the Articles which prescribe a periodic election to these bodies [Articles 83 and 172] based on adult franchise [Article 326]; the role assigned to these bodies, that is, to make laws for the governance of this Country in their respective spheres [Articles 245 and 246 etc.] , and the establishment of an independent machinery [Article 324] for conducting the periodic elections etc.; (b) the concept of secularism emanates from various articles contained in the fundamental rights chapter like Articles 15 and 16 which prohibits the State from practicing any kind of discrimination on the ground of religion and Articles 25 to 30 which guarantee certain fundamental rights regarding the freedom of religion to every person and the specific mention of such rights with reference to minori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be determined as to when can a constitutional amendment be said to destroy the basic structure of the Constitution. In the case on hand, the identity of the basic feature is not in dispute. The question is whether the AMENDMENT is abrogative of the independence of judiciary-(a basic feature) resulting in the destruction of the basic structure of the Constitution. 88. By the very nature of the basic feature with which we are dealing, it does not confer any fundamental or constitutional right in favour of individuals. It is only a means for securing to the people of India, justice, liberty and equality. It creates a collective right in favour of the polity to have a judiciary which is free from the control of the Executive or the Legislature in its essential function of decision making. 89. The challenge to the AMENDMENT is required to be examined in the light of the preceding discussion. The Petitioners argued that (i) Independence of the judiciary is a basic feature (COMPONENT) of the basic structure of the Constitution; (ii) the process of appointment of members of constitutional courts is an essential ingredient (ELEMENT) of such COMPONENT; (iii) the process prescribed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been debated over a decade. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced on 18th May, 1990 (9th Lok Sabha) providing for the institutional frame work of National Judicial Commission for recommending the appointment of judges to the Supreme Court and the various High Courts. Further, it appears that latterly there is a movement throughout the world to move this function away from the exclusive fiat of the executive and involving some institutional frame work whereunder consultation with the judiciary at some level is provided for before making such appointments. The system of consultation in some form is already it 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned only on limited grounds. They are (i) lack of legislative competence, (ii) the legislation violates any one of the fundamental rights enumerated in Part III of the Constitution, or is in contravention of some other express prohibition of the Constitution. Absent such objectionable features, the possibility that the goal sought to be achieved by the legislation can be achieved through modes other than the one chosen by the legislation can never be a ground for invalidating even an ordinary legislation as has been consistently held by this Court. In the case of a constitutional amendment question of legislative competence in the above-mentioned sense and conflict with the other provisions of the Constitution are irrelevant and does not arise. (iii) Checks and balances of powers conferred by the Constitution on the three great branches of governance-Legislature, Executive and Judiciary is the most basic feature of all democratic constitutions. Absolute independence of any one of the three branches is inconsistent with core democratic values and the scheme of our Constitution. This Court by an interpretative process of the Constitution as it stood prior to the AMENDMENT disturbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent power (Under Article 368) considered it appropriate that representatives of the Civil Society should be accorded a participatory role in the process of appointments to CONSTITUTIONAL COURTS and that their presence would be a check on potential and consequently ruinous 'trade offs'; (i) between and amongst the three members representing the judiciary and (ii) between the judiciary and the executive; and would accentuate transparency to what had hitherto been an opaque process. Such wisdom of the Parliament in not open to question. It is an established and venerated principle that the Court would not sit in judgment over the wisdom of Parliament even in respect of an ordinary legislation; a constitutional amendment invites a greater degree of deference. (vi) Even under the scheme of the AMENDMENT, judiciary has a pre-dominant role. The apprehension that, under the new dispensation, Executive would have the opportunity of packing the CONSTITUTIONAL COURTS of this country with cronies is illogical and baseless. The presence of three senior most Judges of this Court in the NJAC is a wholesome safeguard against such possibility. Any two of the three Judges can stall such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications." [See Federist No. 51-(Hamilton or Madison) (1788)] (Emphasis supplied) Judges who could decide causes brought before them expeditiously and consistent with applicable principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative or constitutional fundamental for establishment of an independent and efficient judiciary. Such an assumption has been proved to be of doubtful accuracy. It is Parliament's asserted assumption that induction of civil society representation will bring about critically desirable transparency, commitment and participation of the ultimate 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 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 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 basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Sudhanshu Ranjan, 'Justice, Judocracy and Democracy in India: Boundaries and Breaches', p.185-186] 100. Critical analysis of Articles 124, 217 and 124-A and 124-B leads to the position that the Executive Branch of 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 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. 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. Under any constitutional model, primary responsibility to preserve liberties of the people is entrusted to the legislative and executive branches. Such entrustment is predic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apanese 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 difficult times when the political branches cannot be counted on, neither can the Court. [Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11] 103. Our experience is not dissimilar. Judgments in A.K. Gopalan [A.K. Gopalan v. State of Madras AIR 1950 SC 27], Sankalchand [Union of India v. Sankalchand Himatlal Sheth and Anr.: (1977) 4 SCC 193] and ADM Jabalpur [ADM Jabalpur v. S.S. Shukla Etc. Etc. AIR 1976 SC 1207] (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 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. Consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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."], to be a component of the NJAC. 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 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 aspect of the administration of the Nation and lives of its people. In this context, to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations, thereby destroying independence of judiciary; (ii) even assuming that the two eminent persons nominated are absolute political neutrals, but are strangers to the judicial system, they would not be able to make any meaningful 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 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 action. In the context of judicial proceedings, this Court held in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. AIR 1967 SC 1, para 20: 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 courthouse, 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). [Sankalchand case (supra) para 78.] (Emphasis supplied) Replace "transfers" and "President" with "appointments" 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 of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power. Bachawat, J. in I.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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Minister and the Leader of 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 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 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 compromises. The only conceivable 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 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 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. Co. Law Board AIR 1967 SC 295, rejected the submission. 35...The test laid down by this Court in Barium Chemicals Ltd. v. Co. Law Board and subsequent decisions for adjudging the validity of administrative action can have no application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtcomings in the ethical standards of the participants in the selection process. After the AMENDMENT, the obligation is unvaried. The only 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 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 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 scuttle proposals. 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 three judicial members of the NJAC. Such a provision is violative of the basic structure of the Constitution. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry is not required in 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 doctrine of basic structure. 117. Only to indicate but not determine conclusively the 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 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. 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 Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 120. For all the abovementioned reasons, I would upheld the AMENDMENT. However, in view of the majority decision, 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 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 trivial and some profound coupled with bewildering 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, 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 that you may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of judges to the Supreme Court and the High Courts. 3. Having had the benefit of reading the draft judgment 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 99th Constitution Amendment Act but prefer to supplement them 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 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 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 judges in the Indian judiciary, the various alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judiciary. 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 202 PLD 1996 SC 324 (Five Judges Bench). It was observed that ever since 1911 when the Indian High Courts Act was enacted and certainly from 1915/1919 onwards when 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. It was 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 relevant Articles of the Constitution, but the 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 under the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Chief Justice 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. Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the occupant of the office of Head of State and not on the advice of the Federal Ministry. More specifically, the Head of 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 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. [Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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.[http://164.100.47.132/LssNew/constituent/vol4p6. html] 11. There was clearly a divergence of opinion between the Sapru Committee and the Ad hoc Committee on the 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 it to be broad-based involving a panel. 12. However, what is apparent from both the Report of the Sapru Committee and the Report of the Ad hoc Committee is that the executive was not to be involved at all in the process of appointment of judges. This is of considerable significance. [Lay persons were also not included in the consultation process.] Memorandum on the Union Constitution and Draft Clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee 15. The Union Constitution Committee which presented a Report to the Constituent Assembly on 4th 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 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 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 appointment of judges of the Supreme Court and this reads 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 on the Supreme Court; (3) The Union Constitution Committee, 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 draft of the Constitution was placed before the Drafting Committee in October, 1947. 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 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. Conference of Chief Justices 18. Wide publicity was given to the Draft Constitution to enable interested persons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law against any illegal acts or the 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 invasion by the executive power. Unfortunately, however, a tendency has, of late, been noticeable to detract from 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, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificantly, 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 such a procedure was right or wrong was not considered but it was suggested that in the event of such a recommendation being made, the concurrence of the Chief Justice of India should be obtained before the appointment is made. The Memorandum proposed that Article 193(1) of the Draft Constitution concerning the appointment of a judge of a High Court should read as under: 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 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the Chief Justice of India was required to be 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 be made after referring the matter to the Chief Justice of India and obtaining his concurrence.' 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 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 in his excellent effort 'The Framing of India's Constitution-A Study' as follows: There was considerable discussion in the Minorities Sub-Committee and in the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India) [Article 103(2) of the Draft Constitution reads: "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a judge, other than the Chief Justice, the Chief Justice of India shall always be consulted."] be modified as follows: (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 (ii) the first proviso to Clause (2) be deleted. [The Framing of India's Constitution-Select Documents, Volume-IV, Page 147.] 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 of India and other judges and then take the advice of the Advisory Board. This was a mixture of the Sapru Committee recommendation of the Head of State (or President as the high office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was absolutely no need for an Instrument of Instructions or an 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 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 emphasized at this stage that when the debate took place on 23rd and 24th May, 1949 it was 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 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 President of the Constituent Assembly was informed by Mr. T.T. Krishnamachari that Schedule III-A is not being moved and that it could be taken out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. [http://parliamentofindia.nic.in/ls/debates/vol10p4. htm] 37. On the basis of the above discussion, Schedule IV to the Draft Constitution was deleted and a motion to that effect was adopted. 38. Thereafter on 14th October, 1949 an amendment 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 III-A was not moved, this clause becomes superfluous and therefore its omission was moved. The amendment to omit Clause (5)a of Article 62of 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 obligations and constitutional conventions: Every Constitution, so far as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with the interpretation of the judicial organ created by the Constitution. Shri H V. Kamath: 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. [http://parliamentofindia.nic.in/ls/debates/vol10p7c.htm] Referring to this extremely important exposition, Granville Austin concludes: From this, one is forced to deduce that Ambedkar and the members of the Drafting Committee, perhaps under pressure from Nehru or Patel, had come to the conclusion 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, conventions were the tidiest and the simplest way of limiting Executive authority. [Indian Constitution-Cornerstone of a Nation, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court should not be made to feel that their 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that these amendments were moved unmindful of the insertion of Clause (5)a in Article 62 of the Draft Constitution and Schedule III-A thereto. 42. Be that as it may, there appears to have been some discordance in the views and perception of different persons on the exact role of the President in the process of appointment of judges. Is the President expected to act on the advice of the Council of Ministers or in his/her personal capacity? 43. One view, as expressed by Dr. Ambedkar was that the President would be guided by the Council of Ministers. The other view or perception was that with the insertion of Clause (5)a in Article 62 of the Draft Constitution and Schedule III-A the President was to act in his/her individual capacity and not be guided by the Council of Ministers since the executive was to be kept completely out of the appointment process. It is not clear which of the two views found favour with Mr. B. Pocker Sahib and Mr. Mahboob Ali Baig Sahib-but both were clear that the President could be put under political or party pressure in the recommendation of a person for appointment and that this should be avoided and the pressure could be negated by the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment. With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the senti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, despite his eminence, had all the failings, sentiments and prejudices of common people and to confer on him a power of veto, which is not vested in the President or the Government of the day (that is the executive), would be a 'dangerous proposition'. 49. Dr. Ambedkar was of the view that neither the President nor the Government of the day (the executive) nor the Chief Justice of India should have the final word in the matter of the appointment of judges. Who then would have the final say in the event of a difference of opinion between the President or the Government of the day or the Chief Justice of India on the appointment of a particular person as a judge? Dr. Ambedkar did not directly address this question since he did not visualize a stalemate arising in this regard. 50. A small diversion-apart from the reasons already mentioned for keeping the executive out of the decision-taking process in the appointment of judges, it would be of interest to know that, on a different topic altogether, while replying to the debate 'on acceptance of office by members of the judiciary after retirement' Dr. Ambedkar observed that the judiciary is very rarely engaged in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the individual citizen is subject to controls imposed by the executive in respect of almost every aspect of life. The authority to impose most of those controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected. [https://www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/lord-phillips-transcript.pdf] Summation 54. The discussion leading up to the Constituent Assembly Debates and relating to the appointment of judges clearly brings out that: (1) The independence of the judiciary was unflinchingly accepted by all policy and decision makers; (2) The appointment of judges of the Supreme Court and the High Courts was to be through a consultative process between the President and the Chief Justice of India, neither of whom had unfettered discretion in the matter; (3) In any eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only to highlight the complexity of the issue and the constant search for some stability and certainty in the appointment process in relation to the independence of the judiciary. It has been said with regard to the selection of judges in the United States, and this would equally apply to our country: It is fairly certain that no single subject has consumed as many pages in law reviews and law-related publications over the past 50 years as the subject of judicial selection.[Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting Philip Dubois).] (a) 14th Report-26.9.1958 Appointment of judges of the Supreme Court 56. Within less than a decade of the promulgation of the Constitution, the process of appointment of judges of the Supreme Court and the High Courts came in for sharp criticism from the LCI. Chapter 5 and Chapter 6 of the 14th Report of the LCI relating, inter alia, to the appointment of judges to the Supreme Court and judges to the High Courts respectively makes for some sad reading, more particularly since the Attorney-General for India was the Chair of the LCI. [The Report is titled & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons should play no part in the making of appointments to the Supreme Court.' However, the LCI did not proffer any solution to the vexed issue of making more satisfactory appointments to the Supreme Court. Appointment of judges of the High Courts 61. Similarly, Chapter 6 of the Report concerning the appointment of judges to the High Courts makes for equally sad reading. The inadequacies in the appointments made were pointed out as: (1) The selections have been unsatisfactory and induced by executive influence. (2) There is no recognizable principle for making the appointments and considerations of political expediency or regional or communal sentiments have played a role. (3) Merit has been ignored in making appointments. 62. It was said that these inadequacies were well founded and there was acute public dissatisfaction with the appointments made: We have visited all the High Court centres and on all hands we have heard bitter and reviling criticism about the appointments made to High Court judiciary give in recent years. This criticism has been made by Supreme Court Judges, High Court Judges, Retired Judges, Public Prosecutors numerous representatives, associations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 11] 64. The LCI recorded that no less a personage than the Chief Justice of India had this to say about executive interference in the appointment of judges to the High Courts (for reasons other than merit): The Chief Minister now has a hand direct or indirect in the matter of the appointment to the High Court Bench. The inevitable result has been that the High Court appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations, and likes and dislikes have a free play. This necessarily encourages canvassing which, I am sorry to say, has become the order of the day. The Chief Minister holding a political office dependent on the goodwill of his party followers may well be induced to listen and give way to canvassing. The Chief Justice on the other hand does not hold his office on sufferance of any party and he knows the advocates and their merits and demerits and a recommendation by the Chief Justice is therefore more likely to be on merit alone that the one made by the Chief Minister who may know nothing about the comparative legal acumen of the advocates. Chapter 6 paragraph 14 65. To conclude this aspect, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment. This recommendation was made so that, in future, no appointment could be made without the concurrence of the Chief Justice of India. 68. The Report was considered in Parliament on 23rd, 24th and 25th November, 1959 and the Government of the day gave its point of view, as did several Hon'ble Members. But what is more important is that in the debate on 24th November, 1959 it was stated by Shri Govind Ballabh Pant, Hon'ble Minister of Home Affairs that since 1950, as many as 211 judges were appointed to the High Courts and out of these except one 'were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the Government had the support of all persons who were connected with this matter.'[Page 287] 69. A little later it was stated: But as I said, these 196 appointments were made in accordance with the unanimous advice of the Chief Justice of the High Court, the Chief Minister of the State, the Governor and the Chief Justice of India. There were fifteen cases in which there was a difference of opinion between the Chief Justice and the Chief Minister or the Governor. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the Bar and that the effect of an improper appointment is felt not only for the time being but its repercussions are felt long thereafter. [Paragraphs 2.2 to 2.5 are relevant in this context] 75. In this background, and in relation to the appointment of judges of the Supreme Court, it was concluded that (1) Only persons who enjoy the highest reputation for independence, dispassionate approach and detachment should be elevated to the Supreme Court. (2) No one should be appointed a judge of the Supreme Court unless he has severed affiliations with political parties for at least 7 (seven) years. (3) A person should be appointed as a judge if he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice, bias or leaning. [Chapter 7] 76. Significantly, the LCI recommended adopting a consultative process in that the Chief Justice of India should consult his three senior-most colleagues while making a recommendation for an appointment. He should reproduce their views while making the recommendation. This would minimize the chances of any possible arbitrariness or favouritism.[This later on became what is commonly called the 'c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to invite the comments of the Chief Justice and send the matter thereafter along with the comments of the Chief Justice, to the Union Minister of Law and Justice. In view of the fact that a decision referred to above has already been taken after due consideration, we need not say anything further in the matter.[Paragraph 6.14] 81. Keeping all these factors in mind, some of the recommendations made by the LCI were as follows: (3) When making a recommendation for appointment of a judge of a High Court, the Chief Justice should consult his two senior most colleagues. The Chief Justice, in his letter recommending the appointment, should state the fact of such consultation and indicate the views of his two colleagues so consulted. (4) Any recommendation of the Chief Justice which carries the concurrence of his two senior most colleagues should normally be accepted. (7) The Commission is, in principle, against selection to the High Court Bench on ground of religion, caste or region. Merit should be the only consideration. Even when matters of State policy make it necessary to give representation to persons belonging to some religion, caste or region, every effor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices of the High Courts in order of their seniority, the Law Minister, the Attorney-General for India and an outstanding law academic. Thus, an 11 (eleven) member body was proposed by the LCI for the selection and appointment of judges of the Supreme Court and the High Courts. To give effect to the recommendation, it was proposed to suitably amend the Constitution.[Paragraph 7.10 and 7.15] 86. The recommendation of the LCI was partially accepted by the government of the day and the Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced in Parliament. This will be adverted to a little later. Arrears Committee-1989-90 87. Between 11th and 13th December, 1987 a Conference of Chief Justices was held with the Chief Justice of India in the Chair. The Conference discussed, inter alia, issues relating to arrears of cases in the High Courts and the District Courts in the country. Grave concern was expressed over the problem of arrears and it was pointed out by most Chief Justices that delay in the appointment of judges is responsible for the arrears. Even after recommendations are sent, the Chief Justice has to wait for a long time for the Government to make the appointment wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand over the proceedings of the Court. All this would be at the cost of proper administration of justice. The effect would be felt not only on the quality but also on the quantity of the work turned out. According to Satish Chandra Committee, the sea change which has gradually come into the political process is directly responsible for the grave deterioration and the fall in the high standards of appointments to the High Court Bench previously maintained. Barring exceptions, the Chief Ministers to-day have come to think that even filling up vacancies on the High Court Bench is a matter of patronage, political or otherwise. It noticed that formerly members of the Bar were invited to accept judge-ship. Now, the judge-ship of the High Court seems to have become a post to be canvassed for. It was found that as long as the State executive has an effective hand in such appointments, this disquieting feature would continue and that it could be remedied only by providing the safeguard of the executive having no final say in the matter of appointment and that the last word in the matter should be of the Chief Justice of the High Court concerned and the Chief Justice of India. The Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as long as the well-established conventions were honoured and followed. The gradual, but systematic violation and virtual annihilation of the conventions over the past two decades or so is essentially responsible for the present unfortunate situation. Has the system, therefore, failed or have the concerned failed the system is an all important question. It is apparent that the system has not failed, but all those concerned with operating the system have failed it by allowing it to be perverted.[Paragraph 6.11] 94. While dealing with the Memorandum of Procedure in existence at that time for the appointment of judges, the Arrears Committee was rather scathing in its observations to the effect that there had been cases where there was agreement between the Chief Justice of India, the Chief Justice of the concerned High Court and the Governor of the State but the Union Law Minister either choose not to make the appointment or inordinately delayed the appointment. It was observed that sometimes the Union Law Minister adopted a pick and choose policy to appoint judges or disturb the order in which the recommendations were made. There had been political interference in this regard and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functioning of the present system could be traced back to the veto power of the executive. This, indeed, is capable of being remedied by making certain amendments to Article 217 providing for concurrence of the Chief Justice of India, instead of consultation with him, in the matter of appointment of Judges of the High Courts.[Paragraph 124] The Committee is of the view that the present constitutional scheme which was framed by the founding fathers after great deliberation and much reflection is intrinsically sound and that it worked in the true spirit it does not require any radical change. In order to guard against and obviate the perversion revealed in the operation of the scheme, the Committee has made suitable recommendations. The Committee believes that if these recommendations are given effect to, there would not be any need to substitute it by a different mechanism. [Paragraph 130] 96. In view of the scathing indictment of the system of appointment of judges where the executive had the 'ultimate power'[This expression was used by Justice Bhagwati and by Justice D.A. Desai in paragraph 719 of S.P. Gupta v. Union of India.] which was being abused and perverted to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale changes. 99. This discussion in the historical perspective indicates that the appointment of judges plays a crucial and critical role in the independence of the judiciary in the real sense of the term. If judges can be influenced by political considerations and other extraneous factors, the judiciary cannot remain independent only by securing the salary, allowances, conditions of service and pension of such judges. The meat lies in the caliber of the judges and not their perks. 100. In his concluding address to the Constituent Assembly on 26th November, 1949 Dr. Rajendra Prasad referred to the independence of the judiciary and had this to say: We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of executive from judicial functions and placing the magistracy which deals with criminal cases on similar footi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1981 104. The First Judges case is important for several reasons, but I am concerned with a few of them. These are: (1) The independence of the judiciary was held to be a part of the basic feature of the Constitution. [Paragraphs 27, 320 and 634. This view has been upheld in several decisions thereafter.] This was the first judgment to so hold. (2) The appointment of a judge is serious business and is recognized as a very vital component of the independence of the judiciary. 'What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Commission for appointment of the higher judiciary.'[Paragraph 30 and 31] Incidentally, we were informed during the course of hearing that even about 35 years after the decision in the First Judges case neither Australia nor New Zealand have established a Judicial Commission as yet. 105. On the meaning of 'consultation' for the purposes of Article 124(2) and Article 217(1) of the Constitution, Justice Bhagwati who spoke for the majority relied upon Union of India v. Sankalchand Himmatlal Sheth (1977) 4 SCC 1993 (Five Judges Bench) and R. Pushpam v. State of Madras: AIR 1953 Mad 392 to hold that: Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge. [Paragraph 30] 106. The majority view in the First Judges case was overruled in the Second Judges case and it was held that 'consultation' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or the Chief Minister of the State. The High Court is an institution of national importance wherein the person appointed as a Judge functions in an impersonal manner. The process of selection is intended to be totally honest and upright with a view to finding out the most suitable person for the vacancy. If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned.[Paragraph 28]] 111. Apart from the above, the Bench was of the view that the interpretation given by the majority in the First Judges case to 'consultation' was not correctly appreciated in the constitutional scheme. It was also felt that the role of the institution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it has been mentioned that a practice is sought to be developed where the executive government of the State sends up the proposals directly to the Centre without reference to the Chief Justice of the State. This is a distortion of the constitutional scheme and is wholly impermissible. So far as the executive is concerned, the 'right' to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Courts or the Chief Justice of India. If the recommendation is to emanate directly from a source other than that of the Chief Justices of the High Courts in the case of the High Courts and the Chief Justice of India in the case of both the High Courts and the Supreme Court it would be difficult for an appropriate selection to be made. It has been increasingly felt over the decades that there has been an anxiety on the part of the government of the day to assert its choice in the ultimate selection of Judges. If the power to recommend would vest in the State Government or even the Central Government, the picture is likely to be blurred and the process of selection ultimately may turn out to be difficult.[Paragraph 34] 114. By-passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice of the High Court was occasionally by-passed by the political executive and a recommendation for the appointment of a person as a judge of the High Court was made directly to the Union Government. This unfortunate situation had continued for more than 40 years and an attempt to bring about a change was made and so a Constitution Amendment Bill was introduced in Parliament, but it lapsed. 118. In the Second Judges case it was held by Justice Pandian: (1) The selection and appointment of a proper and fit candidate to the superior judiciary is one of the inseparable and vital conditions for securing the independence of the judiciary. [Paragraph 49] 'The erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest...'Paragraph 63] (2) Yet another facet of the independence of the judiciary is the separation between the executive and the judiciary (including the superior judiciary)[Paragraph 81] postulated by Article 50 of the Constitution. [50. Separation of judiciary from executive-The State shall take steps to separate the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the opinion of the majority and concluded: (1) Judicial independence is ingrained in our constitutional scheme and Article 50 of the Constitution 'illuminates it'. [Paragraph 313] (2) The First Judges case was not required to be overruled but on the question of primacy in the matter of appointment of judges, the opinion of the Chief Justice of India is entitled to 'graded weight'.[Paragraph 303 and 313. It was observed in paragraph 303: "If the President has to act on the aid and advice of the Council of Ministers it is difficult to hold that he is bound by the opinion of the Chief Justice of India unless we hold that the Council of Ministers including the Prime Minister would be bound by the opinion of the Chief Justice of India, a construction which to our mind is too artificial and strained to commend acceptance."] 120. Justice Kuldip Singh agreed with the majority and laid great stress on constitutional conventions that had evolved over several decades. The learned judge held: (1) Security of tenure is not the only source of independence of the judiciary but 'there has to be an independent judiciary as an institution.'[Paragraph 334] &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said affidavit it is stated as under: As regards the appointments of Judges made, not in consonance with the views expressed by the Chief Justice of India, it is respectfully submitted that since January 1, 1983 to April 10, 1993, there have been only seven such cases, five of these were in 1983 (2 in January 1983, 2 in July 1983, 1 in August 1983); one in September 1985 and one in March 1991, out of a total of 547 appointments made during this period. It is thus obvious from the facts and figures given by the executive itself that in actual practice the recommendations of the Chief Justice of India have invariably been accepted. [ Paragraphs 369 and 370] 122. Justice Verma speaking for the majority held: (1) Independence of the judiciary has to be safeguarded not only by providing security of tenure and other conditions of service, but also by preventing political considerations in making appointments of judges to the superior judiciary. [Paragraph 447] (2) In the matter of appointment of judges, primacy was given to the executive in the Government of India Act, 1919 and the Government of India Act, 1935 but in the constitutional scheme, primacy of the executive is exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President in Articles 124(2) and 217(1) of the Constitution means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head. [Paragraph 457] (7) The advice given by the Council of Ministers to the President should be in accord with the Constitution. Such an advice is binding on the President. Since the opinion of the Chief Justice of India (representing the Judiciary) has finality, the advice of the Council of Ministers to the President must be in accordance with the opinion of the Chief Justice of India. [Paragraph 457 and 476] (8) The convention is that the appointment process is initiated by the Chief Justice of India for the appointment of a judge to the Supreme Court and by the Chief Justice of the High Court for the appointment of a judge to the High Court. There is no reason to depart from this convention. [Paragraph 478(10) and 486(2)] (9) The law laid down in the First Judges case is not the correct view. [Paragraph 486] 123. In his otherwise dissenting opinion, Justice Punchhi supported the view taken by Justice Verma to the extent that the executive could not disapprove the views of the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two seniormost Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior-most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.[Paragraph 478(7)] 128. The norms took the form of conclusions that became binding on the Judiciary and the Executive. It is not necessary to reproduce the conclusions arrived at. 129. An important aspect of the appointment process, which was adverted to by Justice Verma, is the constitutional convention that the recommendation must be initiated by and must originate from the Chief Justice of the High Court (for appointment to the High Court) and from the Chief Justice of India (for appointment to the Supreme Court). In the event the Chief Minister of a State recommends a person for appointm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for some States that the Second Judges case left the executive with no role (or no effective role) to play in the appointment of a judge of the Supreme Court or the High Court particularly since the opinion of the executive is now rendered meaningless. Nothing can be further from the truth. The executive continues to have a vital role to play and in some cases, the final say in the appointment of a judge-the misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of judges, it is their way or the highway. The Constitution of India is a sacred document and not a Rubik's cube that can be manipulated and maneuvered by the political executive any which way only to suit its immediate needs. 132. In an article found on the website of the Tamil Nadu State Judicial Academy, Justice Verma adverted to the appointment process in the Second Judges case and the role of the executive and said: The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following, amongst other, questions: (1) whether the expression 'consultation with the Chief Justice of India' in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles. (3) whether Article 124(2) as interpreted in the said judgment [Second Judges case] requires the Chief Justice of India to consult only the two seniormost Judges or whether there should be wider consultation according to past practice. (4) whether the Chief Justice of India is entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court in respect of all materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment; 135. At the outset, it must be noted that the learned Attorney-General stated at the hearing of the Presidential Reference that the Central Government was neither seeking a review nor a reconsideration of the Second Judges case. Therefore, the answers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road-based. It was clarified in conclusion 9 as follows: 9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India. This conclusion is important, but seems to have been ignored or overlooked by the President. Samsher Singh's case 138. For a complete picture of the judicial pronouncements on the subject, it is also necessary to refer to the decision rendered by this Court in Samsher Singh v. State of Punjab (1974) 2 SCC 831 (Seven Judges Bench). 139. This case related to the termination of the services of two officers of the subordinate judicial service by the Governor of the State. The issue was whether the Governor could exercise his discretion in the matter personally or should act on the advice of the Council of Ministers. The judicial officers contended that the Governor was obliged to exercise his personal discretion and reliance was placed on Sardari Lal v. Union of India (1971) 1 SCC 411 (Five Judges Bench) in which it was held that for invoking the 'pleasure doctrine' Under Article 311(2) of the Constitution, the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. [Paragraph 154] 142. An additional reason was given by the two learned judges for coming to this conclusion and that is also important for our present purposes. The additional reason relates to the independence of the judiciary. For this, reference was made to Jyoti Prakash Mitter v. Chief Justice, Calcutta [1965] 2 SCR 53 (Five Judges Bench) The question in that case related to the determination of the age of a sitting judge of the High Court Under Article 217(3) of the Constitution. [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.]This Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue. [Paragraph 149] 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 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) Act, 1976. (3) In a sense, this decision was a precursor to the primacy conclusion in the Second Judges 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 at this stage. Firstly, Justice Krishna Iyer penned the decision in Samsher Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution it was said by Justice Y.V. Chandrachud: Having envisaged that the judiciary, which ought to act 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 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 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 unproductive. It was said: Article 222(1) which requires the President to consult 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 the situation fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion, 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 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 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. [Paragraph 39] 151. This view was accepted in the First Judges case by Justice Bhagwati, [Paragraph 30] Justice Fazal Ali, [Paragraph 563, 564 and 569] Justice V.D. Tulzapurkar [Paragraph 632 and 663] and Justice D.A. Desai. [Paragraph 848 and 849]. It was also accepted in the Second Judges case by Justice Pandian. [Paragraphs 129 to 133 and 164] 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ostulated and it is not prohibited for making an appointment to the High Court. That is to say, a 'collegium judge' is not prohibited from taking the opinion of any person, either connected with the legal profession or otherwise for taking an informed decision regarding the suitability or otherwise of a person for appointment as a judge of the High Court or the Supreme Court. That this is not unknown is clear from a categorical statement of Justice Verma in an interview that: "For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult even lawyers belonging to the middle level. Similar consultation took place in the case of High Courts. I recorded details of every consultation. I wish all my correspondence is made public." 156. Therefore, during the evolution of the system of appointment of judges four cobwebs were cleared. They were: (1) The role of the President-he/she was expected to act on the advice of the Council of Ministers even in the appointment of judges; (2) The initial recommendation for the appointment of a judge of a High Court was to originate from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any law made by Parliament. 161. The Amendment Act also provided that in the event the recommendation of the NJC is not accepted, the reasons therefor shall be recorded in writing. 162. The Bill was criticized (in part) by the Arrears Committee which stated that: "The Committee is unable to find any logic or justification for different commissions....Keeping in view the objects and reasons for the constitution of the commission, namely, to obviate the criticism of executive arbitrariness in the matter of appointment and transfer of High Court judges and to prevent delay in making appointments, there is no justification for the executive through the Chief Minister to be on the commission. Instead of removing the vice of executive interference which has vitiated the working of the present system the presence of the Chief Minister on the recommendatory body actual alleviates him from the status of a mere consultee to the position of an equal participant in the selection process of the recommendatory body. By making the Chief Minister an equal party when he is not equipped to offer any view in regard to the merit, ability, competency, integrity and suitability of the candidates for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be evident therefrom that the 1993 decision gives effect to the substance of the Constitution (Sixty-seventh Amendment) Bill, without of course calling it a 'National Judicial Commission', and without the necessity of amending the Constitution as suggested by the said Amendment Bill. Indeed, it carries forward the object underlying the Amendment Bill by making the recommendations of the Chief Justice of India and his colleagues binding on the President. The 1998 opinion indeed enlarges the 'collegium'. In this sense, the purpose of the said Amendment Bill evidenced by the proviso to Article 124(2) and the Explanation appended thereto, is served, speaking broadly. The method of appointment evolved by these decisions has indeed been hailed by several jurists and is held out as a precedent worthy of emulation by U.K. and others. (See the opinion of Lord Templeman, a member of the House of Lords, cited hereinabove.) The said decisions lay down the proposition that the "consultation" contemplated by Articles 124 and 217 should be a real and effective consultation and that having regard to the concept of Judicial independence, which is a basic feature of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for recommending the appointment of judges to the Supreme Court and the various High Courts. Further, it appears that latterly there is a movement throughout the world to move this function away from the exclusive fiat of the executive and involving some institutional frame work whereunder consultation with the judiciary at some level is provided for before making such appointments. The system of consultation in some form is already available in Japan, Israel and the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for a collegium of the Chief Justice of India and two other judges of the Supreme Court for making appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sabha on 24th August 2013. 174. The Statement of Objects and Reasons to the Bill referred to the Second Judges case and the Third Judges case as well as the Memorandum of Procedure. It was mentioned that the Memorandum confers upon the judiciary itself the power of appointment of judges of the superior judiciary. [This is factually incorrect. The Memorandum was drawn up by the Law Minister and did not confer any power upon the judiciary.] It was further stated that after a review of the pronouncements of this Court and relevant constitutional provisions, a broad based judicial appointment commission could be established for making recommendations for the selection of judges. This commission would provide a meaningful role to the executive and the judiciary to present their viewpoint and make the participants accountable while introducing transparency in the selection process. The Statement of Objects and Reasons also mentioned that the proposed Bill would enable equal participation of the judiciary and the executive in the appointment of judges to the superior judiciary and also make the system more accountable and thereby increase the confidence of the public in the judiciary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges, the word 'responsibility' used by the LCI in its 14th Report seems more appropriate.]. For the appointment of a judge of the Supreme Court, the collegium of 5 (five) judges must make a unanimous recommendation. The President is entitled to turn down a 4-1 or 3-2 recommendation. If the unanimous recommendation does not find favour with the President for strong and cogent reasons and is returned to the collegium for reconsideration, and it is unanimously reiterated, then the President is obliged to accept the recommendation. However, if the reiteration is not unanimous, then the President is entitled to turn down the recommendation. The theory which the Constitution (One Hundred and Twentieth Amendment) Bill, 2013 [and subsequently the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014] sought to demolish that 'judges appoint judges' is non-existent. (d) The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 178. The fourth and final attempt (presently successful and under challenge in these petitions) to amend the Constitution was by the introduction on 11th August, 2014 of the Constitution (One Hundred and Twenty-first Amendment) B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e independence of the judiciary has been always recognized and acknowledged by all concerned. (2) Prior to Independence, the appointment of a judge to a superior court was entirely the discretion of the Crown. The Constituent Assembly felt that such a 'supreme and absolute' power should not vest in the President or the government of the day or the Chief Justice of India (as an individual) and therefore a fetter was placed on that power by requiring the President to mandatorily consult the Chief Justice of India (with the discretion to consult other judges) for the appointment of a judge to the Supreme Court. For the appointment of a judge of the High Court also, consultation with the Chief Justice of India was mandatory. In addition, consultation with the Chief Justice of the High Court and the Governor of the State was mandatory. Significantly, there is no mention of consultation with anybody from civil society. (3) Any doubt about the individual role of the President in the process of appointment of judges came to rest and it was clear that the President was expected to act only on the advice of the Council of Ministers. (4) Similarly, the Chief Justice of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of maintaining the independence of the judiciary and providing a suitable method for appointment of judges of the superior Courts. 184. This is not to say that the 'collegium system' is perfect. Hardly so. During the course of hearing, some critical comments were made with regard to the appointment of some judges to this Court which, it was submitted by the learned Attorney-General would not have been possible were it not for the failure of the collegium system. Even the Petitioners were critical of the collegium system. However, I must express my anguish at the manner in which an 'attack' was launched by some learned Counsel appearing for the Respondents. It was vitriolic at times, lacking discretion and wholly unnecessary. Denigrating judges is the easiest thing to do-they cannot fight back-and the surest way to ensure that the judiciary loses its independence and the people lose confidence in the judiciary, which is hardly advisable. The Bar has an equal (if not greater) stake in the independence of the judiciary and the silence of the Bar at relevant moments is inexplicable. The solution, in the larger canvas, is a democratic audit, an audit limited to the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to share the blame equally if not more, since it mortgaged its constitutional responsibility of maintaining a check on what may be described as the erroneous decisions of the collegium. 189. To say that the executive had no role to play (as was suggested to us) is incorrect to say the least, as is clear from a close reading of the Second Judges case and the Third Judges case. Even the President did not think so. In fact, the President was clearly of the opinion that the executive or at least the Head of State had a role to play in the appointment of judges. This evident from an article titled "Merit" in the Appointment of Judges' [By Professor M.P. Singh, (1999) 8 SCC (Jour) 1] which quotes from an issue of India Today magazine of 25th January, 1999 the following noting made by the President concerning the appointment of judges of the Supreme Court: I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53] While others shower praise on our system of appointment of judges, we can only heap scorn! Preliminary issue-reconsideration of the Second Judges case and the Third Judges case 192. With this rather detailed history, the preliminary objections raised by the learned Attorney-General need consideration. The learned Attorney-General raised three preliminary issues: (1) The writ petitions are premature and not maintainable since the 99th Constitution Amendment Act and the NJAC Act have not come into force; (2) The writ petitions are premature and not maintainable since the National Judicial Appointments Commission has not been constituted and so there is no adverse impact of the 99th Constitution Amendment Act and the NJAC and no facts have been pleaded by the Petitioners in this regard; (3) This batch of cases ought to be heard by a Bench of 9 (nine) or more judges since the decision of this Court in the Second Judges case[Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Nine Judges Bench)] and the Third Judges case [Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Nine Judges Bench)] do not lay down the correct law but require reconsideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Ram Jawaya Kapur v. State of Punjab [1955] 2 SCR 225 (Five Judges Bench) it was held by Chief Justice Mukherjea speaking for this Court: It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. [Paragraph 12] 196. The separation of powers in our Constitution is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause, it was held by Justice H.R. Khanna: A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd., Municipal Corporation of the City of Ahmedabad v. New Shorock Spg. and Wvg. Co. Ltd. and State of Tamil Nadu v. M. Rayappa Gounder). [371 Paragraph 190] (Internal citations omitted). 198. Justice Mathew held that ours is a cooperative federalism that does not contain any rigid separation of powers and there exists a system of checks and bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety". Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive, a host of rules and Regulations are passed by non-legislative bodies, which have been judicially recognized as valid.[Paragraph 87] 200. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 (Five Judges Bench) Justice Bhagwati opined that the Constitution has devised a structure for the separation of powers and checks and balances and held: It is clear from the majority decision in Kesavananda Bharati case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges Bench) it was held that separation of powers is an essential feature of the Constitution and in modern governance strict separation is neither possible nor desirable. There is no violation of the principle of separation of powers if there is an overlap of the function of one branch of governance with another, but if one branch takes over an essential function of another branch, then there is a violation of the principle. It was observed by Justice Sathasivam speaking for the Court, while considering the constitutional validity of the Members of Parliament Local Area Development Scheme: The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government. While understanding this concept [of separation of powers], two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent Assembly Debates and the third preliminary issue 206. In further support of his contention that the Second Judges case and the Third Judges case do not lay down the correct law and need reconsideration, the learned Attorney-General placed great reliance on the CAD. It is necessary, therefore, to consider the law on the subject and then the debates. 207. In Administrator-General of Bengal v. Prem Lal Mullick (1894-95) 22 I.A. 107, 118 the Privy Council did not approve of a reference to debates in the Legislature as a legitimate aid to the construction of a statute. It was held: Their Lordships observe that the two learned Judges who constituted the majority in the Appellate Court, although they do not base their judgment upon them, refer to the proceedings of the Legislature which resulted in the passing of the Act of 1874 [Administrator-General's Act] as legitimate aids to the construction of Section 31. Their Lordships think it right to express their dissent from that proposition. The same reasons which exclude these considerations when the clauses of an Act of the British Legislature are under construction are equally cogent in the case of an Indian statute. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law". In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in Article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law"....... In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word "due".[Page 158 and 159] 210. Justice Patanjali Sastri was of the same opinion and so the learned judge held as follows: Learned Counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the "historical background". A speech made in the course of the debate on a bill could at best be indicativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted certain words in a particular sense, while others took them in a different light.[Page 273 and 274] 212. Justice S.R. Das specifically stated that he expresses no opinion on the question of admissibility or otherwise of the CAD to interpret the Constitution. 213. In State of Travancore-Cochin v. The Bombay Co. Ltd. 1952 SCR 1112 (5 Judges Bench) it was unanimously held that reference to the CAD is unwarranted and such an extrinsic aid to the interpretation of statutes is not admissible. Speaking for the Court, Chief Justice Patanjali Sastri held: It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes--see Administrator-General of Bengal v. Prem Lal Mallick. The reason behind the rule was explained by one of us in Gopalan case thus: A speech made in the course of the debate on a bill could at best be indicative of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 'must be interpreted on the words thereof as they finally found place in the Constitution.' It was said: Copious references were made during the course of arguments to debates in Parliament and it is urged that it is open to this Court to look into the debates in order to interpret Article 368 to find out the intention of the Constitution-makers. We are of opinion that we cannot and should not look into the debates that took place in the Constituent Assembly to determine the interpretation of Article 368 and the scope and extent of the provision contained therein. It may be conceded that historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed, may be taken into account in finding out the scope and extent of Article 368. But we have no doubt that what was spoken in the debates in the Constituent Assembly cannot and should not be looked into in order to interpret Article 368........... We are therefore of opinion that it is not possible to read the speeches made in the Constituent Assembly in order to interpret Article 368 or to define its extent and scope and to determine what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited franchise'. 220. In Kesavananda Bharati it was held by Chief Justice Sikri that 'speeches made by members of the legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any provisions of the statute.' The learned Chief Justice held that the same rule is applicable to provisions of the Constitution as well and for this reliance was placed, inter alia, on Prem Lal Mullick, A.K. Gopalan, State of Travancore-Cochin and Golak Nath. Explaining Union of India v. H.S. Dhillon (1972) 2 SCR 331 the learned Chief Justice said: In Union of India v. H.S. Dhillon I, on behalf of the majority, before referring to the speeches observed at p. 58 that "we are however, glad to find from the following extracts from the debates that our interpretation accords with what was intended". There is no harm in finding confirmation of one's interpretation in debates but it is quite a different thing to interpret the provisions of the Constitution in the light of the debates.[Paragraph 183] 221. Apart from relying on case law, the learned Chief Justice gave an additional reason for concluding that reliance on the CAD was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambedkar. In our opinion, it is impermissible for us to do so. It is a well-settled rule of construction that speeches made by members of a Legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any of the provisions of the statute. The same rule is applicable when we are called upon to interpret the provisions of a Constitution.[Paragraph 683] The learned judges observed that no decision was brought to their notice dissenting with the view mentioned above. 223. Justice H.R. Khanna was also of the opinion that the CAD could be referred only for the limited purpose of determining the history of the constitutional provision. The CAD 'cannot form the basis for construing the provisions of the Constitution.' The learned judge further said that the intention of the draftsman of a statute would have to be gathered from the words used. The learned judge said: The speeches in the Constituent Assembly, in my opinion, can be referred to for finding the history of the Constitutional provision and the background against which the said provision was draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned........... In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the national a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of forces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly.[Paragraph 108 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reflected in the provision finally enacted. The speech of Dr. Ambedkar on this aspect, however, stands on a different footing. He was not only the Chairman of the Drafting Committee which inserted the expression "backward" in draft Article 10(3) [it was not there in the original draft Article 10(3)], he was virtually piloting the draft Article. In his speech, he explains the reason behind draft Clause (3) as also the reason for which the Drafting Committee added the expression "backward" in the clause. In this situation, we fail to understand how can anyone ignore his speech while trying to ascertain the meaning of the said expression. That the debates in Constituent Assembly can be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of this Court......... Since the expression "backward" or "backward class of citizens" is not defined in the Constitution, reference to such debates is permissible to ascertain, at any rate, the context, background and objective behind them. Particularly, where the Court wants to ascertain the 'original intent' such reference may be unavoidable.[Paragraph 772] 229. In S.R. Chaudhuri v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituent Assembly for interpreting provisions of the Constitution is not permissible' and that 'The preponderance of opinion appears to me not to rely on the debates in the Constituent Assembly or the Parliament to interpret a constitutional provision although they may be relevant for other purposes.' The learned judge quoted a sentence from Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591 to the following effect: We are seeking not what Parliament meant but the true meaning of what Parliament said.[Paragraph 297] 234. In re: Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter): (2002) 8 SCC 237 the issue of relying on the CAD again came up for consideration. Justice Khare (for the Chief Justice, Justice Bhan and himself) referred to Kesavananda Bharati and held: Constituent Assembly Debates although not conclusive, yet show the intention of the framers of the Constitution in enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. [Paragraph 16] 235. In a decision rendered by the Constitutional Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natory memoranda providing reasons for new bills have not been admitted as background material. It is, however, permissible to take notice of the report of a judicial commission of enquiry for the limited purpose of ascertaining "the mischief aimed at the statutory enactment in question." These principles were derived in part from English law. In England, the courts have recently relaxed this exclusionary rule and have held, in Pepper (Inspector of Taxes) v. Hart that, subject to the privileges of the House of Commons: ...reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. [Paragraph 14] (Internal citations omitted) 237. It is quite clear that the overwhelming view of the various learned judges in different decisions rendered by this Court and in other jurisdictions as well is that: (1) A reference may be made to the CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the draft Article 122 concerning the officers and servants and expenses of the Supreme Court. [(3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the revenues of India, and any fees or other moneys taken by the court shall form part of those revenues.]The contention was that it was not the intention of the Constituent Assembly to make the Chief Justice of India or the Supreme Court above the executive or the Legislature thereby discarding the theory of separation of powers, and if 'consultation' is interpreted to mean 'concurrence', then that would be the inevitable result. Reliance was placed on the following speech: While I undoubtedly support the amendment moved by Dr. Ambedkar, I think it should be understood by the Members of this House, and I do hope by those people who will be administering justice and also administering the country in the future that this is a safeguard rather than an operative provision. The only thing about it is that a matter like the employment of staff by the Judges should be placed ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independence so that it can act without fear or favour of the Executive. My friend, if they will carefully examine the provisions of the new amendment which I have proposed in place of the original Article 122, will find that the new article proposes to steer a middle course. It refuses to create an Imperium in Imperio, and I think it gives the Judiciary as much independence as is necessary for the purpose of administering justice without fear or favour. I need not therefore, dilate on all the provisions contained in this new Article 122.... [http://parliamentofindia.nic.in/ls/debates/vol8p10b.htm] 241. It is quite clear from the above that the endeavour of Dr. Ambedkar was to ensure the independence of the judiciary from the executive without creating any power imbalance and this, therefore, needed steering a middle course whether in the appointment of judges or the officers of the Supreme Court. There can be no doubt about this at all. But what is the 'independence of the judiciary' and how can it be maintained and does the 99th Constitution Amendment Act impact on that independence? These are some troubling questions that need an answer with reference to the issue before us, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights of all consuming public. It authorises the imposition and levying of a tax by the State on an interpretation of a constitutional provision which appears to us to be unsupportable. To follow that interpretation will result in perpetuating what, with humility we say, is an error and in perpetuating a tax burden imposed on the people which, according to our considered opinion, is manifestly and wholly unauthorised. It is not an ordinary pronouncement declaring the rights of two private individuals inter se. It involves an adjudication on the taxing power of the States as against the consuming public generally. If the decision is erroneous, as indeed we conceive it to be, we owe it to that public to protect them against the illegal tax burdens which the States are seeking to impose on the strength of that erroneous recent decision.[Paragraph 17] 245. Justice N.H. Bhagwati also reviewed several decisions from various jurisdictions and agreed with Chief Justice Das but drew a distinction between reconsideration of a previous decision concerning the interpretation of a provision of a legislative enactment and the interpretation of a provision of the Constitution. While an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enkatarama Aiyar and held that a previous judgment of this Court ought not to be reviewed simply because another view may be taken of the points in controversy. This Court should review its previous decisions only in exceptional circumstances. It was observed that 'Definiteness and certainty of the legal position are essential conditions for the growth of the rule of law.' 249. Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC 532 (7 Judges Bench) concerned the interpretation of Article 226 of the Constitution and Article 32(2-A) of the Constitution (as applicable to Jammu & Kashmir). Though Justice Subba Rao (dissenting) and Justice Das Gupta (concurring) delivered separate judgments, they did not advert to the question of reconsideration of a decision of this Court. Chief Justice B.P. Sinha speaking for the remaining learned judges took the view that a previous decision rendered by this Court may be reconsidered if there are 'clear and compelling reasons' to do so or if there is a fair amount of unanimity that the previous decision is 'manifestly wrong' or if it is demonstrated that the earlier decision was erroneous 'beyond all reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in law would be eroded if a decision that 'held the field' for several years is readily overruled-'certainty and continuity are essential ingredients of rule of law.' It was held that if two views are possible then, simply because the earlier decision does not take a view that is more acceptable would not be a ground for overruling the earlier decision. An earlier decision ought to be overruled only for compelling reasons otherwise it would create 'uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.' Justice Khanna observed that new ideas and developments in the field of law and that the fullness of experience and indeed subsequent experience cannot be wished away. The learned judge held: As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gifted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his reference is not at all clear and is simply stated as '1982 at pp. 156-157'] which suggest that the freedom to reconsider an earlier decision ought to be exercised sparingly; a decision ought not to be overruled if it upsets the legitimate expectation of persons who have made arrangements based on the earlier decision or causes great uncertainty in the law; decisions involving the interpretation of statutes or documents ought not to be overruled except in rare or exceptional circumstances; if the consequences of departing from an earlier decision are not foreseeable; merely because an earlier decision was wrongly taken is not a good enough justification for overruling it. On the other hand, a prior decision ought to be overruled 'if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy.' 254. Reference was also made to several decisions earlier rendered by this Court (including those mentioned above) and though no new or different principles or guidelines were laid down, the law as stated by this Court was iterated, and it was observed: 'It is not neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion to reconsider the decision in Builders' Association. 257. Another decision (which is rather interesting) on the subject of reconsideration of an earlier decision is Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111 (7 Judges Bench). The question before this Court was whether the Council for Scientific and Industrial Research was 'the State' as 'defined' in Article 12 of the Constitution. The answer to this question required consideration of an earlier unanimous decision of this Court in Sabhajit Tewary v. Union of India (1975) 1 SCC 485 (5 Judges Bench). which had stood undisturbed for about 25 years. While answering this question, this Court did not detail the law on the subject of reconsideration of an earlier decision of this Court, but on a consideration of the facts (and the law) concluded that Sabhajit Tewary had been wrongly decided and was overruled. This Court referred to Maganlal Chhaganlal and Raghubir Singh and held: From whichever perspective the facts are considered, there can be no doubt that the conclusion reached in Sabhajit Tewary was erroneous. ....... In the assessment of the facts, the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents a rather anomalous situation which needs to be addressed by appropriate rules of procedure. If this anomaly is perpetuated then the unanimous decision of 9 learned judges in the Third Judges case can be overruled (as sought by the learned Attorney-General) by 6 learned judges in a Bench of 11 learned judges, with 5 of them taking a different view, bringing the total tally of judges having one view to 14 and having another view to 6, with the view of the 6 learned judges being taken as the law! 259. Be that as it may, two other decisions of importance on the subject of reconsidering a prior decision of this Court are Kesavananda Bharati and the Second Judges case. 260. In Kesavananda Bharati it was pithily stated by Chief Justice S.M. Sikri that the question before the Court was whether Golak Nath was correctly decided. The learned Chief Justice observed: However, as I see it, the question whether Golak Nath case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament?[Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issue is involved, the necessity of reconsideration should be shown beyond all reasonable doubt, the remedy of amending the Constitution always being available to Parliament. (2) If the decision concerns the imposition of a tax, then too the bar might be lowered a bit since the tax burden would affect a large section of the public. However, the general principles for requiring reconsideration do not necessarily fall by the wayside. (3) If the decision concerns the fundamental rights of the people, then too the bar might be lowered for obvious reasons. However again, the general principles for requiring reconsideration must be adhered to. (4) In other cases, the Court must be convinced that the earlier decision is plainly erroneous and has a baneful effect on the public; that it is vague or inconsistent or manifestly wrong. (5) If the decision only concerns two contending private parties or individuals, then perhaps it might not be advisable to reconsider it. Each and every error of law cannot obviously be corrected by this Court. (6) The power to reconsider is not unrestricted or unlimited, but is confined within narrow limits and must be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cknowledged as has been done by this Court in Maganlal Chhaganlal and by Chief Justice Dickson of the Canadian Supreme Court in The Queen v. Beauregard [[1986] 2 SCR 56 wherein it is stated: With respect to the first of these arguments, I do not think Section 100 [of the Constitution Act, 1867] imposes on Parliament the duty to continue to provide judges with precisely the same type of pension they received in 1867. The Canadian Constitution is not locked forever in a 119-year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867--airplanes, nuclear energy, hydroelectric power--it is surely not straining Section 100 too much to say that the word 'pensions', admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of 'pensions'.] Similarly, the social context or 'contemporary social conditions or modern conceptions of public policy' cannot be overlooked. Oliver Wendell Holmes later a judge of the Supreme Court of the United States put it rather p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power through a system of checks and balances rather than a classical separation of power between the Legislature, the Executive and the Judiciary. These three organs of the State are not in a silo and therefore there is an occasional overlap-but every overlap does not necessarily lead to a violation of the separation of powers theory. [In his concluding speech, Br. Rajendra Prasad used the expression 'distribution of powers' and not 'separation of powers'. See: http://parliamentofindia.nic.in/ls/debates/vol11p12. htm] 277. There are several examples of this 'overlap' and the learned Attorney-General has taken us through the various provisions of the Constitution in this regard: Article 124(1) of the Constitution enables Parliament to pass a law prescribing the composition of the Supreme Court as consisting of more than seven judges. Pursuant to this the Supreme Court (Number of Judges) Act, 1956 was passed; Article 124(4) provides for the impeachment process for the removal of a judge; Article 124(5) enables Parliament to legislate for regulating the procedure for the presentation of an address in the impeachment process and in the investigation and proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed-whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence. 279. The learned Attorney-General is not right in his submission that the Second Judges case overlooked the separation of powers and the CAD and incorrectly interpreted the provisions of the Constitution particularly Article 124(2) thereof. This is a rather narrow understanding of the Second Judges case which, amongst others, considered the interpretation of Article 50 of the Constitution, constitutional history and conventions, the entire spectrum of issues relating to the appointment of judges in the context of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the constitutional scheme but that is no indication that the theory of the separation of powers has broken down. If there is an interpretational error, it can be corrected only by the judiciary, or by a suitable amendment to the Constitution that does not violate its basic structure. 271. No one thought that this Court, in the Second Judges case, had erroneously interpreted or misunderstood the constitutional scheme concerning the appointment of judges and the independence of the judiciary. There were some problem areas and these were referred to this Court in the form of questions raised by the President seeking the advisory opinion of this Court in the Third Judges case. The correctness of the decision rendered in the Second Judges case was not in doubt and to remove any misunderstanding in this regard the learned Attorney-General categorically stated in the Third Judges case that 'the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case.' Therefore, neither the President nor the Union of India nor anybody else for that matter sought a reconsideration of the Second Judges case. There is no reason (apart from an absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate that at least since 1935, if not earlier, the appointment of judges was made in accordance with the view of the Chief Justice of India or the Chief Justice of the High Court as the case may be. There were aberrations but these appear to have mainly taken place only after Independence, as mentioned above. But even in those cases where there were aberrations pre-1959 (with the Chief Justice of the High Court having been by-passed) the concurrence of the Chief Justice of India was taken. The executive, therefore, never had real primacy in the matter of appointment of judges. But, post the First Judges case the executive exerted its newly given absolute primacy in the appointment of judges and the aberrations increased. Surely, the executive cannot take advantage of the aberrations caused at its instance and then employ them as an argument that no constitutional convention existed regarding the concurrence of the Chief Justice of India. On the contrary, the aberrations indicate the stealthy attempt of the political executive to subvert the independence of the judiciary through appointments that were not necessarily merit-based, and the submissions advanced before us suggest that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fective justice delivery, to maintain the independence of the judiciary, to keep at bay external influences, 'eliminate political influence even at the stage of initial appointment of a Judge' [Second Judges case, Paragraph 450] and as the head of the judiciary, his/her judgment ought to be trusted in this regard. That this could be characterized as a 'right to insist' is not at all justified, nor can any voice of disagreement by the executive be construed as a 'right to reject' or a veto. These expressions do not gel with the constitutional scheme or the responsibilities of constitutional functionaries. 276. What did the Second Judges case and the Third Judges case decide that should lead the political executive to misunderstand the views expressed and misunderstand the law interpreted or call for a reconsideration of the law laid down? In essence, all that was decided was that the Chief Justice of India (in an individual capacity) could not recommend a person for appointment as a judge, but must do so in consultation with the other judges (and if necessary with non-judges). Such a recommendation of the Chief Justice of India, if made unanimously, ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why only judges of the Supreme Court and the High Court. If the President knew a person to be of outstanding ability, it might not be necessary for him/her to consult anybody for making the appointment. This view was supported by Mr. M. Ananthasayanam Ayyangar (Madras: General) who also felt that it should be left to the President to decide whom to consult, if necessary. 280. Yet another method of appointment was the British system where appointments were made by the Crown without any kind of limitation whatsoever, that is, by the political executive. A fourth method discussed was that prevailing in the United States where appointments were made with the concurrence of the Senate. 281. Dr. Ambedkar was of the view that none of the methods proposed was suitable for a variety of reasons and therefore a middle path was taken which required the President to consult the Chief Justice of India and other judges. Dr. Ambedkar felt that consultation with the Chief Justice of India and other judges was necessary since they were ex hypothesi well qualified to give advice in a matter of this nature. 282. The Chief Justice of India and other judges are undoubtedly well qualified to give pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of appointment of judges. The objection only was to one person (the President or the Chief Justice of India) having a final say in the matter and that one person (the Chief Justice of India) could possibly suffer from the same frailties as any one of us and this is what Dr. Ambedkar sought to emphasize in his objection. It must be appreciated that when the debate took place (on 24th May, 1949) the appointment of judges was, due to the insertion of Clause (5)a in Article 62 of the Draft Constitution[Clause 5(a) of Article 62 reads: "(5)a In the choice of his Ministers and the exercise of his other functions under this Constitution, the President shall be generally guided by the instructions set out in Schedule III-A, but the validity of anything done by the President shall not be called in question on the ground that it was done otherwise than in accordance with such instructions."] considered to be the responsibility of the President acting on his own and not through the Council of Ministers. That this theory was in the process of being given up (and was actually given up) is a different matter altogether. Alternatively, if the thinking at that time was that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the judiciary in mind, including the appointment of judges. 286. Taking all these factors and the CAD into account, all of which were discussed in the Second Judges case it is difficult to accept the contention of the learned Attorney General that the Second Judges case requires reconsideration on merits. While the various decisions referred to dealt with the issue of reconsideration of an earlier decision of this Court, it is difficult to conclude that a decision rendered by 8 out of 9 judges who decided the Second Judges case (Justice Punchhi also concurred on the primacy of the Chief Justice of India) ought to be rejected only because there could be a change of opinion or a change of circumstances. The Second Judges case was accepted by the Attorney-General as mentioned in the Third Judges case and also by the President who did not raise any question about the interpretation given to Article 124(2) and Article 217(1) of the Constitution. These constitutional authorities having accepted the law laid down in the Second Judges case, there is no reason to reconsider that decision on the parameters repeatedly laid down by the Court. There are no exceptional circumstances, clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Third Judges case. This is apart from the fact that reconsideration is not warranted at law, even on merits. Rule of Law 291. On the merits of the controversy before us, it is necessary to proceed on the basis that there is no doubt that the CAD, the Constitution and judicial pronouncements guarantee the independence of the judiciary. Does the independence of the judiciary include the appointment of a judge? According to the learned Attorney-General, the appointment of judges is a part of the independence of the judiciary, but not a predominant part. 292. Before considering these issues, it is necessary to appreciate the role of the Rule of Law in our constitutional history. It has been said: 'Ultimately, it is the rule of law, not the judges, which provides the foundation for personal freedom and responsible government.'[Judicial Independence and the Rule of Law by Jonathan K. Van Patten, Volume 2 Benchmark page 117, 129 (1986)] 293. The Rule of Law is recognized as a basic feature of our Constitution. It is in this context that the aphorism, 'Be you ever so high, the law is above you' is acknowledged and implemented by the Judiciary. If the Rule of Law is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of rule of law.[Paragraph 16] 298. Similarly, in Kartar Singh v. State of Punjab (1994) 3 SCC 569 (Five Judges Bench) it was said by Justice K. Ramaswamy (dissent) that an independent judiciary is the most essential attribute of the Rule of Law: Independent judiciary is the most essential attribute of rule of law and is indispensable to sustain democracy. Independence and integrity of the judiciary in a democratic system of Government is of the highest importance and interest not only to the judges but to the people at large who seek judicial redress against perceived legal injury or executive excesses. [Paragraph 412] 299. This view was reiterated by the learned judge in yet another dissent, that is, in Krishna Swami v. Union of India (1992) 4 SCC 605 paragraph 66. 300. In Union of India v. Madras Bar Association (2010) 11 SCC 1 (Five Judges Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Lord Chief Justice of England and Wales] said: 'In order to be impartial a judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.' 305. As far as individual independence is concerned, the Constitution provides security of tenure of office till the age of 65 years for a judge of the Supreme Court. [ Article 124(2)] However, the judge may resign earlier or may be removed by a process of impeachment on the ground of proved misbehavior or incapacity. [Article 124(4)] To give effect to this, Parliament has enacted the Judges (Inquiry) Act, 1968. The procedure for the impeachment of a judge is that a motion may be 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 2/3rd members of that House present and voting in the same session. To maintain the integrity and independence of the judiciary, the impeachment process is not a cake walk. 306. A judge's salary, privileges, allowances, leave of absence and pension and such other privileges, allowances and rights mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can do as they please. Judicial independence is conferred so judges can do as they must. A judiciary with permanent tenure, with a sufficient degree of separation from other branches of government, and with the undoubted obligation to resist improper influence is essential to the Rule of Law as we have come to understand that term.[http://www.judiciary.senate.gov/imo/media/doc/kennedy_testimony_02_14_07. pdf] 312. As far as decisional independence is concerned, a good example of the protection is to be found in Anderson v. Gorrie [1895] 1 Q.B. 668, 670 where it was said by Lord Esher M.R.: the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie. Explaining this, Lord Bridge of Harwich said in McC (A Minor), Re [1985] A.C. 528, 540: The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral protections available to an individual judge or to the institution as such. Through Article 50 [Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.] which is a provision in Part IV of the Constitution (Granville Austin in 'The Constitution: Cornerstone of a Nation' describes Part III and Part IV of the Constitution as 'the conscience of the Constitution') [Page 50] the judiciary shall be insulated from executive interference. Justice Krishna Iyer speaking for himself and Justice Fazl Ali pointed out in Sankalchand Sheth that: Under the general law of civil liability (Tort) words spoken or written in the discharge of his judicial duties by a Judge of the High Court are absolutely privileged and no action for defamation can lie in respect of such words. This absolute immunity is conferred on the Judges on the ground of public policy, namely, that they can thereby discharge their duty fearlessly. [Paragraph 77] 16. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides, inter alia, that no court shall entertain or continue any civil or criminal proceeding against any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would be independent, devoting more hours of debate to this subject than to almost any other aspect of the provisions. If the beacon of the judiciary was to remain bright, the courts must be above reproach, free from coercion and from political influence.[Granville Austin-"Indian Constitution: Cornerstone of a Nation" pages 164-164] Separation between the judiciary and the executive 320. Another facet of the discussion relating to the independence of the judiciary can be resolved by considering Article 50 of the Constitution. [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.] This Article was referred to in the Second Judges case and, according to learned Counsel for the Petitioners, overlooked in the First Judges case. It was urged that that Article is of great importance in as much as the Constituent Assembly was quite explicit that there should be a separation between the executive and the judiciary. The learned Attorney-General submitted, on the other hand, that the separation postulated by Article 50 of the Constitution was only limited to the public services of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliamentofindia.nic.in/ls/debates/vol7p12. htm] 323. Mr. B. Das (Orissa: General) opposed the amendment on the ground that when the people were harassed by the British Government, the feeling was that no justice was given and that is why there was a demand for the separation of the judiciary from the executive. After Independence that suspicion did not exist and therefore it was essential to examine whether separation was necessary. 324. The debate continued the next day on 25th November, 1948 when, as soon as the Constituent Assembly met, Dr. Ambedkar moved an amendment for the deletion of certain words from Article 39A of the Draft Constitution. As a result of this proposed amendment, Article 39A would read as follows: The State shall take steps to separate the judiciary from the executive in the public services of the State. 325. During the course of the debate on 25th November, 1948 a self-evident truth came into focus. It was pointed out by Pandit Jawaharlal Nehru (United Provinces: General) that the Constitution is expected to last a long time and that it should not be rigid. As far as the 'basic nature' of the Constitution is concerned it must deal with fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y one of them. Explaining this in the context of the 'matters of extreme moment' Pandit Jawaharlal Nehru said that India is a very mixed country 'politically, judicially, economically and in many ways and any fixed rule of thumb to be applied to every area may be disadvantageous and difficult in regard to certain areas. On the one hand, that rule will really prevent progress in one area, and on the other hand, it may upset the apple-cart in some other area. Therefore, a certain flexibility is desirable.' [http://parliamentofindia.nic.in/ls/debates/vol7p13. htm] 327. The views expressed by Dr. Bakshi Tek Chand (East Punjab: General) are extremely important in this regard. The Hon'ble Member gave a detailed historical background for the demand of separation of the executive and the judiciary and expressed the view that as far back as in 1852 when public opinion in Bengal began to express itself in an organized manner that the matter of separation was first mooted. In other words, the separation of the executive from the judiciary had been in demand for almost 100 years. 328. Dr. Bakshi Tek Chand was of the view that with Independence, the necessity of this refor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In these circumstances, I submit that with the change of circumstances and with the advent of freedom and the introduction of democracy, it has become all the more necessary to bring about the separation of the judiciary from the executive at the earliest possible opportunity. [http://parliamentofindia.nic.in/ls/debates/vol7p13. htm] 329. The debate concluded on 25th November, 1948 with the Constituent Assembly eventually accepting the insertion of Article 39A in the Draft Constitution. This is now Article 50 in our Constitution. 330. The importance of the debate must be looked at not only from a historical perspective but also what was intended for the future by the Constituent Assembly. In the past there had been unabashed interference by the executive in the administration of justice by the subordinate judiciary and this definitely needed to be checked. In that sense, the debate on 24th and 25th November, 1948 was a precursor to the debate on Article 103 of the Draft Constitution held on 23rd and 24th May, 1949. By that time it was becoming clear (if it was not already clear) to the Constituent Assembly that there should be no interference by the executive in the administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, for realization of the basic human rights of 'access to justice' and 'speedy justice' both civil and criminal. The present allocation of 0.071%, 0.078% and 0.07% of the Plan outlay in the 9th, 10th and 11th Plan are wholly insufficient.' Financial independence is one area which is also critical to the independence of the judiciary but is among the least discussed. Independence of the judiciary and the appointment process 334. We must proceed on the basis that the independence of the judiciary is vital to democracy and there ought to be a separation between the executive and the judiciary. The independence of the judiciary begins with the appointment of a judge. Granville Austin says: 'An independent judiciary begins with who appoints what calibre of judges.'[Granville Austin-"Working a Democratic Constitution: The Indian Experience" page 124] It must be appreciated and acknowledged that methodological independence, namely, the recommendation and appointment of judges to a superior Court is an important facet of the independence of the judiciary. [Second Judges case, Paragraph 49, 335 and 447.] If a person of doubtful ability or integrity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of India. This has already been discussed above. 338. The third step is the issuance of a warrant of appointment (or commission). It is quite clear that the warrant of appointment can be issued only by the President. There is not and cannot be any dispute about this. Under the circumstances it is clear that the executive function of the President remains intact, unlike what the learned Attorney-General says and there is no scope for the recitation of the 'judges appointing judges'mantra. 339. It is perhaps this simple three-step process that the Constituent Assembly intended. But this got distorted over the years, thanks to the interference by the political executive in the first and second steps. 340. In a Report entitled 'Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights'[Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll. Available at http://www.interights.org/document/142/index.html] the interplay between the Rule of Law, the independence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and with what outcome-is of critical importance. To maintain a judiciary that is independent, which makes good decisions, and in whom the public can continue to have confidence, we need to appoint the most meritorious candidates and secure a judiciary that is as reflective as possible of the society it is serving. And we need to get it right first time, every time, because, once appointed to a full-time salaried position, judges may not be removed from office other than in the most extreme of circumstances.[Page 52] 343. Therefore, in the appointment of a judge, it is not only (negatively expressed) that a 'wrong person' should not be appointed but (positively expressed) the best talent, amongst lawyers and judicial officers should be appointed as judges of the High Court and the best amongst the judges of the High Courts or amongst advocates or distinguished jurists should be appointed to the Supreme Court. It has been stated in the 14th Report of the LCI that the selection of judges is of pivotal importance to the progress of the nation and that responsibility must be exercised with great care. 344. In the Report on Judicial Independence: Law and Practice of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute discretion of the appointing executive could be influenced by party considerations.[Paragraph 886] 346. In the Second Judges case Justice Pandian was quite explicit and expressed the view that the selection and appointment of a proper and fit candidate to the superior judiciary is inseparable from the independence of the judiciary and a vital condition in securing it. [Paragraph 49] Similarly, Justice Kuldip Singh also held that there cannot be an independent judiciary when the power of appointment of judges rests with the executive and that the independence of the judiciary is 'inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary.'[Paragraph 335] Justice Verma, speaking for the majority, expressed the view that all constitutional authorities involved in the process of appointing judges of the superior courts 'should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made.'[Paragraph 431] The learned judge further said that the independence of the judiciary can be safeguarded by prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or indirect, from any source; and b) The judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature. [Clause 3] To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.[Clause 11] The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.[Clause 12] This document was signed by Justice S.C. Agrawal of this Court representing Chief Justice A.M. Ahmadi. 350. The Bangalore Principles of Judicial Conduct, 2002 which lay down six essential values for a judge (and which are accepted world-wide both in civil law and common law countries) would be totally unworkable if a person appointed as a judge, at the time of appointment, lacks basic competence and independence. [The six values are: Independence, Impartiality, Integrity, Propriety, Equality, Competence and Diligence] Given all these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of a particular person for strong and cogent reasons to be recorded in writing. [Second Judges case, Paragraph 442, 450, 461, 486 and 509] Therefore, when a person is considered for appointment as a judge, there is extensive and intensive participatory consultation within the judiciary before the Chief Justice of India actually recommends a person for appointment as a judge; and after the recommendation is made, there is consultation between the executive and the judiciary before the process is carried further. What can be a more meaningful consultation postulated by Article 124(2) of the Constitution? 354. If a person is not recommended for appointment by the Chief Justice of India or the Chief Justice of a High Court, the chapter of his/her appointment closes at that stage. And, if there is no difference of opinion between the constitutional functionaries about the suitability of a person for appointment then, of course, there are no hurdles to the issuance of a warrant of appointment. 355. The difficulty in considering and accepting a recommendation arises only if there is a difference of opinion during consultations between the executive and the judiciary. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice of India, the Governor of the State and the Chief Justice of the High Court-again not anybody else from the legal fraternity or civil society. 358. Similarly, limited primacy is accorded to the political executive. In the event the judiciary does not make a unanimous recommendation for the appointment of a judge of the Supreme Court or the High Courts, the President is entitled to turn down the recommendation. But if the recommendation is unanimous but returned for reconsideration by the President and thereafter unanimously reiterated by the judiciary, then the Council of Ministers is bound by the decision of the judiciary and must advise the President accordingly. 359. Since the Constitution is a flexible document, neither the President nor the Chief Justice of India is precluded from taking the advice of any person, lay or professional. In fact, Justice Verma stated in an interview in this regard as follows: Can you throw light on how, during your tenure as the CJI, appointments took place? For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice of India on the executive that is objected to by the learned Attorney-General as being contrary to the Constitution as framed and it is this that is sought to be 'corrected' by the 99th Constitution Amendment Act. 363. The issue may be looked at from yet another angle. Assuming, the executive rejects the recommendation of the Chief Justice of India even after its unanimous reiteration, what is the solution to the impasse that is created? The answer is to be found in Samsher Singh and reiterated in Sankalchand Sheth. It was held in Samsher Singh that in such an event, the decision of the executive is open to judicial scrutiny. It was said: In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India.[Paragraph 149] 364. This view was reiterated in Sankalchand Sheth. [Paragraph 41] of course, it is another matter that no one has a right to be appointed as a judge, but certainly if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judiciary-he should have been certainly as independent as the Judiciary. But, comparing the articles about the Supreme Court and the articles relating to the Auditor-General, I cannot help saying that we have not given him the same independence which we have given to the Judiciary, although I personally feel that he ought to have far greater independence than the Judiciary itself. [http://parliamentofindia.nic.in/ls/debates/vol8p11a.htm] Similarly, the appointment of the Chief Election Commissioner and the Election Commissioners Under Article 324 of the Constitution does not require the President to consult anybody, even though free and fair elections are undoubtedly vital to our democracy. Since the consultation provision was incorporated only for the appointment of judges, surely, the Constituent Assembly had good reasons for making this distinction. Justice Khehar has referred to other Presidential appointments in his draft judgment and it is not necessary to repeat them. What is important is the 'message' sought to be conveyed by the Constituent Assembly and the sanctity given to a recommendation by the Chief Justice of India for the appointment of a judge of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held to be a part of the basic structure of the Constitution. There is no doubt, and no one has disputed it, that the independence of the judiciary is also a part of the basic structure of the Constitution. 370. The constitutional requirement for amending the Constitution is: (a) The amendment may be initiated only by the introduction of a Bill for the purpose; (b) The Bill may be moved in either House of Parliament; (c) The Bill ought to be passed in each House 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; (d) The Bill shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of that Bill. 371. There is a proviso to Article 368 of the Constitution and for the present purposes, the further requirement is that 'if such amendment seeks to make any change' in Chapter IV of Part V. (The Union Judiciary) and Chapter V of Part VI (The High Courts in the States) the amendment 'shall also require to be ratified by the Legislatures of the States by resolution to that effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext, the learned Chief Justice referred to the Universal Declaration of Human Rights to conclude that certain rights of individuals are inalienable. [Article 8 and 10 of the UDHR are relevant in this regard: Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.] 376. The learned Chief Justice concluded by holding, inter alia: The expression "amendment of this Constitution" does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.Paragraph 475] 377. Justice Shelat and Justice Grover looked at the text of Article 368 as it stood prior to its amendment by the 24th Constitution Amendment Act and observed that there is intrinsic evidence to suggest that the amendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rian society. These limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligation imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution.[Paragraph 666] 380. Justice Khanna dwelt on the basic structure of the Constitution and expressed the view that 'amendment' postulates the survival of the 'old' Constitution without loss of its identity and the retention of the basic structure or framework of the 'old' Constitution. It was held: Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7] 383. It may be mentioned en passant that the aforesaid view expressed by Justice Khanna generated much controversy. That was adverted to by the learned judge in Indira Nehru Gandhi and it was clarified in paragraphs 251 and 252 of the Report that the 'offending' passages were in the context of the extent of the amending power and not in the context of the basic structure of the Constitution. The learned judge clarified that fundamental rights were a part of the basic structure of the Constitution but the right to property was not.[Paragraphs 251 and 252. Justice Bhagwati also adverts to this in Minerva Mills v. Union of India (1980) 3 SCC 625.] 384. Simplistically put, the sum and substance of the decision in Kesavananda Bharati is that it recognized that the Constitution has a basic structure and that the basic structure of the Constitution is unalterable. Perhaps to avoid any doubts and since as many as nine judgments were delivered by the thirteen judges constituting the Bench, a summary of the conclusions was prepared. This summary was signed by nine of the thirteen judges. Among the nine signatories were two learned judges who were in the minority. One of the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 13(1) and (2) of the Constitution. "Basic structure", by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. "The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features--this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. 386. A similar view was taken in State of Karnataka v. Union of India (1977) 4 SCC 608 paragraph 238 (Seven Judges Bench) wherein the above passage from Indira Nehru Gandhi was quoted with approval. It was said by Justice Untwalia in a concurring judgment for himself, Justice Shinghal and Justice Jaswant Singh: Mr. Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made applicable to legislation also. This was assumed to be a logical extension of a principle. It was held: This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the "basic structure" of the Constitution, even though the amendment had been carried out by following the procedure contemplated under "Part XI" of the Constitution. This leads to the determination that the "basic structure" is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the "basic structure" would be unacceptable. 390. For the purposes of the present discussion, I would prefer to follow the view expressed by a Bench of seven learned judges in State of Karnataka v. Union of India that it is only an amendment of the Constitution that can be challenged on the ground that it violates the basic structure of the Constitution-a statute cannot be challenged on the ground that it violates the basic structure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sively as meaning 'destroy' or 'abrogate' etc. but have a limited meaning. The words 'destroy' and 'abrogate' etc. were not used in the context of destroying or abrogating the basic structure of the Constitution. The learned judge clearly said that 'the power of amendment Under Article 368 [of the Constitution] does not enable the Parliament to alter the basic structure of [or] framework of the Constitution....' In fact, this was the precise submission of learned Counsel for the election Petitioner, namely, that the constitutional amendment 'affects the basic structure or framework of the Constitution and is, therefore, beyond the amending power Under Article 368 [of the Constitution].'[Paragraph 173] The learned judge explained this crucial distinction in the following words: The proposition that the power of amendment Under Article 368 does not enable Parliament to alter the basic structure of framework of the Constitution was laid down by this Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharati v. State of Kerala. Apart from other reasons which were given in some of the judgments of the learned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble because of its being confined to one matter. [Paragraph 210] In conclusion it was said by Justice Khanna as follows: As a result of the above, I strike down Clause (4) of Article 329-A on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the Appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election.[Paragraph 213] 395. Similarly, Justice K.K. Mathew who was in the minority in Kesavananda Bharati expressed the view (in Indira Nehru Gandhi) that the majority decision was that by an amendment, the basic structure of the Constitution cannot be damaged or destroyed, and the learned judge proceeded on that basis and held that Clause (4) of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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.[Paragraphs 12 and 13]It appears from the above exposition of the ratio decidendi in Kesavananda Bharati that the words 'alter' and 'damage' are used interchangeably. Similarly, 'damage the basic features' and 'destroy the basic structure' are used interchangeably with 'damage the basic structure' and 'destroy the basic features'. [I am unable to agree with Justice Chelameswar when he says that the 'basic structure' and 'basic features' convey different ideas. Lexicographically-yes, but constitutionally speaking-no they are two dimensions of the same picture. In any event, for the present discussion, the distinction, if any, is not relevant. The bottom line is what is contained in the 'summary' of Kesavananda Bharati, namely: Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. There are two reasons for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the doctrine of constitutional identity. The word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty...... The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day. 400. The 'controversy' is now set at rest with the decision rendered in I.R. Coelho where alteration of the basic structure has been accepted as the test to determine the constitutional validity of an amendment to the Constitution. It was said: The decision in Kesavananda Bharati case was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to six Golak Nath case [1967] 2 SCR 762 (Eleven Judges Bench) was overruled. The majority opinion held that Article 368 did not enable Parliament to alter the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h penalty.[Paragraph 20] 402. This decision dealt with a statute placed in the Ninth Schedule of the Constitution and is, therefore, a class apart as far as the present discussion is concerned. 403. From this analysis, it must be concluded that if a constitutional amendment alters the basic structure of the Constitution, then it can and should be declared unconstitutional. What is of importance is the 'width of power' test propounded by Mr. Palkhivala in Kesavananda Bharati and adopted in M. Nagaraj and now rechristened in I.R. Coelho as the direct impact and effect test 'which means the form of an amendment is not relevant, its consequence would be [the] determinative factor. [Paragraph 70 and 151] 404. In the light of the above discussion the question, therefore, is this: How does the 99th Constitution Amendment Act alter the basic structure of the Constitution, if at all? There is no doubt or dispute that the independence of the judiciary is a basic structure of the Constitution. I have already held that the appointment of a judge to the Supreme Court and a High Court is an integral part of the independence of the judiciary. Therefore, has the introduction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.[Paragraph 7] 410. It is not possible to disagree with the learned Attorney-General in this regard. A statute or a constitutional amendment must always be deemed to be constitutionally valid and it is for those challenging the validity to demonstrate a violation of the Constitution or an alteration of the basic structure of the Constitution, as the case may be. As far as the Petitioners are concerned, it is for them to conclusively show that the 99th Constitution Amendment Act alters the basic structure of the Constitution in that it replaces a well thought-out and fully-discussed method of appointment of judges with another wherein the constitutional role giving significant value to the opinion of the Chief Justice of India is substantively diminished or perhaps eliminated and substituted by the NJAC. The question is not whether the alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation.[Paragraph 4] 413. Similarly, in Indira Nehru Gandhi it was held by Chief Justice Ray as follows: The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of old law and thus make the judgment ineffective. A formal declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the appellate court has to give effect to the altered law and reverse the judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Validating Act by merely saying so unless the defect which has been pointed out by the court is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the court under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the court cannot be ignored.[Paragraph 11] 416. In Re: Cauvery Water Disputes Tribunal (1993) Supp (1) SCC 96 it was pithily stated, on a review of several decisions of this Court that: The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.[Paragraph 76] 417. More recently, in State of Tamil Nadu this Court approved the following conclusion arrived at in Indian Alu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. In other words, one may or may not agree with the content or wisdom of a legislation, but that has nothing to do with the correctness or otherwise of the majority decision taken by a Legislature. This view has been followed in our country as well. 421. The Courts in our country do not question the wisdom or expediency of the Legislature enacting a statute, let alone a constitutional amendment. 422. In one of the earliest cases relating to the wisdom of Parliament in enacting a law, it was contended in A.K. Gopalan v. The State of Madras [1950] 1 SCR 88 (Five Judges Bench) that the Preventive Detention Act, 1950 was unconstitutional. Justice Das expressed the view that: The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution-makers or for the Parliament or the legislature.[Paragraph 532] 426. Justice A.N. Ray expressed his view in the following words: 'Courts are not concerned with the wisdom or policy of legislation. The Courts are equally not concerned with the wisdom and policy of amendments to the Constitution.'[Paragraph 909] 427. Justice Jaganmohan Reddy expressed the same sentiments when the learned judge said: The citizen whose rights are affected, no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have nothing to do with the wisdom or the policy of the Legislature.[Paragraph 1106] 428. On the question of the wisdom of a constitutional amendment which ostensibly improves an existing situation, Justice Khanna expressed the view that this was not justiciable. The Court cannot substitute its opinion for that of Parliament in this regard. It was held: Whether the amendment is in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the validity of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of high policy and courts are concerned with the interpretation of laws, not with the wisdom of the policy underlying them.[Paragraph 661] 432. A similar view was expressed in Karnataka Bank Ltd. v. State of Andhra Pradesh (2008) 2 SCC 254 wherein it was specifically observed by this Court that: In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. [Paragraph 19] 433. In view of the judicial pronouncements, there is absolutely no difficulty in accepting this proposition canvassed by the learned Attorney-General. The constitutional validity of the 99th Constitution Amendment Act has to be tested on its own merit. The question of any Court substituting its opinion for that of the Legislature simply cannot and does not arise. A judge may have a view one way or the other on the collegium system of appointment of judges and on the manner of its implementation-but that opinion can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. 438 Similarly, in Ram Krishna Dalmia the presumption that the Legislature understands and correctly appreciates the needs of the people was reiterated. 439. Finally in Mohd. Hanif Quareshi v. State of Bihar [1959] SCR 629 (Five Judges Bench) this view was endorsed by Chief Justice S.R. Das speaking for this Court (though it may be mentioned that this decision was subsequently overruled on another issue) in the following words: The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. 440. It was observed (on an issue relating to the constitutionality of the death penalty) in Makwanyane [Per Chaskalon, J Paragraphs 88 and 89] as follows: Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us are bound by the Constitution and judges have to abide by the oath of office to uphold the Constitution and the laws, even if the decision is unpopular or unacceptable to Parliament. This is the essence of judicial review otherwise no law passed by Parliament (obviously having a popular mandate) could be struck down as unconstitutional. (f) Passage of time 442. Finally, it was submitted by the learned Attorney-General that the passage of time over the last over sixty years has shown that the system of appointment of judges that was originally operational (in which the executive has the 'ultimate power') and the collegium system (in which the judiciary had shared responsibility) had both yielded some negative results. It was submitted that millions of cases are pending, persons who should have been appointed as judges were not recommended for appointment and persons who did not deserve to be judges were not only appointed but were brought to this Court. The 99th Constitution Amendment Act seeks to correct the imbalances created over a period of time and since constitutional experiments are permissible, the 99th Constitution Amendment Act should be allowed to pass muste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 447. Fortunately for the people of the country, the independence of the judiciary is not a 'task of administration' nor is the Constitution of India a failed experiment nor is there any need for 'making provision for another'. If the basic structure of the Constitution is to be changed, through experimentation or otherwise, then its overthrow is necessary. It is not a simple document that can be experimented with or changed through a cut and paste method. Even though the independence of the judiciary is a basic structure of the Constitution and being a pillar of democracy it can be experimented with, but only if it is possible without altering the basic structure. The independence of the judiciary is a concept developed over centuries to benefit the people against arbitrary exercise of power. If during experimentation, the independence of the judiciary is lost, it is gone forever and cannot be regained by simply concluding that the loss of independence is a failed experiment. The independence of the judiciary is not physical but metaphysical. The independence of the judiciary is not like plasticine that it can be moulded any which way. 448. This is not to say t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the NJAC Act were a 'package deal' and in this he is correct. Both were discussed and debated in both Houses of Parliament almost at the same time, both were sent to the President for assent at the same time and were in fact assented to at the same time and finally both were notified at the same time. The only difference was that while the 99th Constitution Amendment Act had to undergo the ratification process, the NJAC Act did not. It was therefore a 'package deal' presented to the country in which the 99th Constitution Amendment Act and the NJAC Act were so interlinked that one could not operate without reference to the other. In fact, Mr. Nariman submitted that the NJAC Act should also have undergone the ratification process, but he was unable to support his argument with any law, judicial precedent, convention or practice. This question is left open for greater discussion at an appropriate stage should the occasion arise. 452. Be that as it may, in the context of a challenge to a statute, it was submitted by the learned Attorney-General that the principles for such a challenge are quite different from a challenge to a constitutional amendment. He is right i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Constitution such as for example, Articles 276(2), 286 etc., and (3) the law or the relevant portion thereof should not be invalid Under Article 13 for repugnancy to those freedom which are guaranteed by Part III of the Constitution which are relevant to the subject-matter of the law. 456. This view was taken forward in Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651 paragraph 61 and 62 (Five Judges Bench) wherein it was held that the procedure for enacting a 'law' should be followed. Although it is not expressly stated, but it appears that if the procedure is not followed then the 'law' to that extent will have no effect. In this case, it was held that Paragraph 7 of the Tenth Schedule to the Constitution needed ratification in terms of Clause (b) of the proviso to Article 368(2) of the Constitution. It was held: That having regard to the background and evolution of the principles underlying the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief". (Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. (Internal citations omitted) Article 122 of the Constitution 460. Before dealing with the substantive issue of the challenge before us, it may be mentioned that Mr. Fali S. Nariman contended that Parliament did not have the competence to pass the NJAC Act until the 99th Constitution Amendment Act was brought into force or at least it had the assent of the President. It is not possible to accept this submission since the passage of the 99th Constitution Amendment Act and the NJAC Act was contemporaneous, if not more or less simultaneous. In view of Article 122(1) of the Constitution which provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure, it is not possible to delve into the proceedings in Parliament. 461. In Babulal Parate v. State of Bombay 1960 (1) SCR 605 (Five Judges Bench) this Court added, by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion 464. Though no one has a right to be appointed a judge either of the Supreme Court or a High Court, it does not mean that the President can decline to appoint a person as a judge without any rhyme or reason nor does it mean that the President can appoint any eligible person as a judge. Under the Government of India Act, 1919 and the Government of India Act, 1935 the Crown had the unfettered discretion to do both or either. The Constituent Assembly did not give this unfettered power to the President and, therefore, mandated consultation between the President and the Chief Justice of India for the appointment of a judge of the Supreme Court. There were reasons for this as mentioned above. Prior to the 99th Constitution Amendment Act, Under Article 124(2) of the Constitution, the President had the discretion to consult some other judges of the Supreme Court or the High Courts, as the President thought necessary for the purpose. The same constitutional position prevailed (mutatis mutandis) so far as the appointment of a judge of a High Court Under Article 217(1) of the Constitution was concerned. Article 124(2) of the Constitution had three basic ingredients: The power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Justice of India 'if he is considered fit to hold the office' and for recommending names for appointment as a judge of the Supreme Court persons who are eligible to be so appointed. Interestingly, the NJAC 'shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation' (Section 5 of the NJAC Act). A somewhat similar procedure has been provided for recommending the appointment of the Chief Justice of a High Court and a judge of a High Court (Section 6 of the NJAC Act). 470. The President may accept the recommendation of the NJAC for the appointment of a particular person as a judge, but may also require the NJAC to reconsider its recommendation. If the NJAC affirms its earlier recommendation the President shall issue the warrant of appointment (Section 7 of the NJAC Act). 471. The officers and employees of the NJAC shall be appointed by the Central Government in consultation with the NJAC and the convener of the NJAC shall be the Secretary to the Government of India in the Department of Law and Justice (Section 8 of the NJAC Act). 472. The procedure for the transfer of judges from one High Court to anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;The CRA provided for the establishment of an independent Judicial Appointments Commission (JAC). The JAC was made responsible for operating the appointments process and making recommendations to the Lord Chancellor for all but the most senior appointments. For these very senior appointments (to the Court of Appeal, and the offices of Head of Division, Lord Chief Justice, and the president, deputy president and members of the UK Supreme court), separate provision was made for recommendations to be made to the Lord Chancellor by specially constituted selection panels. For each appointment, the JAC, or the specially constituted selection panel, was required to make one recommendation to the Lord Chancellor.[Page 54] In practice, as I found out through painful experience, there were a number of problems with this set-up.[Page 55] I accept that the role of the Lord Chancellor in relation to High Court and Court of Appeal appointments should be limited. But for the two groups of our most senior judges, and for different reasons, in my view the Lord Chancellor should have a greater role than is provided for by the Constitutional Reform Act, or than is likely to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led wording and the expectation in practice make it very difficult for the Lord Chancellor to exercise even his limited powers to reject or request a reconsideration of a recommendation. As is a matter of record in the press, there was one occasion when, as Lord Chancellor, I sought to use these powers. Since I have always observed the confidentiality necessary for the consideration of such appointments, I am not here going into any detail. I hope, however, that it will be accepted that I would not have sought to exercise these powers unless I believed that I had good grounds within the Act for doing so I did-good grounds, as many can now see. I went to considerable lengths to ensure that my actions could not be construed, which they were not remotely, as party political. In the event, the matter was not seen through to a conclusion. Partisans to the appointment-not anyone directly involved in the process-leaked extensive detail to the press, an election was looming; I confirmed the appointment. [Page 57-59] 477. Adverting to this lecture and the actual working of the CRA, it is said that for making senior level judicial appointments, it is 'impossible for the Lord Chancellor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout the other. The discussion will be in the light of this submission. 480. At the outset, it is important to note that the package is incomplete. The 99th Constitution Amendment Act and the NJAC Act raise a series of unanswered questions. For example, how is the NJAC expected to perform its duties? Will there be any transparency in the working of the NJAC and if so to what extent? Will privacy concerns of the 'candidates' be taken care of? Will issues of accountability of the NJAC be addressed? The learned Attorney-General submitted that a large number of hypothetical issues and questions have been raised not only by the Petitioners but also by the Bench and it is not possible to answer all of them in the absence of a composite law and Regulations being framed in accordance with the postulates of the 99th Constitution Amendment Act. This submission of the learned Attorney-General cannot be appreciated particularly in view of his contention, raised on more than one occasion, that what is enacted by the 99th Constitution Amendment Act is a package deal. Unless all eventualities are taken care of, the package deal presented to the country is an empty package with the wrapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent/Council of Ministers/Prime Minister ask for reconsideration of a recommendation made by the NJAC to which the Law Minister (a member of the Cabinet) is a party? Would this be permissible particularly since the Law Minister represents the Union Government/President in the NJAC and would it not go against the well established principle of Cabinet responsibility? Alternatively, would it not undermine the authority of the Law Minister if in a given case the Law Ministers agrees to an appointment but the Council of Ministers does not accept it? More importantly, is the Council of Ministers/President an oversight body as far as the NJAC is concerned? 485. Assuming (despite the above doubts) that the Council of Ministers/President requires the NJAC to reconsider its recommendation and on reconsideration the NJAC reiterates its recommendation, the President will be bound thereby even if it means overruling the objections of the Chief Justice of India. The objection to this process of appointment of judges is two-fold. Firstly, the authority that is statutorily conferred on the NJAC to bind the President by the NJAC Act is well beyond the power conferred by Article 124(2) of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment. It may be recalled that Article 124(2) of the Constitution enables the President to consult judges of the Supreme Court and the High Court but that entitlement is now taken away by the 99th Constitution Amendment Act. The President, in the process, is actually reduced to a dummy. 487. It may also be recalled that the President (as an individual) had expressed a viewpoint as reported in India Today magazine of 25th January, 1999 concerning the appointment of judges of the Supreme Court. The existence of such a possibility is now not possible since the President (as an individual) has really no role to play in the appointment process except issuing a warrant of appointment when asked to do so. 488. The sum and substance of this discussion is that there is no clarity on the role of the President. In any event, the discretion available to the President to consult judges of the Supreme Court in the matter of appointment of judges is taken away; the decision of the President is subject to the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;veto' being conferred on any person in the NJAC. But the NJAC Act effectively gives that power to all members of the NJAC despite the 99th Constitution Amendment Act. This is evident from the provisions of the NJAC Act which enable two persons, one of them being the Law Minister to veto the unanimous opinion of the three participating judges (including the Chief Justice of India). Therefore, even if the Judiciary as a whole and as an institution (that is the three participating judges) is in favour of a particular appointment, that unanimous opinion can be rendered worthless by any two other members of the NJAC, one of whom may very well include the Law Minister representing the political executive and another having perhaps nothing to do with justice delivery. This is certainly not what the Constitution, as framed, postulated or intended. 492. To get over this outlandish situation it was suggested (as an alternative argument) by Mr. K.K. Venugopal appearing for the State of Madhya Pradesh that the unanimous opinion of the three participating judges should have overriding weight, that is a veto over a veto or a 'tie break vote'. Mr. Venugopal puts this Court in a Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions. The entire scheme of appointment of judges postulated by the Constituent Assembly is made topsy-turvy by the 99th Constitution Amendment Act and the NJAC Act. If this does not alter the basic structure of the Constitution, what does? (c) Eminent persons and the veto 495. The inspiration for having eminent persons in the NJAC comes from the Report of the NCRWC which made this recommendation as a part of the democratic process of selecting a judge of the Supreme Court or the High Court. Article 124A(1)(d) of the Constitution provides for two eminent persons to be nominated as members of the NJAC. The nomination is by a Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha or where there is no such Leader, then the Leader of the single largest Opposition Party in the Lok Sabha. The first proviso mandates that one of the eminent persons shall be nominated from amongst persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women. 496. The apprehension expressed by some learned Counsel appearing for the Petitioners is that since no guidelines have been laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. [Paragraph 468] 499. Justice Pandian in a separate but concurring opinion held the same view and expressed it in the following words: It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or Scheduled Castes or Scheduled Tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.[Paragraph 216(3)] 500. In Centre for PIL v. Union of India (2011) 4 SCC 1 the question relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in the appointment process. In fact, Justice Verma acknowledged that he had sought the views of eminent lawyers while considering recommendations for the appointment of judges. If the Committee cannot be trusted to nominate 'eminent' persons, perhaps no other committee can. The trust placed on the Committee is not a simple or statutory trust but a constitutional trust. In this regard, it is worth recalling the words of Justice Krishna Iyer in Bhim Singhji: The confusion between the power and its oblique exercise is an intellectual fallacy we must guard against. Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation. The legislature cannot be stultified by the suspicious improvidence or worse of the Executive.[Paragraph 20] 504. It is, therefore, not advisable to be alarmist, as some learned Counsel for the Petitioners were, but at the same time possible abuse of power cannot be wished away, as our recent history tells us. Perhaps far better and precise legislative drafting coupled with a healthy debate is a solution, but, what is of significance is the decision-taking (as distinguished from de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised to the 'eminent person' category is that such a person might not have any knowledge of the requirements of the judiciary and would not be able to make any effective contribution in the selection of a judge. It was submitted that the eminent person must have some background of law and the judiciary. In principle this argument is quite attractive, but really has little substance. Several members of the Constituent Assembly had no training or background in law and yet they contributed in giving us a glorious Constitution. One of the finest minds that we have today-Professor Amartya Sen-has had no training or background in law and yet has given us The Idea of Justice an important contribution to jurisprudence, the idea of justice in an organizational sense (niti) and the idea of realized justice (nyaya). Therefore, it would not be correct to say that an eminent person in the NJAC (or as an outside consultant) must have some connection with the law or justice delivery. If the eminent person does have that 'qualification' it might be useful, but it certainly need not be absolutely necessary. 508. Finally, it was argued that the requirement that one eminent person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly an unconstitutional check on the authority of the President and the Chief Justice of India. 510. The sum and substance of this discussion is that in principle, there can be no objection to consultation with eminent persons from all walks of life in the matter of appointment of judges, but that these eminent persons can veto a decision that is taken unanimously or otherwise by the Chief Justice of India (in consultation with other judges and possibly other eminent persons) is unthinkable-it confers virtually a monarchical power on the eminent persons in the NJAC, a power without any accountability; the categories of eminent persons ought not to be limited to scheduled castes, scheduled tribes, other backward classes, minorities or women but that is a matter of policy and nothing more can be said about this, except that a rethink is necessary; there can be no guidelines for deciding who is or is not an eminent person for the purposes of nomination to the NJAC, but that the choice is left to a high powered committee is a sufficient check, provided the decision of the committee is unanimous. (d) Law Minister 511. The presence of the Law Minister in the NJAC was objected to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feature of our Constitution and if it means what we have discussed above, then the Framers of the Constitution could have never intended to give this power to the executive. Even otherwise the Governments-Central or the State-are parties before the Courts in large number of cases. The Union Executive have vital interests in various important matters which come for adjudication before the Apex Court. The executive-in one form or the other-is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator-between the people and the executive-the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. This Court in S.P. Gupta case proceeded on the assumption that the independence of judiciary is the basic feature of the Constitution but failed to appreciate that the interpretation, it gave, was not in conformity with broader facets of the two concepts-'independence of judiciary' and 'judicial review'-which are interlinked. [Paragraph 335] In view of this, there can be no doubt that the Government of India is a major li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en set up has an important member of the political executive as a part of this body, which is rather anachronistic. 518. It must also be realized that as mentioned in the First Judges case two countries Australia (today having a total of about 200 judges in the High Court and the State Supreme Courts) and New Zealand (today having a total of about 20 judges [in the Supreme Court and in the Court of Appeal]) were veering round to having a judicial appointment commission for the higher judiciary. [Justice Bhagwati: "We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary. As recently as July 1977 the Chief Justice of Australia publicly stated that the time had come for such a commission to be appointed in Australia. So also in New Zealand, the Royal Commission on the Courts chaired by Mr. Justice Beattle, who has now become the Governor-General of New Zealand, recommended that a Judicial Commission should consider all judicial appointments including appointments of High Court Judges." [ Paragraph 31] We were informed during the hearing of these petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess. Indeed, in our view, 'political' considerations, in the sense of responsibility and accountability for appointments, need to be intensified rather than obscured. What an appointments model should attempt to do is attenuate the direct influence of the political branch on the appointment process and subject its involvement in the appointment process to greater transparency and accountability, while preserving all the existing constitutional arrangements for ensuring decisional independence. [Appointing Australian Judges: A New Model by Simon Evans and John Williams, [2008] Sydney Law Review Volume 30 page 295. See http://sydney.edu.au/law/slr/slr30_2/Evans.pdf] 520. In South Africa, while dealing with judicial appointments, Justice Yvonne Mokgoro, former judge of the Constitutional Court had this to say: Thus, judicial transformation in South Africa must include a new judicial appointments procedure which is open and independent of external influence; changing the demographics of the Bench, in particular with regards to race and gender as critical aspects of shaping the form of a judiciary which serves an open and democratic society; appreciating that judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judges but more so the institutions vested with the responsibility of dispensing justice. To that end, judicial independence remains one of the cornerstones of democracy and constitutionalism the world over, remaining the central goal of most legal systems. It has been noted that the independence of the judiciary necessitates that there should be freedom from influence or control from the executive and legislative branches of the Government. To achieve this important goal, systems of appointment of judicial officers are seen as crucial to ensuring that the independence of the judiciary is achieved. Whilst there is general consensus on the importance of judicial independence, different legal systems have utilized various methods of appointing occupants of judicial office. These include; a) appointment by political institutions; b) appointment by the judiciary itself; c) appointment by a judicial council (which may include non-judge members) and sometimes d) selection through an electoral system. This diversity at the very least indicates that there exists no general consensus on the best approach to guarantee judicial independence. That notwithstanding, the mechanisms for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he executive in decision-taking, but the inclusion of the Law Minister in the NJAC is counter-productive, historically counter-majoritarian and goes against the grain of various views expressed in various committees-more so since the Law Minister can exercise a veto in the decision-taking body; the presence of the Law Minister in the NJAC is totally unnecessary and ill-advised; the presence of the Law Minister in the NJAC casts a doubt on the principle of Cabinet responsibility. (e) The NJAC and the impact on mandatory consultation 526. Article 124(2) of the Constitution as originally framed made it mandatory for the President to consult the Chief Justice of India in the appointment of judges. The rationale behind this has already been discussed. The 99th Constitution Amendment Act completely does away with the mandatory consultation. The President is not expected to consult anybody in the appointment process-he/she is expected to act only on the recommendation of the NJAC. The authority that the President had to turn down a recommendation made by the collegium, if it was not unanimous, is now taken away from the President who is obliged to accept a recommendation from the NJAC e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other judges may not be aware of them. It is for this reason that the Constituent Assembly made it mandatory for consultation between the Chief Justice of India (as the head of the Judiciary) having vital inputs on the potential of a person being a good judge and the President (as the Head of State acting through the Council of Ministers with the Prime Minister as the head of the Executive) being the best judge to assess the personal traits of a person being considered for appointment as a judge. In other words, the Chief Justice of India is the 'expert' with regard to potential while the executive is the 'expert' with regard to the antecedents and personal traits. Since these two facets of the personality of a would-be judge are undoubtedly distinct, there cannot be a difference of opinion between the judiciary and the executive in this regard since they both express an opinion on different facets of a person's life. The Chief Justice of India cannot comment upon the 'expert opinion' of the executive nor can the executive comment upon the 'expert opinion' of the Chief Justice of India. 529. It is for the Chief Justice of India as the head of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that every improper enhancement of its own power by Parliament, be it Clause (4) of Article 329-A or Clauses (4) and (5) of Article 368 or Section 4 of the 42nd Amendment has been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made directive principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms."] The 99th Constitution Amendment Act unconstitutionally minimizes the role of the Chief Justice of India and the judiciary to a vanishing point in the appointment of judges. It also considerably downsizes the role of the President. This effaces the basic structure of the independence of the judiciary by sufficiently altering the process of appointment of judges to the Supreme Court and the High Court, or at least alters it unconstitutionally thereby striking at the very basis of the ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affected but a dominant executive can ensure that the statutory rights would have no meaning and the fundamental rights of the people of the country can be easily trampled upon. Highlighting the impact of the judiciary (generally) on the Rule of Law and particularly on the rights and interests of individuals, Chief Justice Mason of Australia had this to say: "Another factor relevant to the mode of selection of judges is the judiciary's position as an important branch or institution of government. The judges exercise public power in a way that has substantial impact upon the rights and interests of individuals and upon the making of important decisions by government, government agencies and other organisations.[The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE, formerly Chief Justice of Australia http://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph1/fbmason.htm] 534. The Constituent Assembly was well aware of the misuse and abuse of power by the executive, having fought for our freedom and knew and understood the value of an independent judiciary. It is for this reason that the Constituent Assembly gave prime importance to the indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of judges; the 99th Constitution Amendment Act and the NJAC Act have reduced the consultation process to a farce-a meaningful participatory consultative process no longer exists; the shared responsibility between the President and the Chief Justice of India in the appointment of judges is passed on to a body well beyond the contemplation of the Constituent Assembly; the possibility of having committed judges and the consequences of having a committed judiciary, a judiciary that might not be independent is unimaginable. (f) The NJAC and the appointment of High Court judges 538. As far as the appointment of a judge of a High Court is concerned, the 99th Constitution Amendment Act and the NJAC Act have made two extremely significant changes in the process of appointment. Firstly, the mandatory requirement for consultation with the Chief Justice of the High Court has been completely dispensed with. Article 217(1) of the Constitution as it was originally enacted made it mandatory for the President to consult the Governor of the State and the Chief Justice of the High Court in the appointment of a judge of a High Court. The Chief Justice has now been left out in the cold. Secondly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment Act and Section 6 of the NJAC Act is that the entire control over the appointment of a judge of a High Court is taken over by the NJAC and the paradigm is completely altered with the Chief Justice of a High Court downgraded from a mandatory consultant, and the originator of a recommendation for appointment as postulated by Article 217(1) of the Constitution as conventionally understood, to someone who merely makes a nomination and thereafter is not required to be consulted one way or the other with respect to the nomination made. This drastic change in the process of appointment of a judge of a High Court obviously has a very long term impact since it is ultimately from the 'cadre' of High Court judges that most Supreme Court judges would be appointed, if the existing practice is followed. This in turn will obviously have a long term impact on the independence of the judiciary apart from completely altering the process for appointment of a judge of a High Court. 542. The appointment of judges is a very serious matter and it is difficult to understate its importance. Referring to a view expressed by Shimon Shetreet [Shimon Shetreet, Judges on Trial (North-Holland P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court was declared void ab initio since he did not possess the eligibility requirement. [Reference Re Supreme Court Act, Sections 5 and 6, [2014] 1 SCR 433] Instances of this nature, fortunately few and far between have shaken public confidence in a system of appointment of judges where primacy is with the executive, hence the desire to shift to an efficacious alternative. While there might be a need for a more efficient or better system of appointment of judges, the NJAC is not the stairway to Heaven, particularly in view of the various gaps in its functioning, the NJAC system downgrading the President and the Chief Justice of India and incorporating a host of other features that severely impact on the appointment of judges and thereby on the independence of the judiciary and thereby on the basic structure of the Constitution. 545. It was submitted by the learned Attorney-General that there is a disenchantment with the collegium system of appointment of judges and that is why it needs to be replaced or substituted and that is precisely what the 99th Constitution Amendment Act has achieved. The learned Attorney-General referred to the NJAC as the third chapter in the appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken only for nomination purposes but not taken as a consultant in so vital a matter as the appointment of a judge; the constitutional importance given to the Chief Justice of a High Court has been completely whittled down virtually to a vanishing point. Convenor of the NJAC 549. There are some peripheral issues that need to be discussed. The involvement of the executive in the NJAC does not stop with the Law Minister being one of its members. The Secretary to the Government of India in the Department of Justice is the convenor of the NJAC in terms of Section 8(3) of the NJAC Act. The duties and responsibilities of the convenor have not been delineated in the NJAC Act and, as mentioned above, the rules and Regulations under the Act have not been framed. It is therefore difficult to appreciate the functions that the convenor is expected to perform. 550. That apart, the Secretary is an officer of the government and is not answerable to the NJAC. The Secretary is paid a salary and allowances from the government coffers. This is quite unlike officers of the High Courts or the Supreme Court who are directly answerable to their respective Chief Justice. Moreover, their salary and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our land Under Article 21 of our Constitution. 555. The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the learned Attorney-General that the proceedings of the NJAC will be completely transparent and any one can have access to information that is available with the NJAC. This is a rather sweeping generalization which obviously does not take into account the privacy of a person who has been recommended for appointment, particularly as a judge of the High Court or in the first instance as a judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy. The balance between the two implied fundamental rights is difficult to maintain, but the 99th Constitution Amendment Act and the NJAC Act do not even attempt to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue.[paragraph 15] 560. In State of T.N. v. K. Shyam Sunder (2011) 8 SCC 737 the two extant views on the subject have been noted. In paragraph 56 of the Report, it is pointed out that on the repeal of a statute it is effectively obliterated from the statute books and even if the amending [repealing] statute is declared unconstitutional on the ground of lack of legislative competence in the Legislature, the repealed statute will not revive. This is what was said: In State of U.P. v. Hirendra Pal Singh this Court held: (SCC p. 314, para 22) 22. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided Under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate on an appropriate occasion. 561. But, quite apart from this, if the contention of the learned Solicitor-General is accepted, then on the facts of this case, the result would be calamitous. The simple reason is that if the 99th Constitution Amendment Act is struck down as altering the basic structure of the Constitution and if Article 124(2) in its original form is not revived then Article 124(2) of the Constitution minus the words deleted (by the 99th Constitution Amendment Act) and minus the words struck down (those inserted by the 99th Constitution Amendment Act) would read as follows: Article 124(2) as it was originally Article 124(2) after the 99th Constitution Amendment Act Article 124(2) after the 99th Constitution Amendment is struck down and the original Article 124(2) is not revived (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: (2) Every Judge of the Supreme Court shall be appointed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a recommendation for appointment by the Chief Justice of India. The President was presented, by Second Judges case and the Third Judges case, with the result of the consultation exercise carried out by the Chief Justice of India which the Chief Justice of India was mandated to do. It is over and above this that the President was entitled to consult other judges of the Supreme Court or the High Courts. However, the 99th Constitution Amendment Act and the NJAC Act have taken away this freedom of consultation from the President, who has no option but to take into account only the recommendation of the NJAC and not travel beyond that. Once again, the constitutional significance and importance of the President is considerably reduced, if not taken away. 566. Dr. Ambedkar was opposed to the concurrence of the Chief Justice of India (as an individual) in respect of every appointment of a judge. The Second Judges case made it mandatory for the Chief Justice of India to take the opinion of other judges and also left it open to the Chief Justice of India to consult persons other than judges in this regard. The opinion of the Chief Justice of India ceased to be an individual opinion (as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the National Judicial Appointments Commission Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute and it violates Article 14 of the Constitution and is declared unconstitutional. Even otherwise, the National Judicial Appointments Commission Act, 2014 cannot stand alone in the absence of the Constitution (Ninety-ninth Amendment) Act, 2014. 569. The result of this declaration is that the 'collegium system' postulated by the Second Judges case and the Third Judges case gets revived. However, the procedure for appointment of judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested learned Counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed. Unfortunately, we received no response, or at best a lukewarm response. Under the circumstances, in my opinion, we need to have a 'consequence hearing' to assist us in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a particular matter. No doubt, these examples are not exhaustive. 575. Guidelines on the ethical conduct of the Judges were formulated in the Chief Justices' Conference held in 1999 known as "Restatement of Judicial Values of Judicial Life". Those principles, as a matter of fact, formed the basis of "The Bangalore Principles of Judicial Conduct, 2002" formulated at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague. It is seen from the Preamble that the Drafting Committee had taken into consideration thirty two such statements all over the world including that of India. On Value 2 "Impartiality", it is resolved as follows: Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Application: 2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice. 2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. 2.3 A judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill-will. Therefore, I am of the view that it is the constitutional duty, as reflected in one's oath, to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping. In Public Utilities Commission of District of Columbia et al. v. Pollak et al 343 U.S. 451 (1952), the Supreme Court of United States dealt with a question whether in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programmes through loudspeakers in its passenger vehicles. Justice Frankfurter was always averse to the practice and he was of the view that it is not proper. His personal philosophy and his stand on the course apparently, were known to the people. Even otherwise, he was convinced of his strong position on this issue. Therefore, stating so, he recused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple that Justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in (Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Ors. etc. (1968) 3 WLR 694 at 707). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings. There may be situations where the mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus making an attempt for forum shopping by raising baseless submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to "administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law". To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself. (Emphasis supplied) The above principles are universal in application. Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue." (Emphasis supplied) This principle, settled by a Bench of seven Judges, should have been taken as binding by the Bench dealing with the First Judges Case which had a coram only of seven. Unfortunately, it held otherwise, though with a majority of four against three. Strangely, the presiding Judge in the First Judges case and author of the majority view, was a member who concurred with the majority in Samsher Singh case (supra) and yet there was not even a reference to that judgment in the lead judgment! Had there been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and Third Judges Cases. Apparently, on account of certain allegedly undeserving appointments, which in fact affected the image of the judiciary, the politico Executive started a new campaign demanding reconsideration of the procedure of appointment. It was clamoured that the system of Judges appointing Judges is not in the spirit of the Constitution, and hence, the whole process required a structural alteration, and thus, the Constitution 99th Amendment whereby the selection is left to a third body, the National Judicial Appointments Commission (NJAC). The Parliament also passed the National Judicial Appointments Commission Act, 2014, which is only a creature of Constitution 99th Amendment. The validity of the Act is also under challenge. 'What is the big deal about it?', has been the oft made observation of my esteemed brother Khehar, J., the presiding Judge, in the thirty days of the hearing of the case, which included an unusual two weeks long sitting during the summer vacations with the hearing in three different Courts, viz., Court Nos. 3, 4 and 6. When it is held, and rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... textual argument, argument that is drawn from a consideration of the present sense of the words of the provision. At times textual argument is confused with historical argument, which requires the consideration of evidence extrinsic to the text. The third type of constitutional argument in structural argument. Structural arguments are claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. The fourth type of constitutional argument is prudential argument. Prudential argument is self-conscious to the reviewing institution and need not treat the merits of the particular controversy (which itself may or may not be constitutional), instead advancing particular doctrines according to the practical wisdom of using the courts in a particular way. Finally, there is doctrinal argument, argument that asserts principles derived from precedent or from judicial or academic commentary on precedent. Professor (Dr.) Upendra Baxi has yet another tool-'episodic', which according to him, is often wrongly used in interpreting the Constitution. To Dr. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Arizona Constitution, Article IV, Part 1, to the extent relevant, reads as follows: Section 1. (1) Senate; house of representatives; reservation of power to people. The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature. Thus, Under Section 1, people are involved in direct legislation either by the process known as 'initiative' or 'referendum'. While the initiative allows the electorate to adopt positive legislation, referendum is meant as a negative check. Popularly, the process of initiative is said to correct 'sins of omission' by the Legislature while the referendum corrects 'sins of commission' by the Legislature. In 2000, Arizona voters adopted Proposition 106, an initiative aimed at the problem of gerrymandering. Proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election Regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded. xxx The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. See Vieth v. Jubelirer 541 U.S. 267 (2004); ante, at 1. But our inability to find a manageable standard in that area is no excuse to abandon a standard of meaningful interpretation in this area. This Court has stressed repeatedly that a law's virtues as a policy innovation cannot redeem its inconsistency with the Constitution. (Emphasis supplied) While wholly agreeing with the historic, textual, prudential and doctrinal approaches made by Khehar and Lokur, JJ., my additional stress is on the structural part. The minority in Arizona case (supra), to me, is the correct approach to be made in this case. Separation of powers or say distribution of powers, as brother Lokur, J. terms it, is the tectonic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to me, does not appeal even to common sense. The 99th Amendment sought to 'substitute' a few provisions in the Constitution and 'insert' a few new provisions. Once the process of substitution and insertion by way of a constitutional amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive. That alone can be the reasonably inferential conclusion. Legal parlance and common parlance may be different but there cannot be any legal sense of an issue which does not appeal to common sense. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of 2015, which has been treated as the lead petition. 2. I have perused the erudite opinions of my esteemed brothers. While I respectfully agree with the conclusions arrived at by Khehar J., Lokur J. and Kurian Joseph J., and respectfully disagree with the view of Chelameswar J. I prefer to record my own reasons. Pre-Amendment Scheme of Appointment and Transfer of Judges 3. The scheme of appointment and transfer of Judges in force prior to the amendment is set out in two memoranda dated 30th June, 1999 issued by the Government of India-first for appointment of Chief Justice of India (CJI) and judges of the Supreme Court and second for appointment and transfer of Chief Justices and the judges of the High Courts. 3.1. Broadly the procedure laid down in the first memorandum is that appointment to the office of the CJI should be of the senior most judge of the Supreme Court considered ft to hold the office. For this purpose, recommendation is sought from the outgoing CJI and if there is doubt about the fitness of the senior most judge, consultation is made with the other judges Under Article 124(2). Thereafter, the Law Minister puts up the matter to the Prime Minister (PM) who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and these opinions are sent to the Chief Minister, along with the recommendation. If the Chief Minister desires to recommend a name, he has to forward the same to the Chief Justice for his consideration. A copy of the recommendation is also sent to the CJI and the Union Law Minister. The Chief Minister advises the Governor who forwards his recommendation to the Law Minister. The Law Minister considers the recommendation in the light of such other reports (such as I.B. report) as may be available to the Government and then forwards the material to the CJI. CJI consults two senior most Judges and also takes into account the views of the Chief Justice and Judges of the High Court (consulted by the Chief Justice) and those Judges of the Supreme Court who are conversant with the affairs of the candidate. Thereafter the CJI sends the recommendation to the Union Law Minister along with the correspondence with his colleagues. If the Law Minister considers it expedient to refer back the name for opinion of the State Constitutional Authorities, opinion of the CJI must be obtained. The Law Minister then puts up the recommendation to the PM who advises the President. The correspondence betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to the High Court it should emanate from the Chief Justice of the High Court and the last word on appointment must rest with the CJIParas 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J., Para 486, Verma, J., Para 505, Punchhi, J. in Second Judges' case. This Court noted that by convention proposals for appointments were always initiated by the judiciary and appointments were made with the concurrence of the CJI. This view was reiterated in Third Judges' case on the basis of which the above memoranda were issued by the Government of India. Scheme under the Amendment 4. Reference may now be made to the impugned Amendment. It amends Article 124 and provides that such appointments and transfers will now be on the recommendation of the NJAC (Section 2). Requirement of mandatory consultation with the CJI and consultation with such Judges as may be considered necessary has been deleted. Convention of initiation of proposal by Chief Justice for the High Courts and CJI for the Supreme Court and other scheme as reflected in the memoranda earlier mentioned and as laid down in decisions of this Court has been replaced. The amendment inserts a new Article 124A, under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make Regulations consistent with the Act and the Rules. The Rules and the Regulations framed under the Act are required to be placed before the Parliament, which may modify such rules or Regulations (Sections 12, 13). 7. The statement of objects and reasons of the amendment mentions that this Court had interpreted the word "consultation" as "concurrence" in Articles 124(2) and 217(2) of the Constitution (Section 2). It further states that after review of the constitutional provisions, pronouncements of this Court and consultation with eminent jurists, it was felt that a broad based National Judicial Appointments Commission should be established for making recommendation for appointment of judges of the Supreme Court and the High Courts. The Commission will provide meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable while also introducing transparency in the selection process (Section 3). 7.1. Though by notification dated 13th April, 2015, the Amendment and the Act have been brought into force, the Commission has not been constituted so far, as two eminent persons have not been so far appointed. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.". 7.3. The relevant constitutional and statutory provisions are set out separately in an Appendix to this opinion. Rival Contentions 8. The Amendment Act is challenged as ultra vires, inter alia for being beyond the competence of the Parliament as it alters and destroys the basic structure of the Constitution, as embodied in the independence of judiciary in the context of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp;(iv) Independence of judiciary and separation of powers are part of basic structure; (v) Primacy of judiciary in appointment of judges is crucial 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 being kept at minimum was also part of basic 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 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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in framing Regulations. The presence of Law Minister as a member of the NJAC ensures accountability to public. The presence of two eminent persons is a check and balance on the functioning of other members. Diversity of members will ensure greater accountability of each member to the other. This will ensure greater public confidence in the functioning of the judiciary. The NJAC will fall under the purview of Right to Information Act, 2005 which will ensure transparency. Even if the Amendment was struck down, original provisions could not be revived as doctrine of revival does not apply to Constitutional Amendments. The issue was raised in Property Owners' Association v. State of Maharashtra (1996) 4 SCC 49 with respect to Article 31C of the Constitution which is pending before a nine-judge Bench. It is also submitted that the writ petition is pre-mature as the new system has not been given a chance to operate and no rights have been affected. 11. The contentions on behalf of the Respondents can be summed up as follows: (a) Power of appointment of judges rests with the executive and role of judiciary is confined to consultation which may or may not be accepted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Attorney General Shri Mukul Rohtagi, learned Solicitor General Shri Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. Venugopal, Harish N. Salve, T.R. Andhyarujina, Dushyant Dave learned senior Counsel and other learned Counsel for various States and intervenors or otherwise. I record my gratitude to learned Counsel for their painstaking assistance to the Court with their exceptional ability and skill for deciding important issues arising for consideration. Their contentions will be referred to at appropriate stage to the extent necessary. 13. While generally learned Counsel on either side have taken identical stand, Shri Venugopal, appearing for the State of M.P., which is otherwise supporting the amendment, in his alternative submission, filed on 14th July, 2015 by way of additional propositions, inter alia submitted as follows: 3. Looking at the scheme of the 99th Amendment and the National Judicial Commission Appointments Act, 2014 (NJAC Act), the scheme evolved provides for the constitution of a 6 member Commission and Under Article 124-C, for the procedure to be provided under a law made by the Parliament. The NJAC Act has certain salient features ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the three judges is opposed by the other three members. Needless to state, that if the three judges are not ad idem on a candidate, no 'issue of primacy' would arise and the majority would prevail. 8. It is true that the nine judges case can no more hold the field for the purpose of nullifying the 99th amendment, which, obviously, is inconsistent with the Collegium system evolved by the nine judges judgment. But that does not mean that the principles enunciated by the said judgment could not be relied upon as being a juristic principle that would be applicable in such cases. In other words, these principles can be said to be relevant for all time to come because of the following reasons: a. The power of appointment can be used to affect or subvert the independence of the appointees when functioning as members of the superior judiciary. b. A system of appointment where the executive voice predominates would affect such independence. c. If however, the voice of the Chief Justice of India, representing the judiciary prevails, even in a system where the executive or anyone else has a minor part to play, this will nevertheless not aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istent with the basic structure of the Constitution, the core issue for consideration is whether the impugned amendment alters or damages the said basic structure and is void on that ground. According to the Petitioners the primacy of judiciary in appointment of judges and absence of interference by the Executive therein is by itself a part of basic feature of the Constitution being integral part of independence of judiciary and separation of judiciary from the Executive. According to the Respondents primacy of judiciary in appointment of judges is not part of independence of judiciary. Even when appointments are made by Executive, independence of judiciary is not affected. Alternatively in the amended scheme, primacy of judiciary is retained and independence of judiciary is strengthened. The amendment promotes transparency and accountability and is a part of needed reform without affecting the basic structure of the Constitution. To determine the question one has to look at the concept of basic feature which controls the amending power of the Parliament. This understanding will lead to the decision whether primacy of judiciary and absence of Executive interference in appointment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that having regard to importance of freedom of the individual and the importance of economic, social and political justice, mentioned in the preamble the word "amendment" could not be read in its widest sense. The Fundamental Rights could not be amended out of existence. Fundamental features of secularism, democracy and freedom of individual should always subsist. The expression "amendment" had a limited meaning. Otherwise a political party with two-third majority could so amend the Constitution as to debar any other party from functioning, establish totalitarianism and enslave the people and thereafter make the Constitution unamendable. Thus, the appeal to democratic principles to justify absolute amending power, if accepted, could damage the very democratic principles. Thus, the amendment meant addition or change within the broad contours of the preamble of the Constitution. The Parliament could adjust the Fundamental Rights to secure the objectives of the Directive Principles while maintaining freedom and dignity of every citizen. The dignity and freedom of the individual was held to be of supreme importance. The basic features were held to be discernible not only from the pream ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e old Constitution could not be done away with. Basic structure of framework must be retained. It was not permissible to touch the foundation or to alter the basic institutional pattern. What can be amended is the existing Constitution and what must emerge as a result of amendment is not a new and different Constitution but the existing Constitution. What was contemplated by amendment was varying of the Constitution here and there and not elimination of its basic structure resulting in losing its identity. 15.3. One of the questions considered was validity of Section 3 of the Twenty-Fifth Amendment Act, 1971 adding Article 31-C as follows: 416. Section 3 of the twenty-fifth amendment, reads thus: 3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of PM and Speaker of the Lok Sabha in Indira Nehru Gandhi v. Raj Narain (1975) Supp. SCC 1. Chandrachud, J. (later the Chief Justice) observed that it is not that only certain named features of the Constitution are part of its basic structure. The features named by individual judges in Kesavananda Bharti case were merely illustrations and were not intended to be exhaustive. Having regard to its place in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution, a feature of the Constitution could be held to be a basic feature [Para 663-For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. But it is needless for the purpose of these appeals to ransack every nook and cranny of the Constitution to discover the bricks of the basic structure. Those that are enumerated in the majority judgments are mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said law was not for giving effect to the said Part IV. By Section 55, it was provided that no amendment of the Constitution could be challenged on any ground and that there will be no limitation on the constituent power of Parliament to amend the Constitution. This Court observed that the Constitution had conferred limited amending power on the Parliament which itself was a basic feature of the Constitution. The Parliament could not expand its amending power so as to destroy the said basic feature of the Constitution. The limited power could not be converted into unlimited one. Clauses 4 and 5 of Article 368 added by Forty-Second Amendment were struck down as violative of basic structure of the Constitution. It was observed that the balance between Part III and Part IV of the Constitution was basic feature of the Constitution [Para 56]. Limited amending power of Parliament was also part of basic structure. [Paras 17 and 88] It was also held that judicial review to determine whether a law was to give effect to Part IV could not be excluded as judicial review was part of the basic structure. [Paras 12, 88] It was also observed that though there is no rigid separation of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allied amendments to the Constitution were called in question on the ground of violation of right of equality as a basic feature of the Constitution. While considering the challenge, it was observed that the Constitution sets out principles for an expanding future. This called for a purposive approach to the interpretation. It was observed that a constitutional provision must not be construed in a narrow sense but in a wide and liberal sense so as to take into account changing conditions and emerging problems and challenges. The content of the rights is to be defined by the Courts. Some of the concepts like federalism, secularism, reasonableness and socialism reasonableness are beyond the words of a particular provision. They give coherence to the Constitution and make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. To qualify as essential feature, a principle has to be established as part of constitutional law and as such binding on the legislature. Only then, it could be examined whether it was a part of basic feature. Theory of basic feature was based on concept of constitutional identity. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges can be delinked from the concept of independence of judiciary or is integral part of it. Can the independence of judiciary be maintained even if the appointment of Judges is controlled directly or indirectly by the executive? 16.3 To what extent primacy of judiciary in appointment of judges is part of unamendable basic feature of the Constitution. Since the issue has been gone into in earlier binding precedents, reference to such decisions is apt. As already mentioned, it remains undisputed that power of judicial review, independence of judiciary, broad separation of powers in three departments of the State, federalism and democracy are the basic features of the Constitution. Stand of the Respondents is that power of appointment of judges does not have impact on such basic features as independence of judges is envisaged post appointment. By an amendment, process of appointment of judges can be altered to reduce the role of judiciary and to increase the role of Executive and Legislature. Alternatively, it is submitted that no substantial change has taken place in the said roles. 16.4 In Second Judge's case, a Bench of 9-Judges of this Court examined the question of interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of appointment. The phrase "consultation" had to be understood consistent with and to promote the constitutional spirit. The constitutional values could not be whittled down by calling the appointment of judges as an executive act. The appointment was rather the result of collective constitutional process. It could not be said that power to appoint solely vested with the executive or that the executive was free to take such decision as it deems ft after consultation with the judiciary. The word "consultation" was used in recognition of the status of high constitutional dignitary and could not be interpreted literally. Moreover, the appointment not recommended by Chief Justice of the State and the CJI would be inappropriate and arbitrary exercise of power. The CJI should have preponderant role. Primacy of CJI will improve the quality of selection. The view of the Chief Justices of States and CJI should be decisive unless the executive had material indicating that the appointee will be undesirable. The view of the majority in First Judges' case did not recognise the said pivotal position of the institution of the CJI and correctness of the said opinion required recon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the primal and binding opinion of CJI in the matter of appointment of judges. All appointments since the commencement of the Constitution were made with the concurrence of the CJI. The 14th Report of the Law Commission and discussion in the Parliament on 23rd and 24th November, 1959 were referred to Para 357. With regard to the statement of Dr. Ambedkar on 24th May, 1949 before the Constituent Assembly that the CJI could not be given a veto on appointment of judges, it was observed that primacy of the CJI acting in representative as against individual capacity would not be against the objective of the said statement Para 392. 16.8 Verma, J. observed that the scheme of the Constitution of separation of powers, with the Directive Principles of separation of judiciary from Executive, and role of the judiciary to secure rule of law required that appointment of judges in superior judiciary could not be left to the discretion of the Executive. Independence of judges was required even at the time of their appointment instead of confining it to the provisions for security of tenure and conditions of service. It was necessary to prevent influence of political consideration on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be struck down unless it could be held that the amended provisions also retained the said primacy. If primacy of judiciary is held not to be a part of basic structure of the Constitution or it is held that the same is still retained, the amendment will have to be upheld. C. Plea of the Respondents for re-visiting earlier binding precedents 17. The correctness of the view taken in the above decisions was sought to be challenged by learned Counsel for the Respondents. The ground on which reconsideration of the earlier view is sought is that the interpretation in Second and Third Judges cases is patently erroneous. Members of the Constituent Assembly never intended that the CJI should have last word on the subject of appointment of Judges. The text which was finally approved and which became part of the Constitution did not provide for concurrence of the CJI as has been laid down by this Court. It is also submitted that the interpretation taken by this Court may have been justified on account of the abuse of powers by the Executive specially during emergency (as noticed in Union of India v. Sankalchand Himatlal Sheth 1977 (4) SCC 193 (referred to in Paras 125 to 130 Second Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was submitted that all issues sought to be raised by the Respondents were duly considered by the Bench of nine-judges. The Central Government sought opinion of this Court Under Article 143. A statement was made by the then learned Attorney General that the Second Judges' case was not sought to be reconsidered. The view of the nine-Judge Bench was based on earlier binding decisions in Shamsher Singh v. State of Punjab 1974 (2) SCC 831 and Sankalchand case (supra) laying down that the last word on such matters was of the CJI. The expert studies and the Constituent Assembly Debates ruled out pre-dominant role for the Executive or Legislature in appointment of judges. The constitutional scheme did not permit interference of the Executive in appointment of judges. The Executive could give feed back and carry out the Executive functions by making appointments but the proposal had to be initiated and finalised by the judiciary. Frequent reconsideration of opinions by larger Benches of this Court was not desirable in absence of any doubt about the correctness of the earlier view. 17.3 Parameters for determining as to when earlier binding decisions ought to be reopened have been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same pattern. Initially proposal to set up Judicial Commission was made prior to Second Judges case, with the object of doing away with the primacy of the Executive as laid down in First Judges case. In Sixty-Seventh Amendment Bill, in the Statement of Objects and Reasons, it is mentioned that the object of setting up of Commission was to 'obviate the criticism of arbitrariness on the part of the Executive'[The Bill was introduced in the light of 121st Report of the Law Commission]. Ninety-Eighth Amendment Bill, 2003 was introduced with a different composition on recommendation of National Commission to review the working of the Constitution. One-Twentieth Amendment Bill, 2013 did not provide for any composition and left the composition to be provided for by the Parliament. Validity of such proposed Commissions was never tested as such Commissions never came into existence. 17.5 The Judicial Commissions in other countries and provisions of Constitutions of other countries conferring power on the Executive to appoint Judges may also not call for reconsideration of the Second Judges' case as many of such and similar provisions were duly considered in the Second Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of far reaching nature. It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the Executive, it will certainly affect impartiality of judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded. 18.1 Submissions of learned Attorney General are that even if appointment of judges is held to be part of independence of judiciary, choice of a particular model is not part of basic structure. The role of the Executive cannot be denied altogether nor there can be any objection to members of civil society being included in the process of appointment. The primacy of judiciary in appointment of judges is not an absolutist ideal. Power of appointment has to be seen in the light of need for checks and balances. Independence of judiciary is not a uni-dimensional test. There could be inter mingling of other wings in the process of appointment of judges. After repeal of Articles 124 and 217, basis of Second Judges' case did not survive. Primacy of judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normally to be accepted thereby according primacy to the judiciary; The Executive being major litigant and role of judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges; Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges; Since traits of candidates could be better assessed by the Chief Justice, the view of the Chief Justice as to suitability and merit of the candidate had higher weight; The Chief Justice of India was not to make a recommendation individually but as representing the judiciary in the manner laid down, that is, after consulting the collegium; and Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution. 18.4 Referring to the constitutional scheme, its background and interpretation, irrespective of the literal meaning of the language employed in Articles 214 and 217 of the Constitution, it was observed that initiation of proposal must always emanate from the Chief Justice of the High Court/CJI (in representative capacity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merit but on considerations of community, caste, political affiliations. The Chief Minister holding a political office is dependent on the goodwill of his party followers. The recommendation of the CJI is more likely to be on merit. An opinion noted in the report mentions that if the Executive continued to have powerful role, the independence of judiciary will disappear and the Courts will be filled with Judges who owe from appointments to politicians [Para 14]. It was recommended that the hands of CJI should be strengthened and instead of requiring consultation it should require recommendation by the CJI [Para 19]. There should be requirement of concurrence of the CJI [Para 20]. The Report was discussed in the Parliament and the then Home Minister declared that the Executive was only an order issuing authority and appointments were virtually being made by the CJI. This statement was reiterated by the then Law Minister [Paras 362-371 (Second Judges' case)]. Again in 121st Report, it was observed that appointment of Judges with Executive influence was not conducive to healthy growth of judicial review. Trends all over the world indicate that power of the Executive in appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other high constitutional appointments [Para 195 Pandian, J and Para 450, Verma, J.;]. (v) The appointment of judges was inextricably linked with the independence of judiciary and even in the matter of appointment of district judges, the conclusive say was of the High Courts and not of the Government[Paras 447 to 463, Verma, J.; Paras 195 to 197, Pandian, J.; Paras 335 and 380, Kuldip Singh, J. (Para 215, Pandian, J.-Appointments and control of district judges is with the High Courts)]. (vi) Even in countries where power of appointment of judges was with the Executive, there is demand/proposal for minimizing the role of the Executive [Para 25(6), Pandian, J.]. (vii) The effort of the Executive to have say in appointment of judges was found by expert studies to be not congenial to the independence of judiciary[14th Report of the Law Commission is referred to in paras 64 and 65 by Pandian, J.; 121st Report of Law Commission is referred to in Paras 184 to 191 and 204, Pandian, J.]. Reference was made to the 14th Report of the Law Commission that if the Executive had powerful voice in appointment of judges, the independence of judiciary will disappear and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution in the context of Executive power of the President to act on "aid and advice" of Council of Ministers was held to mean that the President was only a formal head. [Paras 48 and 57, Shamsher Singh case] It cannot be suggested that by amendment of the expression used, constitutional scheme of the President being formal head can be changed as such amendment will be repugnant to the basic structure of the Constitution. Likewise, even by amendment primacy of judiciary in appointment of judges cannot be excluded. Such primacy existed not merely by word 'consultation' but by virtue of role of judiciary in working of the Constitution, by CJI being better suited to assess merit of the candidate and on account of Executive being major litigant. There is no change in these factors even after amendment. It is not thus a question of change of model or of available choice with the Parliament. Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. Similarly, the plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of Parliament to am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and primacy of judiciary in appointment of judges is required to be retained. The power of appointment of judges cannot be exercised by the Executive as the same will affect independence of judiciary. Even after the original provisions are amended, this principle is still applicable. 18.10 At this stage, it may be mentioned that any perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature. As Dr. Ambedkar observed [In speech dated 25.11.1949 on conclusion of proceedings of the Constituent Assembly (Page 975 of the CAD).] *In his speech as President of the Constituent Assembly quoted in Para 429 of the Second Judges' case)]: The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. To the same effect Dr. Rajendra Prasad said: If the people who are elected are capable and men o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Constitution was supreme and even Parliament has no unlimited amending power. Learned Attorney General rightly submitted that the last word on the validity of a constitutional amendment is of this Court. Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary [Paras 328 and 334, Kuldip Singh, J. (Second Judges' case)]. Conclusion: 18.12 Accordingly, I hold that primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter. The Executive is at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in Second and Third Judges' cases. E. Whether the Impugned Amendment alters or damages the basic structure 19. In the above background, the only question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strengthens the independence of judiciary while upholding the democracy, rule of law and checks and balances. NJAC is in sync with the needs of time and is modelled on checks and balances to ensure a democratic process with plurality of views. NJAC dilutes power of executive in favour of the judiciary. He submitted that identity test was required to be applied which means that after the amendment the amended Constitution loses the identity of the original Constitution. There is no bar to making changes and to adopt the Constitution to the requirements of changing times without touching the foundation or altering the basic constitutional pattern. He further relied upon the observations in the Indira Gandhi and Minerva Mills Ltd. cases (supra). 19.3. The learned Attorney General further submitted that the object of the amendment is to broad base the collegiate body so as to provide for participatory and collective role to the judiciary, the executive and the civil society. The executive has only one member, the Law Minister. The object of having the Law Minister is to provide information about the candidates which information the other members may not have. The eminent persons will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the observations by Khanna, J. in Kesavananda Bharati v. State of Kerala (SCR at p. 755: SCC p. 669). The learned Judge said: (SCC p. 821, para 1535) In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. To the same effect are the observations in T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of T.N. (1980) 3 SCC 97] (SCR at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty 1962 (3) SCR 786], this Court observed: "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India (1977) 3 SCC 592] (SCR at p. 77), "it must be remembered that merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of the judges of the High Courts. Mere fact that without the judges, the Minister and the nominated members cannot make an appointment is not at par with the situation where a decision itself is taken by the CJI representing the judiciary. The Constitutional power of the Chief Justice of the High Court to initiate proposal for appointment as judge of the High Court has been done away with, at least as far as the Constitutional provisions are concerned. 19.5. The contention that the amendment strengthens the independence of judiciary or the democracy or brings about transparency or accountability is not shown to be based on any logic beyond the words. Even if in appointing two eminent members CJI is also a member of the Committee, the fact remains that the PM and the Leader of the Opposition have significant role in appointing such members, who will have power not only equal to the CJI and two senior most judges of the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts but also right to reject the unanimous proposal of the CJI and the two senior most judges. Such composition of the Commission cannot be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpartial and free from any political or other considerations. Persons making selection are required to be best placed to assess their merit and suitability. Pre-dominant and decisive role of the judiciary is a requirement not only of independence of judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the Democracy. The citizens having a grievance of violation of their fundamental and legal rights against the Executive or the Legislature expect that their grievance is considered by persons whose appointments are not influenced by the Executive or the Legislature. If an appointment is perceived as being influenced by political consideration or any other extraneous influence, faith in impartiality, which is hall mark of independence of judiciary, will be eroded. The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution. 19.7. In this regard, it may be recalled that the word amendment literally means betterment or improvement and sponsor of amendment may always claim improvement. Such claim has to be tested by applying the 'identity test' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 1-Para 108]. Same view was taken in the context of setting up of National Tax Tribunals to substitute the jurisdiction of the High Courts in tax matters [Madras Bar Asson. v. UOI: (2014) 10 SCC 1-Pars 136 and 137]. The new scheme may iron out the creases but the mechanism should be comparable to the substituted scheme. 19.9. As already mentioned under the unamended scheme, as authoritatively interpreted by this Court, power of initiating a proposal was always with the judiciary. At the time of making of the Constitution, the draft of the Constitution was circulated to the Federal Court and High Courts to elicit views of the judges. In the memorandum representing the views of the judges, it was mentioned that the existing convention was that appointment of judges was made after referring the matter to the Chief Justice and obtaining his concurrence [Second Judges' case-Paras 360 and 361]. 19.10. In CAD, various models were considered but the system applicable in other countries providing for final say of the Executive or concurrence of Legislature (as in UK and USA) were found to be unsuitable. It was stated by Dr. Ambedkar that the power could not be left to be exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e criticism. Eminent constitutional expert Seervai commented that the Executive was not qualified to assess the merits or demerits of a candidate. Initiation of a proposal by the Executive was against the intention of the framers of the Constitution. Political, Executive or Legislative pressure should not enter into the appointment of a judge[Seervai, 4th Edition, Constitutional Law of India-Paras 25.350, 25.353 and 25.354]. The Law Commission headed by Justice D.A. Desai in its 121st Report also criticised the system where the Executive had overriding powers in the matter of appointment of judges. He stated that power to appoint and transfer judges of superior courts by the Executive affects independence of judiciary and is not conducive to its healthy growth. He recommended a Judicial Commission to check the arbitrariness on the part of the Executive in such appointments and transfers [Para 7.5 and 7.8-121st Report of the Law Commission]. 19.12. The interpretation in the Second Judge's case was in the above historical background. In the context of working of the Indian Constitution, the dominant role of the Executive in appointment of judges adversely affected the independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the primacy of judiciary was evolved by erroneous interpretation which is sought to be corrected. It is stated that the primacy of judiciary was undemocratic and denied the Executive a meaningful role. These reasons are untenable for reasons already discussed. As regards the plea of transparency and accountability, the same has to be achieved without compromising independence of judiciary. If on the perceived plea of transparency and accountability, the independence of judiciary is sought to be adversely affected by the Amendment, this will cause severe damage to the functioning of the Constitution. The primacy of judiciary, as already noticed, is integral to the independence of judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The amendment does away with the primacy of even unanimous opinion of the judicial members as such opinion is not enough to finalise an appointment. While Shri Venugopal has rightly stated in his alternative submission that primacy of judiciary is part of judicial independence and if Executive has pre-dominant voice, it could subvert independence of judiciary, his submission that the situation could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions, the Parliament could not act beyond the authority conferred on it by the Constitution. Thus, taking away primacy of judiciary or conferring such primacy on a body which is not at par with the said concept is certainly not a choice available with the Parliament. As already mentioned, the concept of primacy of judiciary comprises of initiating the proposal and taking a final decision in case any adverse feed back is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected. The impact thereof being that the appointment of judges could be made under the influence of the Executive represented by the Law Minister or the non-judge members in whose appointment the pre-dominant voice is not of the judiciary. The impact of such appointments will be that the judges appointed will owe their appointments to the Executive which may be destructive of the public confidence and impartiality of judiciary and adversely affect the role of the judiciary as an important impartial constitutional organ. As already noted, the role of the judiciary is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (United States) follows a process of nomination by the President (executive) and confirmation by the Senate (legislature). b. In all 15 countries, the executive is the final or determinative appointing authority. Out of the 9 countries with commissions, in 2 countries (South Africa and Sri Lanka) the executive has absolute majority in comparison with members of other groups (judiciary, legislature and independent persons). In 4 countries (France, Israel, Kenya and UK) there is a balanced representation of various stakeholders, including the executive. Out of 3 countries where the number of judges are in a majority (Italy, Nigeria and Pakistan), in 2 countries (Nigeria and Pakistan) the decision of the commission is subject to the vote of a parliamentary committee/Senate, while in 1 (Italy), the President of the Republic is the final appointing authority and the chairman of the judicial appointment body. In 5 of the countries without commissions (Canada, Australia, New Zealand, Bangladesh and United States of America), the decision is taken by the Executive without any formal process of consultation with the judiciary, while in 1 (Germany), the appointment process is cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like the Rule of law and the Democracy, by upholding protection of fundamental rights even against the State. He particularly made reference to the history of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to provide in Article 368 that an Amendment compromising the independence of judiciary could be made by approval by majority at a referendum. The same was brought about by the Janta Government led by leaders who were arrested during emergency. It was not approved for want of majority in Rajya Sabha. He also referred to decisions of this Court Lily Thomas v. Union of India 2013 (7) SCC 653 and Chief Election Commissioner v. Jan Chaukidar 2013 (7) SCC 507 holding that a member of a Legislature will stand qualified on conviction and that a person confined in jail could not contest an election and efforts to undo such decisions. He also referred to the treatise, Constitutional Law of India by Seervai, 4th Edition, to the effect that the decision of First Judges' case put the judicial independence at the mercy of the Executive [Paras 25.350 to 25.354]. 20.5 He also gave a personal note, in response to reliance on behalf of the Respondents on his own biography "Before Memory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Justice Venkatchaliah Commission that gave dominance to the judiciary in the appointment process. He stated that composition of the Commission is the basic issue, and a Commission with non-Judge domination would not be viable in India. 21. As already mentioned, the Constitution of India has its own background and personality [R.C. Poudyal v. UOI (1994) Supp. 1 SCC 324, para 53]. Models of other countries could not be blindly followed so as to damage the identity and personality of the Indian Constitution. The Judicial Commissions referred to by learned Attorney General do not show the trend of reducing the pre-existing role of judiciary. In fact, the trend is for reducing the pre-existing role of the Executive. In the impugned amendment it is the reverse. Thus, the contention of working of other Constitutions or setting up of judicial Commissions with varying compositions in other countries does not justify the impugned amendment which is contrary to the basic structure of the Indian Constitution. 22. There is also no merit in the contention that in the present case mere alteration in a constitutional provision does not amount to damage of a basic feature. It is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, there is transparency as well as checks and balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution. 22.3. Learned Attorney General sought to compare the existing provision for veto by two members of collegium in appointment of Supreme Court Judges as per Third Judges' case to justify veto Under Section 6(6). As already mentioned, the role of the Law Minister and the non-judge members cannot be placed at par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with a non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary. Similarly, requirement of special majority in any other ordinary situation was not comparable with the scheme of appointment of judges which is sui generis. Similarly, the plea of giving vital inputs does not justify participation of the non-judge members with the Chief Justice and the Judges in discharging their func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Act has to be struck down. It goes far beyond the procedural aspects. In Section 5(2) 'suitability criteria' is left to be worked out by Regulations. Second proviso to Section 5(2) and Section 6(6) give veto to two members of the Commission which is not contemplated by the Amendment. Section 5(3) and Section 6(8) provide for conditions for selection to be laid down by Regulations which are not mere procedural matters. Section 6 authorises the recommendations for appointment as judges of the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6(1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges. This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only one High Court may be senior most. Section 6(2) provides for seeking nomination from Chief Justices of High Courts, but Section 6(3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court and seek comments from Chief Justice after short listing the candidates by itself. Section 8 enables ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in Clause (4). xxx 217. Appointment and conditions of the office of a Judge of a High Court-Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission. 124B. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by Regulations the procedure for the discharge of its fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows: 1. (1) This Act may be called the National Judicial Appointments Commission Act, 2014. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2. In this Act, unless the context otherwise requires,-- (a) "Chairperson" means the Chairperson of the Commission; (b) "Commission" means the National Judicial Appointments Commission referred to in Article 124A of the Constitution; (c) "High Court" means the High Court in respect of which recommendation for appointment of a Judge is proposed to be made by the Commission; (d) "Member" means a Member of the Commission and includes its Chairperson; (e) "prescribed" means prescribed by the rules made under this Act; (f) "Regulations" means the Regulations made by the Commission under this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court. (3) The Commission shall also on the basis of ability, merit and any other criteria of suitability as may be specified by Regulations, nominate name for appointment as a Judge of a High Court from amongst persons who are eligible to be appointed as such Under Clause (2) of Article 217 of the Constitution and forward such names to the Chief Justice of the concerned High Court for its views. (4) Before making any nomination Under Sub-section (2) or giving its views Under Sub-section (3), the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court as may be specified by Regulations. (5) After receiving views and nomination Under Sub-sections (2) and (3), the Commission may recommend for appointment the person who is found suitable on the basis of ability, merit and any other criteria of suitability as may be specified by Regulations. (6) The Commission shall not recommend a person for appointment under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the fees and allowances payable to the eminent persons nominated Under Sub-clause (d) of clause (1) of Article 124A of the Constitution; (b) the terms and other conditions of service of officers and other employees of the Commission Under Sub-section (2) of Section 8; (c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules. 12. (1) The Commission may, by notification in the Official Gazette, make Regulations consistent with this Act, and the rules made thereunder, to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following matters, namely: (a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court Under Sub-section (2) of Section 5; (b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court Under Sub-section (3) of Section 5; (c) the criteria of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under this section shall, as soon as may be after it is made, be laid before each House of Parliament. (III) The Statement of Objects and Reasons of the Amendment Act Statement of Objects and Reasons The Judges of the Supreme Court are appointed Under Clause (2) of Article 124 and the Judges of the High Courts are appointed Under Clause (1) of Article 217 of the Constitution, by the President. The Ad-hoc Judges and retired Judges for the Supreme Court are appointed Under Clause (1) of Article 127 and Article 128 of the Constitution respectively. The appointment of Additional Judges and Acting Judges for the High Court is made Under Article 224 and the appointment of retired Judges for sittings of the High Courts is made Under Article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India Under Clause (1) of Article 222 of the Constitution. 2. The Supreme Court in the matter of Supreme Court Advocates-on-Record Association v. Union of India in the year 1993, and in its Advisory Opinion in the year 1998 in the Third Judges case, had interpreted C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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