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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 ..... etitioner : Mr. Fali S. Nariman, Sr. Adv., Mr. Subhash C. Kasyap, Adv., Mr. Pranav Vyas, Adv., for Mr. Surya Kant, Adv, Bhim Singh, Sr. Adv., Mr. Santosh Paul, Adv., Mr. Joseph Aristotle S.,Adv., Mr. Arvind Gupta, Adv., Mr. M.B. Elakkumanan, Adv., Mr. Malay Swapnil, Adv., Ms. Priya Aristotle, Adv., Ms. Savita Singh, Adv., Mr. Prashant Bhushan,Adv., Mr. Anil. B. Divan, Sr. Adv., Mr. R.K.P. Shankar Das, Sr. Adv., Mr. K.N. Bhat, Sr. Adv., Mr. Prashant Kumar, Adv., Mr. Syed Rehan, Adv., Mr. Ranvir Singh, Adv., Ms. Anindita Pujari, AOR, Mr. Jitendra Mahapatra, Adv., Mr. Mathews J. Nedumpara, Mr. A.C.Philip, Adv., Mr. Rabin Majumder, AOR, Mr. Manohar Lal Sharma, in person, 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 Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Adv., Mr. Jayant Patel, Adv., Dr. Rajeev Dhawan, Sr. Adv., Mr. Krishna Sarma, Adv., Mr. Avijit Roy, Adv., Mr. Navnit Kumar, Adv., Ms. Barnali Das, Adv., Ms. Deepika, Adv., for M/s Corporate Law Group, Mr. Guntur Prabhakar, Adv., Ms. Prerna Singh, Adv., Mr. Anil Grover, AAG, Mr. Ajay Bansal, AAG, Mr. Gaurav Yadava, Adv., Ms. Nupur Singhal, Adv., Mr. Sanjay Visen, Adv., Mr. Anil Kumar Chopra, Adv., Mr. Ashok Kumar Thakur, Adv., Mr. Imran Khan Burni, Adv. JUDGMENT J.S. Khehar, J. Sl. No Contents Paragraphs Pages 1. The Recusal Order 1 - 18 1 - 15 2. The Reference Order 1 - 101 16 - 169 I The Challenge 1 - 9 16 - 19 II. The Background 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, the entire matter can be considered to have been fully expressed, as it ought to be. I also need to record reasons, why my continuation on the reconstituted Bench, was the only course open to me. And therefore, my side of its understanding, dealing with the perception, of the other side of the Bench. 3(i) A three-Judge Bench was originally constituted for hearing these matters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ.. At that juncture, Anil R. Dave, J. was a part of the 1+2 collegium, as also, the 1+4 collegium. The above combination heard the matter, on its first listing on 11.3.2015. Notice returnable for 17.3.2015 was issued on the first date of hearing. Simultaneously, hearing in Y. Krishnan v. Union of India and Ors. Writ Petition (MD) No. 69 of 2015, pending before the High Court of Madras (at its Madurai Bench), wherein the same issues were being considered as the ones raised in the bunch of cases in hand, was stayed till further orders. (ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, Senior Advocate, in Supreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No. 13 of 2015), Mr. Anil B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een challenged. The challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of the Constitution of India has been altered and therefore, they should be set aside. 2. We have heard the learned Counsel appearing for the parties and the parties appearing in-person at length. 3. It has been mainly submitted for the Petitioners that all these petitions should be referred to a Bench of Five Judges as per the provisions of Article 145(3) of the Constitution of India for the reason that substantial questions of law with regard to interpretation of the Constitution of India are involved in these petitions. It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act should not be brought into force and the present system with regard to appointment of Judges should be continued. 4. Sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into force, cause of action can not be said to have arisen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-person in Writ Petition (C) No. 124 of 2015), the latter advanced submissions, even though he had been barred from doing so, by an earlier order dated 24.3.2015 (extracted above). For me, to preside over the Bench seemed to be imprudent, when some of the stakeholders desired otherwise. Strong views were however expressed by quite a few learned Counsel, who opposed the prayer. It was submitted, that a prayer for recusal had earlier been made, with reference to Anil R. Dave, J. It was pointed out, that the above prayer had resulted in his having exercised the option to step aside (-on 15.4.2015). Some learned Counsel went to the extent of asserting, that the recusal of Anil R. Dave, J. was not only unfair, but was also motivated. It was also suggested, that the Bench should be reconstituted, by requesting Anil R. Dave, J. to preside over the Bench. The above sequence of facts reveals, that the recusal by Anil R. Dave, J. was not at his own, but in deference to a similar prayer made to him. Logically, if he had heard these cases when he was the presiding Judge of the three-Judge Bench, he would have heard it, when the Bench strength was increased, wherein, he was still the presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine of necessity leaves no other option then the Supreme Court itself deciding the question. But in that case, it could be by Judges who are not part of the collegium as of today or, if an NJAC is to be constituted today, could be a member thereof. With utmost respect, Hon'ble Shri Justice Dave is a member of the collegium; His Lordship will be a member of the NJAC if it is constituted today. Therefore, there is a manifest conflict of interest. VII. Referendum. In Australia, a Constitutional Amendment was brought in, limiting the retirement age of Judges to 70 years. Instead of the Judges deciding the correctness of the said decision, the validity of the amendment was left to be decided by a referendum, and 80% of the population supported the amendment. Therefore, the only body who could decide whether the NJAC as envisaged is acceptable or not is the people of this country upon a referendum. VIII. The judgment in Judges-2, which made the rewriting of the Constitution, is void ab initio. The said case was decided without notice to the public at large. Only the views of the government and Advocates on record and a few others were heard. In the instant case, the publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious than him, but the fact that since he satisfies all the basic eligibility criteria prescribed Under Articles 124A, as amended, and 217, he is entitled to seek a declaration at the hands of this Hon'ble Court that an open selection be made by advertisement of vacancies or such other appropriate mechanism. X. Judicial review V. democracy. Judicial review is only to prevent unjust laws to be enacted and the rights of the minorities, whatever colour they could be in terms of religion, race, views they hold, by a legislation which enjoys brutal majority and an of the executive which is tyrannical. It is no way intended to substitute the voice of the people by the voice of the high judiciary. XI. Article 124A, as amended, is deficient only in one respect. The collegium contemplated thereunder is still fully loaded in favour of the high judiciary. Three out of the six members are Judges. In that sense it is failing to meet to be just and democratic. But the Parliament has in its wisdom enacted so and if there is a complaint, the forum is to generate public opinion and seek greater democracy. The Petitioner is currently not interested in that; he is happy with the Acts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 4 SCC 441, (reaffirmed by unanimously by a Bench of 9 Judges in the Third Judges case Special Reference No. 1 of 1998 Re. (1998 7 SCC 739), is at present a member of the Collegium of five Hon'ble Judges which recommends judicial appointments to the Higher Judiciary, which will now come under the ambit of the National Judicial Appointments Commission set up under the aegis of the Constitution (Ninety-ninth Amendment) Act, 2014 read with National Judicial Appointments Commission Act No. 40 of 2014-if valid; but the constitutional validity of these enactments has been directly challenged in these proceedings. The position of the Presiding Judge on this Bench hearing these cases of constitutional challenge is not consistent with (and apparently conflicts with) his position as a member of the 'collegium'; and is likely to be seen as such; always bearing in mind that if the Constitution Amendment and the statute pertaining thereto are held constitutionally valid and are upheld, the present presiding Judge would no longer be part of the Collegium-the Collegium it must be acknowledged exercises significant constitutional power. 9. In other words would it be inappropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Court hearing the Writ Petitions challenging the aforesaid Acts is nothing but a fox being on the jury at a goose's trial. The Petitioner believes that the Noble heart of his Lordships Justice Khehar could unwittingly be influenced by the nonconscious, subconscious, unconscious bias, his Lordships having been placed himself in a position of conflict of interest. 3. This Hon'ble Court itself hearing the case involving the power of appointment of Judges between the collegium and the Government, nay, the executive, will not evince any public confidence, except the designated senior lawyers who seem to be supporting the collegium system. The collegium system does not have any confidence in the ordinary lawyers who are often unfairly treated nor the ordinary litigants, the Daridra Narayanas, to borrow an expression from legendary Justice Krishna Iyer, who considered that the higher judiciary, and the Supreme Court in particular, is beyond the reach of the ordinary man. An ordinary lawyer finds it difficult to get even an entry into the Supreme Court premises. This is the stark reality, though many prefer to pretend not to notice it. Therefore, the Petitioner with utmost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar to recuse himself from hearing the matter. Reasons will follow. 16. After the order was pronounced, I disclosed to my colleagues on the Bench, that I was still undecided whether I should remain on the Bench, for I was toying with the idea of recusal, because a prayer to that effect, had been made in the face of the Court. My colleagues on the Bench, would have nothing of it. They were unequivocal in their protestation. 17. Despite the factual position noticed above, I wish to record, that it is not their persuasion or exhortation, which made me take a final call on the matter. The decision to remain a member of the reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but that of the head. The choice was made by posing two questions to myself. Firstly, whether a Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted? Secondly, whether I would stand true to the oath of my office, if I recused from hearing the matters? 18. The reason that was pointed out against me, for seeking my recusal was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which I took, at the time of my elevation to this Court. THE REFERENCE ORDER I. THE CHALLENGE: 1. The question which has arisen for consideration, in the present set of cases, pertains to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 (hereinafter referred to as, the Constitution (99th Amendment) Act), as also, that of the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act). 2. During the course of hearing on the merits of the controversy, which pertains to the selection and appointment of Judges to the higher judiciary (i.e., Chief Justices and Judges of the High Courts and the Supreme Court), and the transfer of Chief Justices and Judges of one High Court to another, it emerged that learned Counsel for the Respondents, were inter alia relying on the judgment rendered in S.P. Gupta v. Union of India 1981 (Supp) SCC 87, (hereinafter referred to as, the First Judges case); whereas, the learned Counsel for the Petitioners were inter alia relying on the judgment in Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 (hereinafter referred to as, the Second Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prayer seeking a review of the two judgments was not justified, that would render a quietus to the matter. However, even if the proposition canvassed at the behest of the Respondents is not accepted, we would still examine the submissions canvassed at their behest, as in a matter of such extreme importance and sensitivity, it may not be proper to reject a prayer for review, on a mere technicality. We shall then endeavour to determine, whether the submissions canvassed at the hands of the Respondents, demonstrate clear and compelling reasons, for a review of the conclusions recorded in the Second and Third Judges cases. We shall also venture to examine, whether the Respondents have been able to prima facie show, that the earlier judgments could be seen as manifestly incorrect. For such preliminary adjudication, we are satisfied, that the present bench-strength satisfies the postulated requirement, expressed in the proviso Under Article 145(3). 7. Consequent upon the above examination, if the judgments rendered in the Second and Third Judges cases, are shown to prima facie require a re-look, we would then delve on the merits of the main controversy, without permitting the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office; (b) a Judge may be removed from his office in the manner provided in Clause (4). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-- (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. Explanation I.--In this clause High Court means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India. Explanation II.--In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included. (4) A Judge of the Supreme Court shall not be removed from his office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause- (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate; (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be. (3) If any question ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurrence (in matters governed by Articles 124, 217 and 222). The Union of India, then framed a Memorandum of Procedure on 30.6.1999, for the appointment of Judges and Chief Justices to the High Courts and the Supreme Court, in consonance with the above two judgments. And appointments came to be made thereafter, in consonance with the Memorandum of Procedure. 13. As per the position expressed before us, a feeling came to be entertained, that a Commission for selection and appointment, as also for transfer, of Judges of the higher judiciary should be constituted, which would replace the prevailing procedure, for appointment of Judges and Chief Justices of the High Courts and the Supreme Court of India, contemplated Under Articles 124(2) and 217(1). It was felt, that the proposed Commission should be broad based. In that, the Commission should comprise of members of the judiciary, the executive and eminent/important persons from public life. In the above manner, it was proposed to introduce transparency in the selection process. 14. To achieve the purported objective, Articles 124 and 217 were inter alia amended, and Articles 124A, 124B and 124C were inserted in the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Government, to accommodate them in accordance with their preferences. In response, quite a few additional Judges, gave their consent to be appointed outside their parent State. (i) Iqbal Chagla (and the other Petitioners) felt, that the letter dated 18.3.1981 was a direct attack on the independence of the judiciary , and an uninhibited assault on a vital/basic feature of the Constitution. A series of Advocates' Associations in Bombay passed resolutions, condemning the letter dated 18.3.1981, as being subversive of judicial independence . They demanded the withdrawal of the letter. Since that was not done, a writ petition was filed by the above Associations in the Bombay High Court, challenging the letter dated 18.3.1981. An interim order was passed by the High Court, restraining the Union Law Minister and the Government from implementing the letter dated 18.3.1981. A Letters Patent Appeal preferred against the above interim order, came to be dismissed by a Division Bench of the High Court. The above interim order, was assailed before this Court. While the matter was pending before this Court, the Union Law Minister and the Government of India, filed a transfer pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, that transfers could only be made with the consent of the concerned Judge, and only in public interest, and after full and effective consultation with the Chief Justice of India. (vi vii) A sixth writ petition was filed by A. Rajappa, principally challenging the order dated 19.1.1981, whereby some Chief Justices had been transferred. One additional submission was raised in this petition, namely, that the transfer of the Chief Justices had been made without the prior consultation of the Governors of the concerned States, and further, that the said transfers were not in public interest, and therefore, violated the procedural requirements contained in Article 217(1). The seventh writ petition was filed by P. Subramanian, on the same grounds, as the petition filed by A. Rajappa. (viii) An eighth writ petition was filed by D.N. Pandey and Thakur Ramapati Sinha, practicing Advocates, of the Patna High Court. In this petition, Justice K.B.N. Singh, the Chief Justice of the Patna High Court was impleaded as Respondent No. 3. On a prayer made by Respondent No. 3, he was transposed as Petitioner No. 3. As Petitioner No. 3, Justice K.B.N. Singh filed a detailed affidavit asserting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i). On the subject of appointment of High Court Judges, it was opined, that just like Supreme Court Judges, who are appointed Under Article 124 by the President (which in effect and substance meant the Central Government), likewise, the power of appointment of High Court Judges Under Article 217, was to be exercised by the Central Government. Such power, it was held, was exercisable only ...after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court... It was concluded, that it was clear on a plain reading of the above two Articles, that the Chief Justice of India, the Chief Justice of the High Court, and such other Judges of the High Court and of the Supreme Court (as the Central Government may deem necessary to consult), were constitutional functionaries, having a consultative role, and the power of appointments rested solely and exclusively in the decision of the Central Government. It was pointed out, that the above power was not an unfettered power, in the sense, that the Central Government could not act arbitrarily, without consulting the constitutional functionaries specified in the two Articles. The Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lted, it was felt, that it was for the Central Government to decide, whose opinion should be accepted. The contention raised on behalf of the Petitioners, that in the consultative process, primacy should be that of the Chief Justice of India, since he was the head of the Indian judiciary and pater familias of the judicial fraternity, was rejected for the reason, that each of the constitutional functionaries was entitled to equal weightage. With reference to appointment of Judges of the Supreme Court, it was held, that the Chief Justice of India was required to be consulted, but the Central Government was not bound to act in accordance with the opinion of the Chief Justice of India, even though, his opinion was entitled to great weight. It was therefore held, that the ultimate power of appointment, rested with the Central Government (paragraph 30). (iv). On the issue of appointment of Judges of the Supreme Court, it was concluded, that consultation with the Chief Justice of India was a mandatory requirement. But while making an appointment, consultation could extend to such other Judges of the Supreme Court, and of the High Courts, as the Central Government may deem necessary. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chief Justice of India would have to consider, whether it would be in public interest to allow the additional Judge to be appointed as a permanent Judge in another High Court (paragraph 54). (vii). After having determined the merits of the individual claim raised by S.N. Kumar, J., (who was discontinued by the Central Government, while he was holding the position of additional Judge), it was concluded, that it would be proper if the Union of India could find a way, to place the letter dated 7.5.1981 addressed by the Chief Justice of Delhi High Court to the Law Minister, before the Chief Justice of India, and elicit his opinion with reference to that letter. And thereupon consider, whether S.N. Kumar, J., should be reappointed as additional Judge. (viii). With reference to K.B.N. Singh, CJ., it was opined that there was a clear abdication by the Central Government of its constitutional functions, and therefore, his transfer from the Patna High Court to the Madras High Court was held as unconstitutional and void. A.C. Gupta, J. (i). On the subject of the independence of the judiciary , it was opined, that the same did not mean freedom of Judges to act arbitrarily. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that there were allegations against him, without properly ascertaining the truth of the allegations, was destructive of the independence of the judiciary (paragraph 123). (iv). With reference to the non-continuation of S.N. Kumar, J., an additional Judge of the Delhi High Court, it was observed, that the letter of the Chief Justice of the Delhi High Court dated 7.5.1981, addressed to the Law Minister, was not disclosed to the Chief Justice of India. As the relevant material was withheld from the Chief Justice of India, it was concluded, that there was no full and effective consultation , as contemplated by Article 217(1). And therefore, the decision not to extend the term of office of S.N. Kumar, J., as additional Judge of the Delhi High Court, though the volume of pending work in the High Court required the services of an additional Judge, was invalid. (v). On the question, whether the opinion of the Chief Justice of India would have primacy, in case of a difference of opinion between the Chief Justice of a High Court and the Chief Justice of India, the view expressed was, that the President should accept the opinion of the Chief Justice of India, unless such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.1981, it was held, that the same did not in any way tarnish the image of Judges, or mar the independence of the judiciary (paragraph 433). (iv). On the question of appointment of additional Judges, and the interpretation of Article 217, the opinion expressed by P.N. Bhagwati and E.S. Venkataramiah, JJ. were adopted (paragraph 434). (v). Insofar as the interpretation of Article 224 was concerned, the opinion of P.N. Bhagwati and D.A. Desai, JJ. were accepted, (paragraph 537). And accordingly, their conclusion about the continuation of S.N. Kumar, J., as an additional Judge, after the expiry of his term of appointment, was endorsed. (vi). On analyzing the decision rendered in the Sankalchand Himatlal Sheth case (1977) 4 SCC 193, inter alia, the following necessary concomitants of an effective consultation between the President and the Chief Justice of India were drawn. That the consultation, must be full and effective, and must precede the actual transfer of the Judge. If consultation with the Chief Justice of India had not taken place, before transferring a Judge, it was held, that the transfer would be unconstitutional. All relevant data and necessary facts, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forceable right to continue in office, came to be conferred on the additional Judges recruited from the Bar. It was felt, that it was impossible to construe Article 224(1), as conferring upon the appointing authority, any absolute power or discretion in the matter of appointment of additional Judges to a High Court (paragraphs 622 and 624). (iii). All submissions made on behalf of the Respondents, that granting extension to an additional Judge, or making him a permanent Judge was akin to a fresh appointment, were rejected. It was concluded, that extension to an additional Judge, or making him permanent, did not require re-determination of his suitability Under Article 217(1) (paragraph 628). (iv). While dealing with the question of continuation of an additional Judge, in situations where there were facts disclosing suspected misbehaviour and/or reported lack of integrity, the view expressed was, that while considering the question of continuation of a sitting additional Judge, on the expiry of his initial term, the test of suitability contemplated within the consultative process Under Article 217(1) should not be evoked--at least till a proper mechanism, having a legal sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite mechanism or modality of procedure, would not ensure complete insulation against executive interference. Conversely it was felt, that a selective transfer in an appropriate case, for strictly objective reasons, and in public interest, could be non-punitive. It was therefore concluded, that each case of transfer, whether based on policy, or for individual reasons, would have to be judged on the facts and circumstances of its own, for deciding, whether it was punitive (paragraph 649). (x). It was concluded, that by requiring a sitting additional Judge, to give his consent for being appointed to another High Court, virtually amounted to seeking his consent for his transfer from his own High Court to another High Court, falling within the ambit of Article 222(1). Referring to the judgment rendered in the Sankalchand Himatlal Sheth case: (1977) 4 SCC 193, it was felt, that the circular letter dated 18.3.1981 was an attempt to circumvent the safeguards and the stringent conditions expressed in the above judgment (paragraph 652). And further, that the circular letter clearly exuded an odour of executive dominance and arrogance, intended to have coercive effects on the minds of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 to 668). (xiv). With respect to the validity of the transfer of K.B.N. Singh, CJ., it was felt, that in the absence of any connivance or complicity, since no unfair play was involved in the procedure followed by the Chief Justice of India, it was liable to be concluded, that the impugned transfer had been made in public interest, and not by way of punishment. The above transfer was accordingly held to be valid (paragraph 680). D.A. Desai, J.: (i). After noticing, that the President Under Article 74, acts on the advice of the Council of Ministers, and that, while acting Under Article 217(3), the President performs functions of grave importance. It was felt, that it could not be said that while exercising the power of appointment of Judges to the higher judiciary, the President was performing either judicial or quasi judicial functions. The function of appointment of Judges was declared as an executive function, and as such, it was held, that Article 74 would come into operation. And therefore concluded, that the President would have to act, on the advice of the Council of Ministers, in the matter of appointment of Judges Under Article 217 (paragraph 715). And therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the constitutional functionaries, to sit tight over a proposal, without expressing their opinion on the merits of the proposal, and by sheer inaction, to kill a proposal. It was accordingly opined, that when the term of an additional Judge was about to expire, it was obligatory on the Chief Justice of the High Court, to initiate the proposal for completing the process of consultation, before the period of initial appointment expired (paragraph 772). (vii). With reference to the non-extension of the tenure of S.N. Kumar, J., it was felt, that when two high constitutional functionaries, namely, the Chief Justice of the Delhi High Court and the Chief Justice of India, had met with a specific reference to his doubtful integrity, the act of not showing the letter dated 7.5.1981 to the Chief Justice of India, would not detract from the fullness of the consultation, as required by Article 217. Accordingly, it was held, that there was a full and effective consultation, on all relevant points, including those set out in the letter dated 7.5.1981. And the claim of the concerned Judge for continuation, was liable to be rejected. It was however suggested, that the Government of India c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judiciary , it was observed, that while the administration of justice drew its legal sanction from the Constitution, its credibility rested in the faith of the people. Indispensable to such faith, was the independence of the judiciary . An independent and impartial judiciary, it was felt, gives character and content to the constitutional milieu (paragraph 874). (ii). On the subject of appointment of Judges to High Courts, it was essential for the President, to consult the Governor of the State, the Chief Justice of India and the Chief Justice of the concerned High Court. It was pointed out, that three distinct constitutional functionaries were involved in the consultative process, and each had a distinct role to play (paragraph 887). In a case where the Chief Justice of the High Court and the Chief Justice of India, were agreed on a recommendation, it was within reason to hold, that the President would ordinarily accept the recommendation, unless there were strong and cogent reasons, for not doing so (paragraph 889). It was however pointed out, that the President was not always obliged to agree, with a recommendation, wherein the Chief Justice of the High Court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly it was felt, that there was no doubt whatever, that the provision of Article 217(1) would come into play, when an additional Judge was to be considered for further appointment as an additional Judge, or was to be considered for appointment as a permanent Judge (paragraph 897). (vi). With reference to the non-continuation of S.N. Kumar, J., it was pointed out, that the allegations contained in the letter dated 7.5.1981 strongly influenced the decision of the Government. Since the aforesaid letter was not brought to the notice of the Chief Justice of India, it was inevitable to conclude, that the process of consultation with the Chief Justice of India was not full and effective, and the withholding of important and relevant material from the Chief Justice of India, vitiated the process. It was accordingly held, that the non-continuation of the term of S.N. Kumar, J., was in violation of the mandatory constitutional requirements contained in Article 217(1). It was felt, that the issue pertaining to the continuation of S.N. Kumar, J., needed to be reconsidered, and a decision needed to be taken, only after full and effective consultation (paragraph 904). vii). On the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. It was pointed out, that in all countries, where the rule of law prevailed, and the power to adjudicate upon disputes between a man and a man, and a man and the State, and a State and another State, and a State and the Centre, was entrusted to a judicial body, it was natural that such body should be assigned a status, free from capricious or whimsical interference from outside, so that it could act, without fear and in consonance with judicial conscience (paragraph 1068). (ii). Referring to Article 217(1) it was asserted, that each of the three functionaries mentioned therein, had to be consulted before a Judge of a High Court could be appointed. It was pointed out, that each of the consultees, had a distinct and separate role to play. Given the distinct roles assigned to them, which may to some extent be overlapping, it could not be said, that the Chief Justice of India occupied a position of primacy, amongst the three consultees (paragraph 1019). (iii). The power of appointment of a Judge of a High Court was considered to be an executive power (paragraph 1023). Accordingly, while making an appointment of a High Court Judge, the President was bound to act, on the advice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore passing an order of transfer (paragraphs 1097 and 1099). It was held, that the transfer of a Judge of a High Court to another High Court, could not be construed as a fresh appointment, in the High Court to which the Judge was transferred. An order of transfer made Under Article 222, it was held, was liable to be struck down by a Court, if it could be shown, that it had been made for an extraneous reason, i.e., on a ground falling outside the scope of Article 222. Under Article 222, a Judge could be transferred, when the transfer served public interest. It was held, that the President had no power to transfer a High Court Judge, for reasons not bearing on public interest, or arising out of whim, caprice or fancy of the executive, or because of the executive desire to bend a Judge to its own way of thinking (paragraphs 1097, 1099 and 1132). (vii). It was held, that Article 222 cannot be resorted to on the ground of alleged misbehaviour or incapacity of a Judge (paragraph 1139). (viii). Based on the opinion expressed by several expert bodies, it was opined, that any transfer of a Judge of a High Court Under Article 222, in order to implement the policy of appointing Chief J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made. (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India', and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 11. We record at the outset the statements of the Attorney General that (1) the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case (1993) 4 SCC 441 and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference. 19. It is likewise necessary to extract herein, only the final summary of conclusions expressed in the Third Judges case, which are placed below: 1. The expression consultation with the Chief justice of India in Articles 217(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of Indian does not constitute consultation within the meaning of the said Articles. 2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Court in the Second and Third Judges cases. It was the contention of the learned Attorney General, that the conclusions drawn in the above judgments, needed a reconsideration by way of a fresh scrutiny, to determine, whether the conclusions recorded therein, could withstand the original provisions of the Constitution, viewed in the background of the debates in the Constituent Assembly. 21. In order to record the facts truthfully, it was emphasized, that the submissions advanced by him, could not be canvassed on behalf of the Union of India as in the Third Judges case, the Union had consciously accepted as binding the judgment rendered in the Second Judges case. Despite the above, the Attorney General was emphatic, that the Union of India could not be debarred from seeking reconsideration of the judgment rendered by this Court in the Second Judges case. In order to dissuade the learned Attorney General from the course he insisted to pursue, it was suggested, that the determination by this Court in the Second Judges case would not prejudice the claim of the Union of India, if the Union could establish, that the basic structure of the Constitution, namely, the independenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, had been interpreted to mean concurrence . And accordingly, the President has been held to be bound, by the recommendation made to him, by the Chief Justice of India and his collegium of Judges. It was contended, that the above determination, was wholly extraneous to the plain reading of the language engaged in Article 124 (in its original format). It was asserted, that there was never any question of concurrence , as Article 124 merely contemplated consultation . It was contended, that the above consultation had been made mandatory and binding, on the President even in a situation where, the opinion expressed by the Chief Justice and the collegium of Judges, was not acceptable to the President. It was asserted, that it was not understandable, how this addition came to be made to the plain and simple language engaged in framing Article 124. It was submitted, that once primacy is given to the Chief Justice of India (i.e., to the collegium of Judges, contemplated under the Second and Third Judges cases), then there was an implied exclusion of consultation , with the other Judges of the Supreme Court, and also, with the Judges of the High Courts, even though, there was an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge of the Supreme Court, or a person who has held office as a Judge of a High Court, and was duly qualified for appointment as a Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court. It was pointed out, that this was yet another instance, where the President's noticeable role in the functioning of the higher judiciary, was contemplated by the Constitution itself. The Court's attention was then drawn to Article 130, whereunder, even though the seat of the Supreme Court was to be at Delhi, it could be moved to any other place in India, if so desired by the Chief Justice of India, with the approval of the President. Yet again, depicting the active role assigned to the President, in the functioning of the higher judiciary. Likewise, the Court's attention was invited to Articles 133 and 134, providing for an appellate remedy in civil and criminal matters respectively, to the Supreme Court, leaving it open to the Parliament to vary the scope of the Courts' appellate jurisdiction. Insofar as Article 137 is concerned, it was pointed out, that the power of review of the judgments or orders passed by the Supreme Court, was subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution, in activities strictly in the judicial domain. With reference to the activities of the Supreme Court, the Court's attention was also drawn to Article 146, which envisages that appointments of officers and servants of the Supreme Court, were to be made by the Chief Justice of India. It was pointed out, that the authority conferred Under Article 146, was subservient to the right of the President, to frame rules requiring future appointments to any office connected to the Supreme Court, to be made, only in consultation with the Union Public Service Commission. The aforesaid right of appointing officers and servants to the Supreme Court, is also clearly subservient to the right of the Parliament, to make provisions by enacting law on the above subject. In the absence of a legislation, at the hands of the Parliament, the conditions of service of officers and servants of the Supreme Court would be such, as may be prescribed by rules framed, by the Chief Justice of India. The rules framed by the Chief Justice, are subject to the approval by the President, with reference to salaries, allowances, leave and pension. 25. With reference to the appointments made to the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al provisions. In this behalf, he placed reliance on T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Re: Special Reference No. 1 of 2002 (2002) 8 SCC 237, and also on S.R. Chaudhuri v. State of Punjab (2001) 7 SCC 126. The following observations in the last cited judgment were highlighted: Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member's inclusion in the Cabinet was considered to be a privilege that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l provision is borne out by a series of decisions of this Court. [See Madhu Limaye In Re: AIR 1969 SC 1014, Golak Nath v. State of Punjab AIR 1967 SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in Union of India v. H.S. Dhillon (1971) 2 SCC 779 and the several opinions in Kesavananda Bharati (1973) 4 SCC 225, where the relevance of these debates is pointed out, emphasing at the same time, the extent to which and the purpose for which they can be referred to.] Since the expression backward or backward class of citizens is not defined in the Constitution, reference to such debates is permissible to ascertain, at any rate, the context, background and objective behind them. Particularly, where the Court wants to ascertain the 'original intent' such reference may be unavoidable. Reliance was also placed on Kesavananda Bharati v. State of Kerala: (1973) 4 SCC 225, and this Court's attention was invited to the following: 1088. Before I refer to the proceedings of the Constituent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing these provisions. The Advocate-General of Maharashtra says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The Court in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professional bodies, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted as a means to understand the true intent and import of the provisions of the Constitution, reference was made in extenso to the Constituent Assembly debates, with reference to the provisions (more particularly, to Article 124) which are subject matter of the present consideration. It was pointed out, that after the constitution of the Constituent Assembly, the issue of judicial appointments and salaries was taken up by an ad hoc committee on the Supreme Court. The committee comprised of S. Varadachariar (a former Judge of the Federal Court), B.L. Mitter (a former Advocate General of the Federal Court), in addition to some noted jurists-Alladi Krishnaswamy Ayyar, K.M. Munshi and B.N. Rau (Constitutional Adviser to the Constituent Assembly of India). The ad hoc committee presented its report to the Constituent Assembly on 21.5.1947. With reference to judicial independence, it modified the consultative proposal suggested in the Sapru Committee report, by recommending a panel of 11 persons, nominated by the President, in consultation with the Chief Justice of India. Alternatively, it was suggested, that the panel would recommend three candidates, and the President in consultatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Justice of India himself. It was suggested, that this was the immediate precursor to Article 124(2) of the Constitution, as it was originally framed. 28. It was pointed out, that in the above report prepared by the Constitutional Adviser, the following passage related to the judiciary: Regarding the removal of judges, he (Justice Frankfurter, Judge, Supreme Court of the United States of America) drew attention to a provision which had just been proposed in New York State-the provision has since been approved and which had the support of most of the judges and lawyers in this country. The provision is reproduced below: 9-a (1) A judge of the court of appeals, a justice of the supreme court, a judge of the court of claims... (types of judges) may be removed or retired also by a court on the judiciary. The court shall be composed of the chief judge of the court of appeals, the senior associate judges of the court of appeals and one justice of the appellate division in each department designated by concurrence of a majority of the justices of such appellate division... (2) No judicial officer shall be removed by virtue of this section except for cause or be retired except f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Members, or Law Ministers, as they would be called in future; no one would suggest that men of this type should be ineligible for appointment as judges afterwards.... Merit should be the only criterion for these high appointments; no constitutional ban should stand in the way of merit being recognized. It was asserted, that in the memorandum submitted by the Judges of the Federal Court and the Chief Justices of the High Courts, the following suggestions were made: It is therefore suggested that Article 193(1) may be worded in the following or other suitable manner: Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.... We do not think it is necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: That in Article 122, for the words the Chief Justice of India in consultation with the President the words the President in consultation with the Chief Justice of India be substituted. The response of the Constitutional Adviser was as follows: The provision for the fixation of the salaries, allowances and pensions of the officers and servants of the Supreme Court by the Chief Justice of India in consultation with the President contained in Clause (1) of Article 122 is based on the existing provision contained in Section 242(4) of the Government of India Act, 1935, as adapted. The Drafting Committee considered such a provision to be necessary to ensure the independence of the judiciary, the safeguarding of which was so much stressed by the Federal Court and the High Courts in their comments on the Draft Constitution. 29. It was pointed out, that the second draft of the Constitution, was introduced in the Constituent Assembly on 4.11.1948. The Court's attention was drawn to the discussions, with reference to appointments to the higher judiciary, including the suggestion of B. Pocker Sahib, who proposed an alternative to Article 103(2). Reference was also ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k it gives the Judiciary as much independence as is necessary for the purpose of administering justice without fear or favour. 31. Having extensively brought to our notice, the nature of the debates before the Constituent Assembly, and the decisions taken thereon, the learned Attorney General ventured to demonstrate, that the participation of the executive in the matter of appointment of high constitutional functionaries, could not-and did not , impinge upon their independence, in the discharge of their duties. Illustratively, reliance was placed on Part IV Chapter V of the Constitution, comprising of 4 Articles of the Constitution (Articles 148 to 151), dealing with the Comptroller and Auditor-General of India. It was submitted, that duties and powers of the Comptroller and Auditor-General of India, delineated in Article 149, revealed, that the position of the Comptroller and Auditor-General of India, was no less in importance vis- -vis the Judges of the higher judiciary. Pointing out to Article 148, it was his contention, that the appointment of the Comptroller and Auditor-General of India is made by the President. His removal Under Clause (1) of Article 148 could only, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Commissioners (and the Regional Commissioners) is regulated in the manner, as the President may by rules determine. Of course, subject to, enactment of law by Parliament. So as to depict similarity with the matter under consideration, it was contended, that the proviso Under Article 324(5) was explicit to the effect, that the Chief Election Commissioner could not be removed from his office, except in like manner, and on like grounds, as a Judge of the Supreme Court. And further more, that the conditions of service of the Chief Election Commissioner, could not be varied to his disadvantage, after his appointment. It was contended, that the Indian experience had been, that the Chief Election Commissioner, and the other Election Commissioners, had functioned with absolute independence, and that, their functioning remained unaffected, despite the fact that their appointment had been made, by the executive. It was submitted, that impartiality/independence emerged from the protection of the conditions of service of the incumbent after his appointment, and not by the method or manner of his appointment. 33. It was also the contention of the learned Attorney General, that implicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree as was found in Ranasinghe's case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Constitution (per Haldane, L.C. in Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. 1914 AC 237 and Ex Parte Walsh and Johnson; In Re: Yates (1925) 37 CLR 36 at p.58. The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the Legislature conferred by the Constitution would always be a question of interpretation of the Constitution. It may be added that at no stage the Respondents have contested the proposition that the validity of a constitutional amendment can be the subject of review by this Court. The Advocate-General of Maharashtra has characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. 80. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and later in Indira Nehru Gandhi v. Raj Narain (1976) 3 SCC 321, this Court declared separation of powers to be a part of the basic structure of the Constitution. In Kesavananda Bharati case Shelat and Grover, JJs. in SCC para 577 observed the precise nature of the concept as follows: (SCC p. 452) 577. ... There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree as was found in Ranasinghe case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue. 35. It was submitted, that the aforesaid observations as were recorded in the Samsher Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no mention: (i) of any Collegium in Article 124(2). (ii) The word used in Article 124(2) is consultation , and not concurrence . (iii) The President of India while appointing a Supreme Court Judge can consult any Judge of the Supreme Court or even the High Court as he deems necessary for the purpose, and is not bound to consult only the five seniormost Judges of the Supreme Court. 4. That by the judicial verdicts in the aforesaid two cases, Article 124(2) has been practically amended, although amendment to the Constitution can only be done by Parliament in accordance with the procedure laid down in Article 368 of the Constitution of India. 5. That Under Article 124(2) while appointing a Supreme Court Judge, the President of India has to consult the Chief Justice of India, but he may also consult any other Supreme Court Judge and not merely the four seniormost Judges. Also, the President of India can even consult a High Court Judge, whereas, according to the aforesaid two decisions the President of India cannot consult any Supreme Court Judge other than the four seniormost Judges of the Supreme Court, and he cannot consult any High Court Judge at all. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its fundamental rights; (b) The Petitioner has no locus standi to seek review of the judgments of this Court. In fact, a petition Under Article 32 of the Constitution does not lie to challenge the correctness of a judicial order; and (c) A Bench of two Judges cannot examine the correctness of the judgment of a nine-Judge Bench. (d) A Bench of two Judges cannot refer the matter to the larger Bench of nine Judges or more, directly. xxx 11. However, Mr. Ganguli dealing with the issue of locus standi of the Trust has submitted that the petition may not be maintainable but it should be entertained because it raises a large number of substantial questions of law. In order to fortify his submission he places reliance upon a recent Constitution Bench judgment of this Court in B.P. Singhal v. Union of India (2010) 6 SCC 331 wherein while dealing with the issue of removal of Governors, this Court held as under: (SCC p. 346, para 15) 15. The Petitioner has no locus to maintain the petition in regard to the prayers claiming relief for the benefit of the individual Governors. At all events, such prayers no longer survive on account of passage of time. However, with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the views expressed by H.M. Seervai. 38. In order to contend, that it was open to this Court, to make a reference for reconsideration of the matters already adjudicated upon, the learned Attorney General, invited our attention to Jindal Stainless Limited v. State of Haryana (2010) 4 SCC 595. 6. In Keshav Mills Co. Ltd. v. CIT AIR 1965 SC 1636...(AIR pp. 1643-44, para 23) a Constitution Bench of this Court enacted the circumstances in which a reference to the larger Bench would lie. It was held that in revisiting and revising its earlier decision, this Court should ask itself whether in the interest of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised? Whether on the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision bearing on the point not noticed? What was the impact of the error in the previous decision on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution (67th Amendment) Bill, 1990. It was submitted, that a large number of speakers had taken part in the debate and had made important suggestions. The above suggestions, drafted as a resolution of the seminar, were placed before the House, and were passed either unanimously or with an overwhelming majority. It was submitted, that the aforesaid resolutions were forwarded to the Chief Justice of India, through a covering letter dated 5.10.1990. It was pointed out, that resolutions were also passed, at the conclusion of the Chief Justices' Conference, held between 31.8.1990 and 2.9.1990, wherein also, the provisions of the Constitution (67th Amendment) Bill, 1990, were deliberated upon. It was submitted, that he had made a compilation of the resolutions passed at the Chief Justices Conference, and the conclusions drawn in the Second Judges case, which would give a bird's eye view, of the views expressed. The compilation to which learned Counsel drew our attention, is being extracted hereunder: ...(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned over its head , by the decision in the Second Judges case. Now, the collegium of Judges, headed by the Chief Justice of India, has been vested with the final determinative authority for making appointments to the higher judiciary. And the President is liable to concur , with the recommendations made. Based on the above assertions, it was the submission of the learned Counsel, that by wholly misconstruing Article 124, the Supreme Court had assumed the entire power of appointment. And the voice of the executive had been completely stifled. It was submitted, that the judiciary had performed a legislative function, while interpreting Article 124. It was asserted, that originally the founding fathers had the power to frame the provisions of the Constitution, and thereafter, the Parliament had the power to amend the Constitution in terms of Article 368. It was submitted, that the role assigned to the Constituent Assembly, as also to the Parliament, has been performed by this Court in the Second Judges case. It was submitted, that all this had been done in the name of judicial independence . The above logic was sought to be seriously contested by asserting, that judicial independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in the Second Judges case. It was contented, that the impugned constitutional amendment was an effort at the behest of the Parliament, to correct the above historical aberration. Learned Counsel concluded, by asserting, that there were two Houses of Parliament under the Constitution, but the Supreme Court in the Second Judges case, had acted as a third House of Parliament, namely, as the House of corrections. In the background of the aforesaid factual position, it was submitted, that when the Union of India and the States which ratified the Constitution (99th Amendment) Act, seek reconsideration of the Second Judges case, was it too much, that the Union and the States were asking for? 42. Following the submissions noticed hereinabove, we heard Mr. K. Parasaran, Senior Advocate, who also supported the prayer made by the learned Attorney General. It was submitted, that the appointment of Judges had nothing to do with independence of the Judge concerned, or the judicial institution as a whole. It was submitted, that subsequent to their appointment to the higher judiciary, the conditions of service of Judges of the High Court and the Supreme Court were securely protected. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence for reconsideration of the judgments rendered by this Court, in the Second and Third Judges cases, to a Bench with an appropriate strength. 44. Mr. Ravindra Srivastava, Senior Advocate, also supported the submissions for reference to a larger Bench. It was submitted, that the conclusions drawn by this Court in the Second Judges case, and the Third Judges case, were liable to be described as doubtful, because a large number of salient facts, had not been taken into consideration, when the same were decided. It was the contention of the learned Counsel, that the submissions advanced on behalf of the Petitioners, on merits, could not be supported by the text of the constitutional provisions, and that, the Petitioners' reliance squarely based on the majority judgment in the Second Judges case, as was further explained in the Third Judges case, was seriously flawed. It was submitted, that the thrust of the submissions advanced on behalf of the Petitioners on merits had been, not only that the consultation with the Chief Justice of India was mandatory, but the opinion of the collegium of Judges was binding on the executive. It was asserted, that neither of the above require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would be a serious inroad into the independence of the judiciary . It was therefore submitted, that the statement of the then Attorney General, during the course of hearing of the Third Judges case, could not be treated as binding, for all times to come, so as to deprive the executive and the legislature from even seeking a review of the judgments rendered. It was therefore contended, that it was implicit while discharging its duty, that this Court was obliged to correct the errors of law, which may have been committed in the past. Learned Counsel contended, that a perusal of the judgment of this Court in the Subhash Sharma case1991 Supp (1) SCC 574, clearly brought out, that no formal request was made to this Court for reconsideration of the legal position declared by this Court in the First Judges case. Yet, this Court, on its own motion, examined the correctness of the First Judges case, and suo motu, made a reference of the matter, to a nine-Judge Bench, to reconsider the law declared in the First Judges case. 46. While pointing to the reasons for reconsideration of the law laid down by this Court in the Second Judges case (read with the Third Judges case), learned sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia which is requirement of proviso, ignoring the substantive part. xi. The collegium system had been evolved, for consultation with the Chief Justice of India on the interpretation, that for purposes of consultation with the Chief Justice of India, the CJI alone as an individual would not matter, but would mean in plurality i.e. his collegium. But this is an interpretation only of the proviso and not of the substantive part of Article 124(2). xii. The collegium system was evolved for consultation with the CJI and his colleagues in particular in fixed numbers as laid down in the judgment. xiii. The whole provision for consultation by the President of India with the judges of the Supreme Court and the High Court, had thus been stultified, in ignorance of the substantive part of Article 124(2), and as such, one was constrained to question the majority judgment as being 'per incuriam'. 47. According to learned senior Counsel, a perusal of the judgment in the Subhash Sharma case 1991 Supp (1) SCC 574 would reveal, that reconsideration of the judgments in the First Judges case, was only on two issues. Firstly, the status and importance of consultation, and the prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urdwan (1972) 2 SCC 476] and K.C.P. Ltd. v. State Trading Corporation of India (1995) Supp. (3) SCC 466]. 48. Learned senior Counsel submitted, that in the Second Judges case, this Court assigned an innovative meaning to the words Chief Justice of India , by holding that the term Chief Justice of India in Article 124, included a plurality of Judges, and not the individual Chief Justice of India. This, according to learned Counsel, was against the plain meaning and text of Article 124. Learned Counsel, went on to add, that this Court in the Second Judges case, had laid down an inviolable rule of seniority, for appointment of Chief Justice of India. It also laid down, the rules and the norms, for transfer of Judges and Chief Justices, from one High Court to another. It also concluded, that any transfer of a Judge or Chief Justice of a High Court, made on the recommendation of the Chief Justice of India, would be deemed to be non-punitive. In sum and substance, learned Counsel contended, that the Second Judges case, laid down a new structure, in substitution to the role assigned to the Chief Justice of India. The conclusions recorded in the Second Judges case, according to learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though frequent overruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to reopen the issues which are concluded, it is by now well settled by a line of judicial pronouncements that it is emphatically the province and essential duty of the superior courts to review or reconsider their earlier decisions, if so warranted under compelling circumstances and even to overrule any questionable decision, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration. It was submitted, that Kuldip Singh, J., in the Second Judges case, had recorded as follows: 320. It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible. Whether it is to be followed in a given case or not is a question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to learned Counsel, has to be done because the Constitution is a living document, and needed to be reinvented, to keep pace with the change of times. It was submitted, that this may not be true for other branches of law, wherein judgments are not revisited, because the Courts were expected to clearly and unambiguously follow the principle of stare decisis, with reference to laws dealing with private rights. Insofar as the controversy in hand is concerned, it was submitted, that the conclusions recorded by this Court in the Second and Third Judges cases, indicated doubtful conclusions, because a large number of salient facts (as have been recorded above), had not been taken into consideration. It was submitted, that expediency in a controversy like the one in hand, should be in favour of the growth of law. It was submitted, that in their view this was one such case, wherein the issue determined by this Court in the Second and Third Judges cases, needed to be re-examined by making a reference to a larger Bench. Learned Counsel pointed out, that the submissions made in the different petitions filed before this Court, were not supported by the text of any constitutional provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely on the judgments in the Second and Third Judges cases, to record its conclusions. Referring to the factual position narrated above, it was submitted, that this Court would not be in a position to effectively adjudicate on the issues canvassed, till the matter was referred to a nine-Judge Bench (or even, a still larger Bench). 52. Mr. Ranjit Kumar, learned Solicitor General of India submitted, that he would support the claim for reference to a larger Bench, by relying upon two judgments, and say no more. First and foremost, he placed reliance on the Bengal Immunity Company Ltd. case (1955) 6 SCR 603, which it was pointed out, had considered the judgment in State of Bombay v. United Motors (India) Ltd.: (1953) SCR 1069. The matter, it was submitted, came to be referred to a seven-Judge Bench, to decide whether the judgment needed to be reconsidered. This process, according to learned Solicitor General, need to be adopted in the present controversy as well, so as to take a fresh call on the previous judgments. Learned Solicitor General then placed reliance on Keshav Mills Co. Ltd. v. Commissioner of Income-tax, Bombay North (1965) 2 SCR 908, wherein a seven-Judge Bench held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, Under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y days of the date upon which he is served with notice of an order Under Sub-section (4) of Section 33, the Assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the Assessee by a fee of one hundred rupees, require the appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court.... Based on the above, it was asserted, on the basis of the factual and legal position projected by the learned Attorney General, that the position declared by this Court in the Second Judges case, as also, in the Third Judges case, was clearly erroneous. It was submitted, that the procedure evolved by this Court for appointment of Judges to the higher judiciary having miserably failed, not because of any defect in the independence of the procedure prescribed, but because of the intra-dependence of the Judges , who took part in discharging the responsibilities vested in the collegium of Judges, certainly required a re-examination. 53. It is apparent from the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143, resulting in the re-examination of the matter, at the hands of yet another nine-Judge Bench, where the Union of India clearly expressed its stand in paragraph 11 as under: 11. We record at the outset the statements of the Attorney General that (1) the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference. It was submitted, that thereupon, the matter was again examined and the declared legal position in the Second Judges case, was reiterated and confirmed, by the judgment rendered in the Third Judges case. Premised on the aforesaid factual position, learned Counsel raised a poser, namely, how many times, can this Court revisit the same question? It was asserted, that just because such a prayer seems to be the only way out, for those representing the Respondents, the same need not be accepted. 55. Learned senior Counsel pointed out, that the legal position with reference to appointments to the higher judiciary came to be examined and declared, for the first time, in the First Judges case, in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the fruit rather than to the fruit directly. Watering the fruit alone is pointless ignoring the roots of the tree. The view that the two functionaries must keep distances from each other is counter-productive. The relationship between the two needs to be maintained with more consideration. xxx 503. A centuries old Baconian example given to describe the plight of a litigant coming to a court of law comes to my mind. It was described that when the sheep ran for shelter to the bush to save itself from rain and hail, it found itself deprived of its fleece when coming out. Same fate for the institution of the Chief Justice of India. Here it results simply and purely in change of dominance. In the post-S.P. Gupta period, the Central Government i.e. the Law Minister and the Prime Minister were found to be in a dominant position and could even appoint a Judge in the higher judiciary despite his being disapproved or not recommended by the Chief Justice of India and likewise by the Chief Justice of a State High Court. Exception perhaps could be made only when the Chief Justice was not emphatic of his disapproval and was non-committed. His stance could in certain circumstance be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the determination of the Third Judges case, the then Attorney General for India had made a statement to the Bench, that the Union of India, was not seeking a review or reconsideration of the judgment in the Second Judges case. Even though, the opinion tendered by this Court, consequent upon a reference made to the Supreme Court by the President of India Under Article 143, is not binding, yet a statement was made by Attorney General for India, that the Union of India had accepted as binding, the answers of this Court to the questions set out in the reference. All this, according to learned Counsel, stands recorded in paragraph 11 of the judgment rendered in the Third Judges case. According to learned senior Counsel, it was clearly beyond the purview of the Union of India, to seek a revisit of the Second and Third Judges cases. 58. Besides the position expressed in the foregoing paragraphs, even according to the legal position declared by this Court, it was not open to the Union of India and the State Governments, to require this Court to examine the correctness of the judgments rendered in the Second and Third Judges cases. It was submitted, that such a course could only be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sent back to the High Court with a direction that the High Court should deal with it in the light of the two relevant decisions in the New Jehangir Mills and the Petlad Company Ltd. While referring to Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh (1980) 1 SCC 223, our attention was drawn to the following observations recorded by the five-Judge Bench: 28. We are somewhat surprised that the argument about the invalidity of the Act on the score that it is with respect to a controlled industry' dies hard, despite the lethal decision of this Court in Ch. Tika Ramji case [1956] SCR 393. Enlightened litigative policy in the country must accept as final the pronouncements of this Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions, Pronouncements by Constitution Benches should not be treated so cavalierly as to be revised frequently. We cannot devalue the decisions of this Court to brief epheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re transfer of High Court Judges)-UOI v. Sankal Chand Seth (1977) 4 SCC 193 (5J)-as to whether a Judge of a High Court can be transferred to another High Court without his consent, it was decided by majority that he could be: the majority consisted of Justice Chandrachud, Justice Krishna Iyer and Justice Murtaza Fazal Ali. (ii) The judgment of Justice Krishna Iyer (on behalf of himself and Justice Murtaza Fazal Ali in Sankal Chand Seth-[with which Bhagwati, J. said he was entirely in agreement ] reads as follows (paras 115-116): 115. The next point for consideration in this appeal is as to the nature, ambit and scope of consultation, as appearing in Article 222(1) of the Constitution, with the Chief Justice of India. The consultation, in order to fulfil its normative function in Article 222(1), must be a real, substantial and effective consultation based on full and proper materials placed before the Chief Justice by the Government. Before giving his opinion the Chief Justice of India would naturally take into consideration all relevant factors and may informally ascertain from the Judge concerned if he has any real personal difficulty or any humanitarian ground on which hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly. (iii) Justice Chandrachud (in the course of his judgment) agreeing-in paragraph 41 of Sankalchand Seth followed Shamsher Singh (para 149). Based on the aforesaid, it was the assertion of the learned senior Counsel that even if the contention advanced by the counsel for the Respondents was to be accepted, namely, that the decisions rendered by this Court in the above two cases were required to be re-examined, by a reference to a larger Bench, still the observations recorded in paragraph 149 in the Samsher Singh case (1974) 2 SCC 831 would continue to hold the field, as the review of the same had not been sought. V. THE CONSIDERATION: 60. In the scheme of the Constitution, the Union judiciary has been dealt in Chapter IV of Part V, and the High Courts in the States, as well as, the Subordinate-courts have been dealt with in Chapters V. and VI respectively, of Part VI. The provisions of Parts V. and VI of the Constitution, with reference to the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (1977) 4 SCC 193, with reference to Article 222, another Constitution Bench of this Court, reiterated the conclusion drawn in the Samsher Singh case (1974) 2 SCC 831, by holding, that in all conceivable cases, consultation with the Chief Justice of India, should be accepted, by the Government of India. And further, that in the event of any departure, it would be open to a court to examine whether, any other circumstances had entered into the verdict of the executive. More importantly, this Court expressly recorded an ardent hope, that the exposition recorded in the Samsher Singh case (1974) 2 SCC 831, would not fall on deaf ears. No doubt can be entertained, that yet again, this Court read the term consultation as an expression, conveying primacy in the matter under consideration, to the view expressed by the Chief Justice. The solitary departure from the above interpretation, was recorded by this Court in the First Judges case, wherein it came to be concluded, that the meaning of the term consultation could not be understood as concurrence . In other words, it was held, that the opinion tendered by the Chief Justice of India, would not be binding on the executive. The fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position clearly expressed, there was hardly any variance, on the issues canvassed. So was the position with the Third Judges case, which was a unanimous and unambiguous exposition of the controversy. We, therefore, find ourselves not inclined to accept the prayer for a review of the Second and Third Judges cases. 62. Having given pointed and thoughtful consideration to the proposition canvassed at the hands of the learned Counsel for the Respondents, we are constrained to conclude, that the issue of primacy of the judiciary, in the matter of appointment and transfer of Judges of the higher judiciary, having been repeatedly examined, the prayer for a re-look/reconsideration of the same, is just not made out. This Court having already devoted so much time to the same issue, should ordinarily not agree to re-examine the matter yet again, and spend more time for an issue, already well thrashed out. But time has not been the constraint, while hearing the present cases, for we have allowed a free debate, and have taken upon ourselves the task of examining the issues canvassed. Yet, the remedy of review must have some limitations. Mr. Fali S. Nariman, learned senior Counsel, is right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the Constituent Assembly debates, not to create an Imperium in Imperio, the Second and Third Judges cases had done just that. It was submitted, that in the process of selection and appointment of Judges to the higher judiciary, being followed since 1993, Judges alone had been appointing Judges. It was also contended, that the Constitution contemplates a system of checks and balances, where each pillar of governance is controlled by checks and balances, exercised by the other two pillars. It was repeatedly emphasized, that in the present system of selection and appointment of Judges to the higher judiciary, the executive has no role whatsoever. It was accordingly the contention of the Respondents, that the manner in which Articles 124, 217 and 222 had been interpreted in the Second and Third Judges cases, fell foul of the intent of the Constituent Assembly. This, according to the learned Counsel for the Respondents, was reason enough, to revisit and correct, the view expressed in the Second and Third Judges cases. 65. It is not possible for us to accept the contention advanced at the hands of the learned Counsel for the Respondents. Consequent upon the pronouncement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Step 5: The Union Minister for Law and Justice would, at his own, consider the recommendations placed before him, in the light of the reports, as may be available to the Government, in respect of the names under consideration. The proposed names, would be subject to scrutiny at the hands of the Intelligence Bureau, through the Union Ministry of Home Affairs. The Intelligence Bureau would opine on the integrity of the individuals under consideration. Step 6: The entire material, as is available with the Union Minister for Law and Justice, would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would, in consultation with his senior colleagues comprised in the Supreme Court collegium, form his opinion with regard to the persons recommended for appointment. Step 7: Based on the material made available, and additionally the views of Judges of the Supreme Court (who were conversant with the affairs of the concerned High Court), the Chief Justice of India in consultation with his collegium of Judges, would forward his recommendation, to the Union Minister for Law and Justice. The above noted views of Judges of the Supreme Court, convers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itability of a candidate, is also independently examined at the hands of the Union of Minister for Law and Justice. The Ministry of Law and Justice has a standard procedure of seeking inputs through the Union Ministry of Home Affairs. Such inputs are made available by the Union Ministry for Home Affairs, by having the integrity, social behaviour, political involvement and the like, examined through the Intelligence Bureau. After the receipt of such inputs, and the examination of the proposal at the hands of the Union Minister for Law and Justice, the file proceeds to the Chief Justice of India, along with the details received from the quarters referred to above. 69. After the Chief Justice of India, in consultation with his collegium of Judges recommends the concerned candidate for elevation to the High Court, the file is processed for a third time, by the executive. On this occasion, at the level of the Prime Minister of India. During the course of the instant consideration also, the participation of the executive is not an empty formality. Based on the inputs available to the Prime Minister, it is open to the executive, to yet again return the file to the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the Constituent Assembly debates. It was sought to be asserted, that for an apposite understanding of the provisions of the Constitution, it was imperative to refer to the Constituent Assembly debates, which had led to formulating and composing of the concerned Article(s). Reliance was accordingly placed on the debates, which had led to the drafting of Article 124. It was submitted, that the conclusions drawn by this Court, in the Second Judges case, overlooked the fact, that what had been expressly canvassed and raised by various Members of the Constituent Assembly, and rejected on due consideration, had been adopted by the judgment in the Second Judges case. It was, therefore, the contention of the learned Attorney General, that the judgments rendered in the Second and Third Judges cases recorded a view, diagonally opposite the intent and resolve of the Constituent Assembly. 74. For reasons of brevity, it is not essential for us to extract herein the amendments sought by some of the eminent Members of the Constituent Assembly in the draft provision (to which our attention was drawn). At this stage, we need only to refer to paragraph 772 (already extracted above), from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, offices of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly was, that our judiciary must be independent of the executive . The same sentiment was expressed by Dr. B.R. Ambedkar while responding to K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Anathasayanam Ayyangar (extracted in paragraph 30 above) wherein he emphasized, that ...there is no doubt that the House in general, has agreed that the independence of the Judiciary, from the Executive should be made as clear and definite as we could make it by law... The above assertion made while debating the issue of appointment of Judges to the Supreme Court, effectively acknowledges, that the appointment of Judges to the higher judiciary, has a direct nexus to the issue of independence of the judiciary . It therefore, does not lie in the mouth of the Respondents to assert, that the subject of appointment would not fall within the domain/realm of independence of the judiciary . 77. While responding to the second and third proposals referred to above, Dr. B.R. Ambedkar, cited the manner of appointment of Judges in Great Britain, and pointed out, that in the United Kingdom appointments were made by the Crown, without any kind of limitation, and as such, fell wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure of appointing Judges, by seeking a vote of approval by one or the other (or both) House(s) of Parliament would be cumbersome. More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of the possibility of the appointments being directed and impacted by political pressure and political consideration , if the legislature was involved. We are therefore satisfied, that when the Constituent Assembly used the term consultation , in the above provisions, its intent was to limit the participatory role of the political-executive in the matter of appointments of Judges to the higher judiciary. 78. It was the view of Dr. B.R. Ambedkar, that the draft article had adopted a middle course, by not making the President-the executive the supreme and absolute authority in the matter of making appointments of Judges. And also, by keeping out the legislators for their obvious political inclinations and biases, which render them unsuitable for shouldering the responsibility. We are therefore of the view, that the judgments in the Second and Third Judges cases cannot be blamed, for not assigning a dictionary meaning to the term consultation . If the real purpose sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive role in the selection of Judges to the higher judiciary, quite contrary to the submission advanced on behalf of the Respondents. We are satisfied, that the entire discussion and logic expressed during the debates of the Constituent Assembly, could be given effect to, by reading the term consultation as vesting primacy with the judiciary, on the matter being debated. We are also of the view, that the above debates support the conclusions drawn in the judgments of which review is being sought. For the reasons recorded hereinabove, we find no merit in the submissions advanced by the learned Counsel for the Respondents based on the Constituent Assembly debates. IV. 81. The consideration in hand, also has a historic perspective. We would venture to examine the same, from experiences gained, after the Constitution became operational i.e., after the people of this country came to govern themselves, in terms of the defined lines, and the distinctiveness of functioning, set forth by the arrangement and allocation of responsibilities, expressed in the Constitution. In this behalf, it would be relevant to highlight the discussion which took place in Parliament, when the Fourteen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on extraneous considerations, we gave them the facts and figures concerning all the appointments made since 1950. We drew their pointed attention to the fact that, as the Home Minister pointed out yesterday, except in the case of one Judge out of the 176 odd Judges appointed since 1950, all were appointed on the advice of the Chief Justice. With regard to the one there was difference of opinion between the local Chief Justice and the Chief Justice of India and the Government accepted the advice of the local Chief Justice rather than the Chief Justice of India. But it was not their nominee. We should have expected the Law Commission, in all fairness, to have dealt with the communication from the Government giving facts of all the appointments not only of the High Courts but of the Supreme Court. I am not saying that they were obliged to do so, but it is only a fair thing to do, namely, when you bring certain accusation in a solemn document like the Law Commission's Report, you should deal with all the arguments for and against. We should have expected in all fairness that these facts ought to have been dealt with. Unfortunately, no facts are set out so that it is impossible to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Ever since 1974, when the above judgment was rendered, the above declaration, has held the field, as the above judgment has neither been reviewed nor set aside. It cannot be overlooked, that the observations extracted from the Samsher Singh case: (1974) 2 SCC 831, were reaffirmed by another five-Judge Bench, in the Sankalchand Himatlal Sheth case: (1977) 4 SCC 193, as under: This then, in my judgment, is the true meaning and content of consultation as envisaged by Article 222(1) of the Constitution. After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer. But it is necessary to reiterate what Bhagwati and Krishna Iyer, JJ., said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 124, 217 and 222), adopted a procedure, wherein primacy in the decision making process, was consciously entrusted with the judiciary. This position was followed, from the very beginning, after the promulgation of the Constitution, by the executive, at its own. Insofar as the legislature is concerned, it is apparent, that the issue came up for discussion, in a responsive manner when the Fourteenth Report of the Law Commission on Judicial Reforms (1958), was discussed by the Parliament, as far back as in 1959, just a few years after the country came to be governed by the Constitution. It is apparent, that when the two Houses of the Parliament, reflected inter alia on Articles 124, 217 and 222, in the matter of appointment of Judges to the higher judiciary, the unanimous feeling which emerged was, that ... the advice of the most competent dependent and eminent person... -the Chief Justice of India, had been followed rightfully. Two aspects of the parliamentary discussion, which were kept in mind when the issue was deliberated, need to be highlighted. First, that the President meant (for all practical purposes), the concerned Minister, or the Council of Ministers headed by the Prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration the views expressed in respect of the adoption of separation of powers in the Constitution. When the draft prepared by the Constituent Assembly came up for debate, Dr. B.R. Ambedkar proposed an amendment of Article 39A. It would be relevant to mention, that the aforesaid amendment, on being adopted, was incorporated as Article 50 in the Constitution (as originally enacted). It is also necessary to notice, that the Government had already commenced to function, with Jawaharlal Nehru as the Prime Minister, when the draft of the Constitution was being debated before the Constituent Assembly. His participation in the debates of the Constituent Assembly, therefore, was not only in his capacity as a Member of the Constituent Assembly, but also, as a representative of the Government of India. It is necessary to extract hereunder, the views expressed by Jawaharlal Nehru, Bakshi Tek Chand and Loknath Misra, in the above debates, relating to separation of powers . Relevant extracts are being reproduced hereunder: The Honourable Pandit Jawaharlal Nehru (United Provinces: General): .....Coming to this particular matter, the honourable speaker, Pandit Kunzru, who has ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it may be very difficult to bring about, it may produce enormous confusion. I think, therefore, that Dr. Ambedkar's amendment, far from lessening the significance or the importance of this highly desirable change that we wish to bring about, places it on a high level before the country. And I do not see myself how any Provincial or other Government can forget this Directive or delay it much. After all, whatever is going to be done in the future will largely depend upon the sentiment of the people and the future Assemblies and Parliaments that will meet. But so far as this Constitution is concerned, it gives a strong opinion in favour of this change and it gives it in a way so as to make it possible to bring it about in areas where it can be brought about-the provinces, etc.-and in case of difficulty in any particular State, etc., it does not bind them down. I submit, therefore, that this amendment of Dr. Ambedkar should be accepted. (Cheers). Dr. Bakshi Tek Chand (East Punjab: General): Mr. Vice-President, Sir, I rise to lend my whole hearted support to the amendment which has been moved by Dr. Ambedkar today. The question of the separation of executive and judicial funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Prime Minister today. He has expressly stated that it is the policy of the Government, and it is their intention to see that this reform is given immediate effect to. xxx I am glad to hear that he confirms it. This gives the quietus to these two objections which have been raised, that because of the changed circumstances, because we have attained freedom, it is no longer necessary and that the financial burden will be so heavy that it might crush provincial Governments. Both these objections are hollow. One word more I have to say in this connection and that is, that with the advent of democracy and freedom, the necessity of this reform has become all the greater. Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the free administration of justice. Those of you, who may be reading news paper reports of judicial decisions lately, must have been struck with this type of interference which has been under review in the various High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and executive functioning. He pointed out, that year in and year out , the late Man Mohan Ghosh and Bapu Surendranath Banerji had raised the instant question, in all public meetings. And when the Congress first met in Bombay in 1885, the matter of separating the judiciary from the executive, was placed above all other issues under consideration. Thereafter, not only the politicians of all schools of thought, but even retired officers, who had actually spent their lives in administration, had supported the issue of separation of powers . He also highlighted, that in 1899, Romesh Chunder Dutt had devoted a large part of his presidential address to the issue. And that, retired High Court Judges and Englishmen like Sir Arthur Hobhouse and Sir Arthur Wilson (both of whom, subsequently became Members of the Judicial Committee of the Privy Council), also supported the above reform. The debate, it was pointed out, had been on going, to accept the principle of separation of powers , whereby, the judiciary would be kept apart from the executive. He also pointed to instances, indicating interference by Ministers and members of the administration, which necessitated a complete separatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive, or of the legislature. 91. Whilst advancing the instant contention, it was the pointed assertion of the learned Attorney General, that neither of the judgments rendered in the Second and Third Judges cases had held, that the selection and appointment of Judges, to the higher judiciary, would fall within the purview of independence of the judiciary . It was therefore his contention, that it was wrongful to assume, on the basis of the above two judgments, that the question of appointment of Judges to the higher judiciary would constitute a component of the basic structure of the Constitution. It was the contention of the learned Attorney General, that the Parliament, in its wisdom, had now amended the Constitution, admittedly altering the process of selection and appointment of Judges to the higher judiciary (including their transfer). It was further contended, that the process contemplated through the Constitution (99th Amendment) Act, coupled with the NJAC Act, was such, that it cannot be considered to have interfered with, or impinged upon, the independence of the judiciary , and thus viewed, it would not be rightful to conclude, that the impugned constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained. 16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public. 17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience. Therefore to contend, that the subject of appointment is irrelevant to the question of the independence of the judiciary , must be considered as a misunderstanding of a well recognized position. 93. Whilst dealing with the instant contention, we will also examine if this Court in the Second and Third Judges cases, had actually dealt with the issue, whether appointment of Judges to the higher judiciary, was (or, was not) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is quite another matter, whether the manner of selection and appointment of Judges, introduced through the Constitution (99th Amendment) Act coupled with the NJAC Act, can indeed be considered to be violative of independence of the judiciary . This aspect, shall be examined and determined independently, while examining the merits of the challenge raised by the Petitioners. VII. 94. A perusal of the provisions of the Constitution reveals, that in addition to the appointment of the Chief Justice of India and Judges of the Supreme Court, Under Article 124, the President has also been vested with the authority to appoint Judges and Chief Justices of High Courts Under Article 217. In both the above provisions, the mandate for the President, inter alia is, that the Chief Justice of India shall always be consulted , (the first proviso, Under Article 124(2), as originally enacted), and with reference to Judges of the High Court, the language engaged in Article 217 was, that the President would appoint Judges of High Courts after consultation with the Chief Justice of India (per sub-Article (1) of Article 217). 95. To understand the term consultation engaged in Articles 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the learned Attorney General, in exercising his responsibilities Under Articles 124, 217, 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, the President is only a figurative authority, whereas truthfully, the authority actually vests in the Council of Ministers headed by the Prime Minister. And as such, for all intents and purposes, the authority vested in the President for appointing different constitutional authorities, truly means that the power of such appointment is vested in the executive. 97. If one were to understand the words, as they were expressed in Article 74, in our considered view, it would be difficult to conclude, that aid and advice can be treated synonymous with a binding direction , an irrevocable command or a conclusive mandate . Surely, the term aid and advice cannot individually be construed as an imperative dictate, which had to be obeyed under all circumstances. In common parlance, a process of consultation is really the process of aid and advice . The only distinction being, that consultation is obtained, whereas aid and advice may be tendered. On a plain reading therefore, neither of the two ( aid and advice and consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of the National Commission for Scheduled Castes, as also, those of the National Commission for Scheduled Tribes. This contrast between Articles 124 and 217 on the one hand, and the absence of any consultation , with reference to the appointments contemplated Under Articles 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, leaves no room for any doubt, that the above consultation was not a simpliciter consultation . And since, the highest functionary in the judicial hierarchy was obliged to be consulted, a similar respectability needed to be bestowed on him. What would be the worth of the mandatory consultation , with the Chief Justice of India, if his advice could be rejected, without any justification? It was therefore, concluded by this Court, that in all conceivable cases, consultation with the highest dignitary in the judiciary-the Chief Justice of India, will and should be accepted. And, in case it was not so accepted, it would be permissible to examine whether such non acceptance was prompted by any oblique consideration. Rightfully therefore, the term consultation used in Articles 124 and 217, as they were originally enacted meant, that primacy had to be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly similar to the one in hand, and has never been questioned, it is quite understandable how the Union of India, desires to persuade this Court, to now examine the term consultation differently with reference to Articles 124 and 217, without assailing the meaning given to the aforesaid term, with reference to a matter also governing the judiciary. VI. CONCLUSION: 101. Based on the conclusions drawn hereinabove, while considering the submissions advanced by the learned Counsel for the rival parties, as have been recorded in V-The Consideration , we are of the view, that the prayer made at the hands of the learned Counsel for the Respondents, for revisiting or reviewing the judgments rendered by this Court, in the Second and Third Judges cases, cannot be acceded to. The prayer is, accordingly, hereby declined. THE ORDER ON MERITS I. PREFACE: 1. It is essential to begin the instant order by a foreword, in the nature of an explanation. For, it would reduce the bulk of the instant order, and obviate the necessity to deal with issues which have been considered and dealt with, while hearing the present set of cases. 2. The question which arises for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was submitted by Mr. Fali S. Nariman, Senior Advocate, that the power of amendment of the Constitution is not a plenary power. It was pointed out, that the above power was limited, inasmuch as, the power of amendment did not include the power of amending the core or the basic structure of the Constitution. In this behalf, learned Counsel placed reliance on Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, wherein majority view was expressed through Y.V. Chandrachud, CJ., as under: 17. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, Under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. In the above judgment, the minor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power and convert it into an absolute power. Clause (5) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the amending power of Parliament. There is also another ground on which the validity of this clause can be successfully assailed. This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure. I would in the circumstances hold Clause (5) of Article 368, to be unconstitutional and void. With reference to the same proposition, learned Counsel placed reliance on Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651. It was submitted, that the acceptance of the principle of basic structure of the Constitution, resulted in limiting the amending power postulated in Article 368. 6. According to the learned Counsel, it is now accepted, that independence of the judiciary , rule of law , judicial review and separation of powers are components of the basic structure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of justice in its broad and essential features, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for any one to think otherwise. But this has been accomplished after a long fight culminating in the Act of Settlement, 1688. Prior to the enactment of that Act, a Judge in England held tenure at the pleasure of the Crown and the Sovereign could dismiss a Judge at his discretion, if the Judge did not deliver judgments to his liking. No less illustrious a Judge than Lord Coke was dismissed by Charles I for his glorious and courageous refusal to obey the King's writ de non procedendo rege inconsulto commanding him to step or to delay proceedings in his Court. The Act of Settlement, 1688 put it out of the power of the Sovereign to dismiss a Judge at pleasure by substituting 'tenure during good behaviour' for 'tenure at pleasure'. The Judge could then say, as did Lord Bowen so eloquently: These are not days in which any English Judge will fail to assert hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f power by the executive ... in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient judiciary has been steadily kept in view. (vide B. Shiva Rao: The Framing of India's Constitution, Volume I-B, p. 196) 55. In this context, we may make it clear by borrowing the inimitable words of Justice Krishna Iyer, Independence of the judiciary is not genuflexion, nor is it opposition of Government . Vide Mainstream-November 22, 1980 and at one point of time Justice Krishna Iyer characterised this concept as a Constitutional Religion . 56. Indisputably, this concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a fixed-star in our constitutional consultation and its voice centres around the philosophy of the Constitution. The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administration of justice. It is only with the object of successfully achieving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges. Only then, the executive and legislative intrusion, could be effectively controlled and curbed. 9. Learned Counsel, then ventured to make a reference to the frequently quoted speech of Dr. B.R. Ambedkar (in the Constituent Assembly on 24.5.1949). It was submitted, that the above speech was duly considered in the Second Judges case, wherein this Court concluded as under: 389. Having held that the primacy in the matter of appointment of Judges to the superior courts vests with the judiciary, the crucial question which arises for consideration is whether the Chief Justice of India, under the Constitution, acts as a persona designata or as the leader-spokesman for the judiciary. 390. The constitutional scheme does not give primacy to any individual. Article 124(2) provides consultation with the Chief Justice of India, Judges of the Supreme Court and Judges of the High Courts. Likewise Article 217(1) talks of Chief Justice of India and the Chief Justice of the High Court. Plurality of consultations has been clearly indicated by the Framers of the Constitution. On first reading one gets the impression as if the Judges of the Supreme Court and High Courts have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court in Articles 124(2) and 217(1) of the Constitution mean the said judicial functionaries as representatives of their respective courts. In conjunction with the observations extracted hereinabove, the Court's attention was also invited to the following further conclusions: 466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel, that the conclusions recorded by this Court in the Second Judges case, had been accepted by the executive and the legislature. It was acknowledged, that in the matter of appointment of Judges to the higher judiciary, primacy would vest with the judiciary, and further that, the opinion of the judiciary would have an element of plurality. This assertion was sought to be further established, by placing reliance on the Third Judges case. It was submitted, that the conclusions of the majority judgment, in the Second Judges case, were reproduced in paragraph 9 of the Third Judges case, and thereupon, this Court recorded the statement of the then Attorney General, that through the Presidential Reference, the Union of India was not seeking, a review or reconsideration, of the judgment in the Second Judges case. And that, the Union of India had accepted the above majority judgment, as binding. In this context, paragraphs 10 to 12 of the Third Judges case, which were relied upon, are being reproduced below: 10. We have heard the learned Attorney General, learned Counsel for the interveners and some of the High Courts and the Advocates General of some States. 11. We recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existed earlier, had to be preserved. By placing reliance on Articles 124 and 217, it was asserted, that the above provisions, as originally enacted, were explained by decisions of this Court, starting from 1974 in Samsher Singh v. State of Punjab (1974) 2 SCC 831, followed by the Sankalchand Himatlal Sheth case (1977) 4 SCC 193 in 1977, and the Second Judges case in 1993, and finally endorsed in 1998 by the Third Judges case. It was submitted, that four Constitution Benches of the Supreme Court, had only affirmed the practice followed by the executive since 1950 (when the people of this country, agreed to be governed by the Constitution). It was pointed out, that the process of appointment of Judges to the higher judiciary, had continued to remain a participatory consultative process, wherein the initiation of the proposal for appointment of a Judge to the Supreme Court, was by the Chief Justice of India; and in the case of appointment of Judges to High Courts, by the Chief Justice of the concerned High Court. And that, for transfer of a Judge/Chief Justice of a High Court, to another High Court, the proposal was initiated by the Chief Justice of India. It was contended, that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be negatived, by any two Members of the NJAC. Even by the two eminent persons who may have no direct or indirect nexus with the process of administration of justice. It was therefore submitted, that the primacy vested with the Chief Justice of India had been fully and completely eroded. 13. With reference to the subject of primacy of the judiciary, it was asserted, that under the system sought to be substituted, the proposal for appointment of Judges to the Supreme Court, could only have been initiated by the Chief Justice of India. And likewise, the proposal for transfer of a Judge or the Chief Justice of a High Court, could only have been initiated by the Chief Justice of India. And likewise, the proposal for appointment of a Judge to a High Court, could only have been initiated by the Chief Justice of the concerned High Court. In order to demonstrate the changed position, learned Counsel placed reliance on Article 124B introduced by the Constitution (99th Amendment) Act, whereunder, the authority to initiate the process, had now been vested with the NJAC. Under the new dispensation, the NJAC alone would recommend persons for appointment as Judges to the higher judiciary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the declared position of law, in the First, Second and Third Judges cases, insofar as the present controversy was concerned. According to learned Counsel, if the enactments under challenge, were found to be in breach of the basic structure of the Constitution, as declared in the above judgments, the impugned constitutional amendment, as also, the legislation under reference, would undoubtedly be constitutionally invalid. 15. In the above context, learned Counsel pointed out, that with reference to an amendment to the fundamental right(s), enshrined in Part III of the Constitution, guidelines were laid down by this Court in M. Nagaraj v. Union of India (2006) 8 SCC 212, as also, in the Kihoto Hollohan case 1992 Supp (2) SCC 651. It was submitted, that the change through the impugned amendment to the Constitution, (and by the NJAC Act) was not a peripheral change, but was a substantial one, which was also seemingly irreversible. And therefore, according to learned Counsel, its validity would have to be determined, on the basis of the width and the identity tests. It was submitted, that the width and the identity tests were different from the tests applicable for dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment will be invalid, if it interferes with or undermines the basic structure. The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution. 16. It was submitted, that whilst the Parliament had the power to amend the Constitution; the legislature (-or the executive), had no power to either interpret the Constitution, or to determine the validity of an amendment to the provisions of the Constitution. The power to determine the validity of a constitutional amendment, according to learned Counsel, exclusively rests with the higher judiciary. Every amendment had to be tested on the touchstone of basic structure -as declared by the judiciary. It was submitted, that the aforesaid power vested with the judiciary, could not be withdrawn or revoked. This, according to learned Counsel, constituted the fundamental judicial power, and was no less significant/weighty than the legislative power of Parliament. The importance of the power of judicial review vested with the higher judiciary (to examine the validity of executive and legislative actions), bestowed superiority to the judiciary over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure of the Constitution was not violated. Relying on the M. Nagaraj case (2006) 8 SCC 212, the Court's attention was drawn to the following observations: 18. The key issue, which arises for determination in this case is-whether by virtue of the impugned constitutional amendments, the power of Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements? Standards of judicial review of constitutional amendments 19. The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges. Learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us is regarding the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. 23. .....In S.R. Bommai (1994) 3 SCC 1 the Court clearly based its conclusion not so much on violation of particular constitutional provisions but on this generalised ground i.e. evidence of a pattern of action directed against the principle of secularism. Therefore, it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of constitutional law even if they are not expressly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged. 22. Referring to the position expressed by this Court, learned Counsel submitted, that the overarching principle for this Court, was to first keep in its mind, the exact nature of the amendment contemplated through the Constitution (99th Amendment) Act. And the second step was, to determine how fundamental the amended provision was. For this, reliance was again placed on the M. Nagaraj case (2006) 8 SCC 212, and our attention was drawn to the following conclusions: 102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the width test and the test of identity . As stated hereinabove, the concept of the catch-up rule and consequential seniority are not constitutional requirements. They are not implicit in Clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Sawhney v. Union of India 1992 Supp (3) SCC 217... were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the right . The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the width test , we do not find obliteration of any of the constitutional limitations. Applying the test of identity , we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets-- formal equality and proportional equality . Proportional equality is equality in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional. Since the aforesaid provisions constitute the edifice of the NTT Act, and without these provisions the remaining provisions are rendered ineffective and inconsequential, the entire enactment is declared unconstitutional. Based on the above, it was asserted, that this Court had now clearly laid down, that on issues pertaining to the transfer of judicial power, the salient characteristics, standards and conventions of judicial power, could not be breached. It was also submitted, that evaluated by the aforesaid standards, it would clearly emerge, that the independence of the judiciary had been seriously compromised, through the impugned constitutional amendment (and the NJAC Act). 23. It was the submission of Mr. Ram Jethmalani, learned Senior Advocate, that the defect in the judgment rendered by this Court in the First Judges case, was that, Article 50 of the Constitution had not been appropriately highlighted, for consideration. It was submitted, that importance of Article 50 read with Articles 12 and 36, came to be examined in the Second Judges case, wherein the majority view, was as follows: 80. From the above deliberation, it is clear that Article 50 was referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xperience shows, have never been successful. Therefore, faced with such a piquant situation, it has become imperative for us to solve these problems within the constitutional fabric by interpreting the various provisions of the Constitution relating to the functioning of the judiciary in the light of the letter and spirit of the Constitution. xxx 141. Mr. Ram Jethmalani, learned senior Counsel expressed his grievance that the principles laid down in Chandra Mohan case (1967) 1 SCR 77, 83... were not appreciated by the learned Judges while dealing with Samsher Singh v. State of Punjab (1974) 2 SCC 831 who in his submission, have ignored the principle of harmonious construction which was articulated in K.M. Nanavati v. State of Bombay (1961) 1 SCR 497... According to him, the judgment in Gupta case 1981 Supp SCC 87 may be regarded as per incuriam. He articulates that the expression 'consultation' is itself flexible and in a certain context capable of bearing the meaning of 'consent' or 'concurrence'. xxx 154. The controversy that arises for scrutiny from the arguments addressed boils down with regard to the construction of the word 'consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way as the members of the Council of Ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislators and the judges, and not the members of the their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, the legislators and the judges and not between the judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter concerning the judiciary and in opposition to the context in which 'consultation' is required. After the observation of Bhagwati, J. in Gupta case that the 'consultation' must be full and effective there is no conceivable reason to hold that such 'consultation' need not be given primary consideration. xxx 196. In the background of the above factual and legal position, the meaning of the word 'consultation' cannot be confined to its ordinary lexical definition. Its contents greatly vary according to the circumstances and context in which the word is used as in our Constitution. xxx 207. No one can deny that the State in the present day has become the major litigant and the superior courts particularly the Supreme Court, have become centres for turbulent controversies, some of which with a flavour of political repercussions and the Courts have to face tempest and storm because their vitality is a national imperative. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitrators. The answer would be in the negative. If such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto. The statement of objects and reasons is also being extracted hereunder: Statement of Objects and Reasons xxx 2. The Supreme Court in the matter of the 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 Clause (2) of Article 124 and Clause (1) of Article 217 of the Constitution with respect to the meaning of consultation as concurrence . Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and is being followed for appointment. 3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointments Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of a collegium of Judges, representing its collegiate wisdom. It was submitted, that the Chief Justice of India, as an individual, as well as, Chief Justices of High Courts, as individuals, could not be considered as persona designate. It was pointed out, that the judgment rendered in the Second Judges case, had not become irrelevant. This Court, in the above judgment, provided for the preservation of the independence of the judiciary . The aforesaid judgment, as also, the later judgment in the Third Judges case, re-established and reaffirmed, that the Chief Justice of India, represented through a body of Judges, had primacy. According to learned Counsel, the individual Chief Justice of India, could not and did not, represent the collective opinion of the Judges. It was asserted, that the Constitution (99th Amendment) Act, and the NJAC Act, had done away with, the responsibility vested with the Chief Justice of India, represented through a collegium of Judges (Under Articles 124 and 217-as originally enacted). Accordingly, it was submitted, that till the system adopted for selection and appointment of Judges, established and affirmed, the unimpeachable primacy of the judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e portfolio dealing with justice. 148. This decision was reiterated in Union of India v. Jyoti Prakash Mitter (1971) 1 SCC 396. Although an argument was made that the President was guided in that case by the Minister of Home Affairs and by the Prime Minister, it was repelled by the Court which, on the facts, found the decision to be that of the President himself and not of the Prime Minister or the Home Minister. 149. In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article-making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not absolute, inasmuch as, Article 245 authorized the Parliament, to legislate on subjects falling within its realm, subject to the substantive provisions contained in the Constitution. For the above reason, it was asserted, that the activities of the NJAC could not be made subject to, or subservient to, the power vested in the Parliament, under entries 77 and 78. 29. It was contended by Mr. Ram Jethmalani, learned Senior Advocate, that there was sufficient circumstantial evidence to demonstrate, that the present political establishment felt, that the judiciary was an obstacle for the implementation of its policies. It was contended, that the entire effort, was to subdue the judiciary, by inducting into the selection process, those who could be politically influenced. In order to project, the concerted effort of the political dispensation, in subverting the independence of the judiciary , learned Counsel, in the first instance, pointed out, that the first Bill to constitute a National Judicial Commission [the Constitution (67th Amendment) Bill, 1990] was introduced in the Lok Sabha on 18.5.1990. The statement of its Objects and Reasons , which was relied upon, is extracted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Judges case. It was submitted, that the necessity to give effect to the proposed Constitution (67th Amendment) Bill, 1990, stood obviated when this Court rendered its judgment in the Second Judges case. All this, according to learned Counsel for the Petitioners, has been forgotten and ignored. 30. Historically, the next stage, was when the Constitution (98th Amendment) Bill, 2003 was placed before the Parliament for its consideration. In the above Bill, the executive participation in the process of selection and appointment of Judges to the higher judiciary, was introduced by making the Union Minister of Law and Justice, an ex officio Member of the Commission. Two eminent citizens (either eminent jurists, or eminent lawyers, or legal academicians of high repute) would also be Members of the Commission. One of them was to be appointed by the President in consultation with the Chief Justice of India, and the other, in consultation with the Prime Minister. Yet another effort was made (by the previous U.P.A. Government), in the same direction, through the Constitution (120th Amendment) Bill, 2013, on similar lines as the 2003 Bill. It was sought to be pointed out, that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is done, I, again, need not speak. But, Sir, since I don't expect both these reasonable suggestions to be accepted, I intend to speak and speak my mind. xxx Kapil is my great friend and is one of the Ministers in the Government whose work as the Law Minister I keep supervising and I am happy the manner in which he conducts his Ministry. But, Sir, I must declare today that my conscience, understanding and my duty towards the people of this country, which I regard as my paramount obligation, do not permit me to submit to this kind of legislation. Both the Bills, according to me are evil. The evil, first of all, consists in the misleading Statement of Objects-and-Reasons. You ought to have said with complete honesty that what you are trying to demolish is the Collegium System, which seems to be the object, and which is apparent to anyone. Some of the persons who have spoken have spoken on the assumption that that is the purpose of this particular piece of legislation. Sir, the first point that I propose to make is that the 1993 judgment of Nine Judges is a judgment based upon the discovery of the basic feature of the Constitution, and upon devising a system to sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranslated). That is the tragedy of our country. Sir, the intellectuals of this country have continuously failed, and I regret to say that they are failing even today. Collegium may be the creation of the Judiciary, it is the creation of judicial interpretation, again, of the Constitution, but whatever be the faults of the Collegium, the Collegium today represents some system which is consistent with the basic features of the Constitution, namely, the supremacy of the Judiciary and its freedom from any influence of the Executive in the appointment process. xxx Sir, I am speaking for those who are not irrevocably committed to voting for this amendment. There are some people who must have kept their minds still open. I am appealing to those minds today only. Those who are irrevocably committed are committed to the destruction of Indian democracy. Sir, the key passage in the judgment of the Supreme Court of 1993 is the passage which I wish to share with the House. The question of primacy to the opinion of the Chief Justice of India in the matters of appointment and transfer and their justifiability should be considered in the context of the independence of the Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointments Commission. It lays down that the Judicial Appointments Commission will have these functions. It leaves at that. But, kindly see that after the first sentence, every thing is left to a Parliamentary will. After saying that there will be a Judicial Appointments Commission, every thing will be left, according to the second part of 124(a), to a parliamentary legislation which is capable of being removed if the ruling party has one Member majority in both Houses of Parliament. Not only that, I understand that Parliament is not likely to do it, but it can do it and by a majority of one in both Houses, you can demolish the whole thing and substitute it with a Judicial Commission which will consist of only the Law Minister. xxx So, Sir, my first objection is that this Bill is a Bill which is intended to deal with the basic structure of the Constitution and, therefore, this Bill is void. (Time-bell) Second, if a Constitutional Amendment is not good enough for this purpose, surely, an ordinary piece of legislation cannot do it, which ordinary piece of legislation can be removed only by a majority of one in each House. It can be removed like the 30th July Food Security Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that the rule of law , the separation of powers and the independence of the judiciary , were salient and basic features of the Constitution. And that, the same could not be abrogated, through a constitutional amendment. And further that, the Supreme Court had expressly provided for the primacy of the Chief Justice of India, based on a decision of a collegium of Judges, with reference to the appointments and transfers of Judges of the higher judiciary. 33. It was submitted by Mr. Ram Jethmalani, that the impugned constitutional amendment, so as to introduce Article 124A, ought to be described as a fraud on the Constitution itself. It was pointed out, that the first effort of introducing Article 124A was made by the previous Government, through the Constitution (120th Amendment) Bill, 2013. In the above Bill, Article 124A alone (as against Articles 124A to 124C, presently enacted) was introduced. It was submitted, that the Rajya Sabha passed the above Bill on 5.9.2013, when 131 Members of the Rajya Sabha supported the Bill (with only one Member opposing it). Learned Counsel submitted, that he alone had opposed the Bill. It was asserted, that the above fraud was sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the Union Minister had been assigned only one vote, it was submitted, that he could paralyse the whole system, on the basis of the authority he exercised. To drive home his contention, learned Counsel made a reference to the introduction of the book Choosing Hammurabi-Debates on Judicial Appointments , edited by Santosh Paul. In the introduction to the book, the thoughts of H.L. Mencken are expressed in the following words: But when politicians talk thus, or act thus without talking, it is precisely the time to watch them most carefully. Their usual plan is to invade the constitution stealthily, and then wait to see what happens. If nothing happens they go on more boldly; if there is a protest they reply hotly that the constitution is worn out and absurd, and that progress is impossible under the dead hand. This is the time to watch them especially. They are up to no good to anyone save themselves. They are trying to whittle away the common rights of the rest of us. Their one and only object, now and always, is to get more power in to their hands that it may be used freely for their advantage, and to the damage of everyone else. Beware of all politicians at all times, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iking down of the provision. It was emphasized, that the determinative role assigned to the two eminent persons , included amongst the six-Member NJAC, was so important, that the same could not be left to the imagination of the nominating committee, which comprised of just men ...with all the failings, all the sentiments and all prejudices which we as common people have... (relying on the words of Dr. B.R. Ambedkar). 37. Referring to the second proviso Under Section 5(2), as well as, Section 6(6) of the NJAC Act, it was submitted, that a recommendation for appointment of a Judge, could not be carried out, if the two eminent persons did not accede to the same. In case they choose to disagree with the other Members of the NJAC, the proposed recommendation could not be given effect to, even though the other four Members of the NJAC including all the three representatives of the Supreme Court approved of the same. It was pointed out, that the two eminent persons , therefore would have a decisive say. It was further submitted, that the impact of the determination of the two eminent persons , would be such, as would negate the primacy hitherto before vested in the Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to function with reference to the provisions of the NJAC Act, left no room for any doubt, that the same was in clear violation of the law laid down by this Court, and therefore, liable to be set aside. 38. Learned Counsel on the above facts, contested not only the constitutional validity of Clauses (c) and (d) of Article 124A(1), but also emphatically assailed the first proviso Under Article 124A(1)(d), which postulates, that one of the eminent persons should belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities or Women. It was submitted, that these sort of populistic measures, ought not to be thought of, while examining a matter as important as the higher judiciary. It was submitted, that it was not understandable, what the choice of including a person from one of the aforesaid categories was aimed at. In the opinion of learned Counsel, the above proviso was farcical, and therefore, totally unacceptable. While members of a particular community may be relevant for protecting the interest of their community, yet it could not be conceived, why such a measure should be adopted, for such an important constitutional responsibility. In the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution (99th Amendment) Act (as also, the NJAC Act) would not reveal, how the Members of the NJAC were to be made responsible. It was further submitted, that the statement of Objects and Reasons also indicate, that the manner of appointment of Judges to the higher judiciary, would introduce transparency in the selection process. It was contended, that the enactments under reference, amounted to commission of a fraud by Parliament, on the people of the country. As it was not possible to understand, how and who was to be made accountable-the executive,-the eminent persons ,-the judiciary itself. It was accordingly sought to be asserted, that the Parliament seemed to be asserting one thing, while it was doing something else. Learned Counsel also placed reliance on Shreya Singhal v. Union of India 2015 (4) SCALE 1, wherefrom the following observations were brought to our notice: 50. Counsel for the Petitioners argued that the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being ultra vires the provisions of the Constitution. 42. Learned Counsel had adopted a stance, which was different from the one adopted by others. The submissions advanced by the learned senior Counsel, were premised on the fact, that under the constitutional power of judicial review, the higher judiciary not only enforced fundamental rights, but also restricted the legislature and the executive, within the confines of their jurisdiction(s). It was pointed out, that it was the above power, which was the source of tension and friction between the judiciary on the one hand, and the two other pillars of governance i.e., the legislature and the executive, on the other. This friction, it was pointed out, was caused on account of the fact, that while discharging its responsibility of judicial review, executive backed actions of the legislature, were sometimes invalidated, resulting in the belief, that the judiciary was influencing and dominating the other two pillars of governance. Illustratively, it was pointed out, that in the beginning of independent governance of the country, judicial review led to the setting aside of legislations, pertaining to land reforms and zamindari abolit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... savananda Bharati case: (1973) 4 SCC 225, wherein the Supreme Court by a majority of 7:6, had propounded the doctrine of basic structure of the Constitution, which limited the amending power of the Parliament, Under Article 368. As a sequel to the above judgments, the executive attempted to intimidate the judiciary, by the first supersession in the Supreme Court on 25.4.1973. Thereafter, internal emergency was declared on 25.06.1975, which continued till 21.03.1977. It was submitted, that during the emergency, by way of constitutional amendment(s), the power of judicial review vested in the higher judiciary, was sought to be undermined. It was submitted, that the intrusion during the emergency came to be remedied when the Janata Party came to power on 22.03.1977, through the 43rd and 44th Constitutional Amendments, which restored judicial review, to the original position provided for by the Constituent Assembly. 46. It was submitted, that in the recent past also, the exercise of the power of judicial review had been inconvenient for the political-executive, as it resulted in exposing a series of scams. In this behalf, reference was made to two judgments rendered by this Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elders. Together they blend to produce gross abuse geared to personal aggrandizement, suppression of exposure and a host of other horrendous, yet hidden, crimes by the summit executives, pro tem, the para-political manipulators and the abetting bureaucrats. And the rule of law hangs limp or barks but never bites. An anonymous poet sardonically projected the social dimension of this systemic deficiency: The law locks up both man and woman Who steals the goose from off the common, But lets the greater felon loose Who steals the common from the goose. 107. The impact of 'summit' crimes in the Third World setting is more terrible than the Watergate syndrome as perceptive social scientists have unmasked. Corruption and repression-cousins in such situations-hijack developmental processes. And, in the long run, lagging national progress means ebbing people's confidence in constitutional means to social justice. And so, to track down and give short shrift to these heavy-weight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion. To pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ante-date if the 'emergency' was the critical criterion? xxx 117. Let us take a close look at the 'Emergency', the vices it bred and the nexus they have to speedier justice, substantial enough to qualify for reasonable sub-classification. Information flowing from the proceedings and reports of a bunch of high-powered judicial commissions shows that during that hushed spell, many suffered shocking treatment. In the words of the Preamble, civil liberties were withdrawn to a great extent, important fundamental rights of the people were suspended, strict censorship on the press was placed and judicial powers were curtailed to a large extent. xxx 128. Let us view the problem slightly differently. Even if liberty had not been curtailed, press not gagged or writ jurisdiction not cut down, criminal trials and appeals and revisions would have taken their own interminable delays. It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency. Such crimes were exposed by judicial commissions before, involving Chief Ministers and Cabinet Ministers at both levels and no criminal action followed except now and that of a sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed him as the Chief Justice of India. And that, an outsider was being brought to the Supreme Court, as its Chief Justice. His speech highlighted the fact, that all except one sitting Judge of the Supreme Court had agreed to resign in the event of supersession of J.C. Shah, J.. He had also pointed out, in his speech, that if the decision was taken by the executive, even a day before his retirement, he too would join his colleagues in resigning from his position as the Chief Justice of India. It was accordingly submitted, that the constitutional convention, that the senior most Judge of the Supreme Court would be appointed as the Chief Justice of India, was truly and faithfully recognized as an impregnable convention. To support the aforesaid contention, it was also pointed out, that even in situations wherein the senior most puisne Judge would have a very short tenure, the convention had remained unbroken, despite the inefficacy of making such appointments. In this behalf, the Court's attention was drawn to the fact that J.C. Shah, CJ. (had a tenure of 35 days), K.N. Singh, CJ. (had a tenure of 18 days) and S. Rajendra Babu, CJ. (had a tenure of 29 days). 50. It was also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the day following the Supreme Court delivered the judgment in the Kesavananda Bharati case (1973) 4 SCC 225. Secondly, the supersession took place during the internal emergency declared by Prime Minister, Indira Gandhi. At that juncture, M.H. Beg, J., was appointed as Chief Justice of India on 29.1.1977, by superseding his senior H.R. Khanna, J.. It was contended, that the aforesaid two instances should be considered as aberrations, in the convention pertaining to appointment of Chief Justice of India. 51. Mr. Arvind P. Datar also assailed the constitutional validity of Article 124C, introduced by the Constitution (99th Amendment) Act. It was submitted, that the Parliament was delegated with the authority to regulate the procedure for the appointment of the Chief Justice of India and other Judges of the Supreme Court, and the Chief Justices and other Judges of the High Courts . And the NJAC was empowered to lay down, by Regulation, the procedure of discharging its own functions, the manner of selection of persons for appointment, and such other matters, as may be considered necessary by it . It was the contention of the learned Counsel, that the delegation of power contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable, so long as it did not violate the basic structure of the Constitution. It was emphasized, that one of the recognized features of the basic structure of the Constitution was, the independence of the judiciary . The procedure which the NJAC could adopt for discharging its functions, and the procedure it was liable to follow while holding its meetings, and the ambit and scope with reference to which the NJAC was authorized to frame its Regulations, had to be left to the exclusive independent will of an independent NJAC. That, according to learned Counsel, would have ensured the independence of the NJAC . It was accordingly contended, that Article 124C breached the independence of the judiciary , and also, undermined the independence of the NJAC. 54. The next contention advanced at the hands of the learned Counsel, was with reference to Clause (2) of Article 124A, whereby judicial review was barred, with reference to actions or proceedings of the NJAC, on the ground of the existence of a vacancy or defect in the constitution of the NJAC. Learned Counsel then invited this Court's attention to the exclusion of the power of judicial review, contemplated Under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and an abortive attempt to make the constitutional amendment indicated therein. Reliance was also placed on the following conclusions recorded by this Court in Dr. Kashinath G. Jalmi v. The Speaker AIR 1993 SC 1873. 43. In Kihoto Hollohan there was no difference between the majority and minority opinions on the nature of finality attaching to the Speaker's order of disqualification made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the non-compliance of the proviso to Clause 2 of Article 368 of the Constitution, by which judicial review was sought to be excluded. The main difference in the two opinions was, that according to the majority opinion this defect resulted in the constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein, while according to the minority the entire exercise of constitutional amendment was futile and an abortive attempt to amend the constitution, since Para 7 was not severable. According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were, therefore, nullity and liable to be ignored. According to the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Based on the aforesaid provision, it was contended, that in spite of having received the assent of the President on 31.12.2014, the Constitution (99th Amendment) Act, would not come into force automatically. And that, the same would come into force in terms of the mandate contained in Section 1(2),- ... on such date as the Central Government may, by notification in the Official Gazette, appoint. It was submitted, that the Central Government notified the Constitution (99th Amendment) Act, in the Gazette of India Extraordinary on 13.4.2015. Based on the aforesaid factual position, the Constitution (99th Amendment) Act, came into force with effect from 13.4.2015. 56. In conjunction with the factual position noticed in the foregoing paragraph, learned Counsel pointed out, that the NJAC Bill, was also introduced in the Lok Sabha on 11.8.2014. The Lok Sabha passed the Bill on 13.8.2014, whereupon, it was passed by the Rajya Sabha on 14.8.2014. Thereafter, the NJAC Bill received the assent of the President on 31.12.2014, and became the NJAC Act. It was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de what to do, can we request him to throw light on what Mr. Yechury has said? (Page-490) Mr. K. Parasaran (Nominated Member) then gave his views saying: Shri K. Parasarn (contd.)...Before ratification, if you take up the Bill and pass the Bill, today, it will be unconstitutional and ultra vires. Because the power to make enactment, as we see, is only in the Articles. The Article 368 gives the power to .... xxx Mr. Deputy Chairman: What I want to know is this. You have mentioned that there are two provisions. Number one, if it is amended in a particular way, it can directly go to the President. If the amendment involves Chapter IV, part 5, or Chapter V, etc., etc., it has to be ratified by half in the Assemblies. Okay. I accept both of them. But do any of these objections object us from considering this Bill now? That is my question. Shri K. Parasaran: No. We don't have the legislative competence. (Page-492) The Minister of Law and Justice then said: .....This Bill will become effective after ratification but the separate Bill is for guidance to the Legislatures as to how the entire structure has come into existence. Therefore, it is not unconsti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied) (Page-496). 57. In other words, it was the contention of the learned Counsel, that the NJAC Bill was passed by both Houses of Parliament, when Parliament had no power, authority or jurisdiction to consider such a Bill, in the teeth of Articles 124(2) and 217(1), as enacted in the original Constitution. It was submitted, that the passing of the said Bill, was in itself unconstitutional, ultra vires and void, because the amended provisions contained in the Constitution (99th Amendment) Act, had not come into play. It was submitted, that the passing by the Lok Sabha, as also, by the Rajya Sabha of the 121st Constitution Amendment Bill on 13/14.8.2014, and the ratification thereof by 16 State Legislatures, as also, the assent given thereto by the President on 31.12.2014, would not bestow validity on the NJAC Act. This, for the simple reason, that the Constitution (99th Amendment) Act, was brought into force only on 13.4.2015. In the above view of the matter, according to the learned Counsel, till 13.4.2015, Articles 124(2) and 217(1) of the Constitution of India were liable to be read, as they were originally enacted. In the aforesaid context, it was submitted, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions may be brought into force. The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution. For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill, one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment. For determining the date with effect from which the Constitution, as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government Under Section 1(2) of the Amendment Act. 47. The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come into force on a future date. Indeed, no objection can be taken to the constituent body itself appointing a specific future date with effect from which the Amendment Act will come into force; and if that be so, different dates can be appointed by it for bringing into force differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the provisions of the Constitution, on a subject within the realm of the legislature concerned, cannot be assailed on the ground that it violates the basic structure of the Constitution. For the present controversy, the Respondents had placed reliance on Articles 245 and 246 of the Constitution, as also, on entries 77 to 79, 82 to 84, 95 and 97 of the Union List of the Seventh Schedule, and on entries 11-A and 46 of the Concurrent List of the Seventh Schedule. Based thereon it was asserted, that Parliament was competent to enact the NTT Act. For examining the instant contention, let us presume it is so. Having accepted the above, our consideration is as follows. The Constitution regulates the manner of governance in substantially minute detail. It is the fountainhead distributing power, for such governance. The Constitution vests the power of legislation at the Centre, with the Lok Sabha and the Rajya Sabha, and in the States with the State Legislative Assemblies (and in some States, the State Legislative Councils, as well). The instant legislative power is regulated by Part XI of the Constitution. The submission advanced at the hands of the learned Counsel for the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him while assailing the constitutional validity of Articles 124A, 124B and 124C. For reasons of brevity, the aforestated submissions noticed with reference to individual provisions of the NJAC Act are not being repeated again. 61. A challenge was also raised, to the different provisions of the NJAC Act. First and foremost, a challenge was raised to the manner of selection of the Chief Justice of India. Section 5(1) of the NJAC Act, it was submitted, provides that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief Justice of India, subject to the condition, that he was considered fit to hold the office. It was contended, that the procedure to regulate the appointment of the Chief Justice of India, was to be determined by Parliament, by law Under Article 124C. It was contended, that the term fit , expressed in Section 5 of the NJAC Act, had not been elaborately described. And as such, fitness would have to be determined on the subjective satisfaction of the Members of the NJAC. It was submitted, that even though the learned Attorney General had expressed, during the course of hearing, that fitness meant ...mental and physical fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emaining tenure of at least two years. Such an enactment would have a devastating effect, even though it would appear to be innocuously legitimate. It was contended, that out of the 41 Chief Justices of India appointed till date, only 12 Chief Justices of India, had a tenure of more than two years. Such action, at the hands of the Parliament, was bound to cause discontentment to those, who had a legitimate expectation to hold the office of Chief Justice of India. It was submitted, that similar instances can be multiplied with dimensional alterations by prescribing different parameters. It was submitted, that the Parliament should never be allowed the right to create uncertainty, in the matter of selection and appointment of the Chief Justice of India, because the office of the Chief Justice of India was pivotal, as it shouldered extremely serious and onerous responsibilities. The exercise of the above authority, it was pointed out, could/would seriously affect the independence of the judiciary . In the above context, reference was also made, to the opinion expressed by renowned persons, having vast experience in the judicial institution, effectively bringing out the veracity of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court. It was submitted, that the NJAC Act, especially in terms of Section 5(2), had travelled far beyond the jurisdictional parameters contemplated Under Article 124C. 64. It was also contended, that while recommending names for appointment of a Judge to the Supreme Court, seniority in the cadre of Judges, was liable to be taken into consideration, in addition to ability and merit. It was submitted, that the instant mandate contained in the first proviso Under Section 5(2) of the NJAC Act, clearly breached the federal structure of governance, which undoubtedly required regional representation in the Supreme Court. Since the federal structure contemplated in the Constitution was also one of the basic structures envisioned by the framers of the Constitution, the same could not have been overlooked. 65. Besides the above, the Court's attention was invited to the second proviso, Under Section 5(2) of the NJAC Act, which mandates that the NJAC would not make a favourable recommendation, if any two Members thereof, opposed the candidature of an individual. It was contended, that placing the power of veto, in the hands of any two Members of the NJAC, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, it vitiated the provision itself. III. RESPONDENTS' RESPONSE, ON MERITS: 67. The learned Attorney General commenced his response on merits by asserting, that there was no provision in the Constitution of India, either when it was originally drafted, or at any stage thereafter, which contemplated, that Judges would appoint Judges to the higher judiciary. It was accordingly asserted, that the appointment of Judges by Judges was foreign to the provisions of the Constitution. It was pointed out, that there were certain political upheavals, which had undermined the independence of the judiciary , including executive overreach, in the matter of appointment and transfer of Judges of the higher judiciary, starting with supersession of senior Judges of the Supreme Court in 1973, followed by, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and thereafter, the second supersession of a senior Judge of the Supreme Court in 1977. It was acknowledged, that there was continuous interference by the executive, in the matter of appointment of Judges to the higher judiciary during the 1980's. Despite thereof, whilst adjudicating upon the controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced when the present Government was in power. In 2003 itself, a National Commission was set up to review the working of the Constitution, followed by the Second Administrative Reforms Commission in 2007. Interspersed with the aforesaid events, were a number of Law Commission's Reports. The intention of the Parliament, since the introduction of the Bill in 1990, it was submitted, was aimed at setting up a National Judicial Commission, for appointment and transfer of Judges of the higher judiciary. It was pointed out, that no positive achievement was made in the above direction, for well over two decades. Mr. Justice M.N. Venkatachaliah, who headed the National Commission to review the working of the Constitution, had also recommended a five-Member National Judicial Commission, whereby, a wide consultative process was sought to be introduced, in the selection and appointment of Judges. It was submitted, that all along recommendations were made, for a participatory involvement of the executive, as well as the judiciary, in the matter of appointment of Judges to the higher judiciary. It was also pointed out, that the Constitution (98th Amendment) Bill, 2003 proposed a seven-Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this country, by providing for a meaningful process for the selection and appointment of Judges to the higher judiciary. 73. Referring to the decisions rendered by this Court in the Second and Third Judges cases, it was asserted, that the way he saw it, there was only one decipherable difference introduced in the process of selection contemplated through the NJAC. Under the system introduced, the judiciary could not insist on the appointment of an individual. But the judiciary continued to retain the veto power, to stop the appointment of an individual considered unworthy of appointment. According to him, the nomination of a candidate, for appointment to the higher judiciary, under the above judgments, could also not fructify, if any two members of the collegium, expressed an opinion against the nominated candidate. It was pointed out, that the above position had been retained in the impugned provisions. According to the learned Attorney General, the only difference in the impugned provisions was, that the right of the judiciary to insist on the appointment of a nominee, was no longer available to the judiciary. Under the collegium system, a recommendation made for appointm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent constitutional amendment was, whether while making the aforestated constitutional amendment, the Parliament had breached, any of the basic features of the Constitution. 77(i). For demonstrating the validity of the impugned constitutional amendment, reliance in the first instance was placed on the Kesavananda Bharati case (1973) 4 SCC 225. Reference was made to the observations of S.M. Sikri, CJ., to contend, that the extent of the amending power Under Article 368 was duly adverted to. Reading the preamble to the Constitution, it was pointed out, that the fundamental importance expressed therein was, the freedom of the individual, and the inalienability of economic, social and political justice, as also, the importance of the Directive Principles (paragraph 282). In this behalf, it was also submitted, that the fundamental features of the Constitution, as for instance, secularism, democracy and the freedom of the individual would always subsist in a welfare State (paragraph 283). Leading to the conclusion, that even fundamental rights could be amended in public interest, subject to the overriding condition, that the same could not be completely abrogated (paragraph 287). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Constitution, or to alter or change the essential elements of the constitutional structure (paragraph 539). It was pointed out, that it was not proper, to give a narrow meaning to the power vested in the Parliament to amend the Constitution, and at the same time, to give it such a wide meaning, so as to enable the amending body, to change the structure and identity of the Constitution (paragraph 546). With reference to the power of judicial review, it was contended, that there was ample evidence in the Constitution itself, to indicate that a system of checks and balances was provided for, so that none of the pillars of governance would become so predominant, as to disable the others, from exercising and discharging the functions entrusted to them. It was submitted, that judicial review, provided expressly through Articles 32 and 226, was an incident of the aforestated system of checks and balances (paragraph 577). Based on the historical background, the preamble, the entire scheme of the Constitution, and other relevant provisions thereof, including Article 368, it was submitted that it could be inferred, that the supremacy of the Constitution, the republican and democratic fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution (paragraph 744). (iii). Reference was then made to the observations of H.R. Khanna, J. (in the Kesavananda Bharati case (1973) 4 SCC 225). It was pointed out, that from 1950 to 1967 till this Court rendered the judgment in the I.C. Golak Nath case AIR 1967 SC 1643, the accepted position was, that the Parliament had the power to amend Part III of the Constitution, so as to take away or abridge the fundamental rights. Having noticed the fact, that no attempt was made by the Parliament to take away or abridge the fundamental rights, relating to the liberty of a person, and the freedom of expression, it was recorded, that even in future it could not be done. Accordingly, with reference to Article 368, it was sought to be concluded, that the Parliament had the power to amend Part III of the Constitution, as long as the basic structure of the Constitution was retained (paragraph 1421). If the basic structure of the original Constitution was retained, inasmuch as had the original Constitution continued to subsist, even though some of its provisions were changed, the power of amendment would be considered to have been legitimately exercised (paragraph 1430). And there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, the answer rendered was in the negative. It was held, that in exercising the power of judicial review, Courts could not be oblivious of the practical needs of the Government. And that, the power of amendment could be exercised even for trial and error, inasmuch as opportunity had to be allowed for vindicating reasonable belief by experience (paragraph 1535). It was contended, that no generation had a monopoly to wisdom, nor the right to place fetters on future generations, nor to mould the machinery of Government, keeping in mind eternal good. The possibility, that the power of amendment may be abused, furnished no ground for denial of its existence. According to the Attorney General, it was therefore not correct to assume, that if the Parliament was held entitled to amend Part III of the Constitution, it would automatically and necessarily result in abrogation of the fundamental rights. Whilst concluding, that the right to property did not pertain to the basic structure or framework of the Constitution, it was held, that power of amendment Under Article 368 did not include the power to abrogate the Constitution, or to alter the basic structure or framework of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstand the true purport and effect of the term independence of the judiciary . In this behalf, in the first instance, the Court's attention was invited to, the First Judges case, wherein reference was made to the opinion expressed by E.S. Venkataramiah, J. (as he then was), who had taken the view, that it was difficult to hold, that merely because the power of appointment was with the executive, the independence of the judiciary would be compromised. In stating so, it was emphasized, that the true principle was, that after such appointment, the executive should have no scope, to interfere with the work of a Judge (paragraph 1033). Based thereon, it was asserted, that the independence of a Judge would not stand compromised, if after his appointment, the role of the executive, to deal with him, is totally excluded. Reference was then made to the opinion expressed by P.N. Bhagwati, J. (as he then was) (in the same judgment), to the effect, that the concept of independence of the judiciary , was not limited only to independence from executive pressure/influence, but was relatable to many other pressures and prejudices. And in so recording, it was held, that independence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mu and Kashmir 1989 Supp (2) SCC 364, State of Bihar v. Bihar Distillery Limited (1997) 2 SCC 453, and Bhim Singh v. Union of India (2010) 5 SCC 538, it was submitted, that this Court had recognized, that the concept of checks and balances, was inherent in the scheme of the Constitution. And that, even though the legislature, the executive and the judiciary were required to function within their own spheres demarcated through different Articles of the Constitution, yet their attributes could never be in absolute terms. It was submitted, that each wing of governance had to be accountable, and till the principle of accountability was preserved, the principle of separation of powers would not be achievable. It was therefore contended, that the concept of independence of the judiciary , could not be gauged as an absolute end, overlooking the checks and balances, provided for in the scheme of the Constitution. 82. Having so asserted, it was contended, that in the matter of appointment of Judges to the higher judiciary, the most important and significant feature was, that no unworthy or doubtful appointment should go through, even though at times, the candidature of a seemingly goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly contended, that if the right to insist on the appointment of a candidate proposed by the judiciary, was taken away, from the Chief Justice of India (based on a decision of a collegium of Judges), the same would not result, in the emasculation of the basic structure of the Constitution. In other words, the same would not violate the essential and fundamental features of the Constitution, nor in the least, the independence of the judiciary . 84. Based on the above submissions, the learned Attorney General invited the Court's attention to the primary contention advanced by the Petitioners, namely, that even if all the three Judges of the Supreme Court who are now ex officio Members of the NJAC, collectively recommended a nominee, such recommendation could be annulled, by the non-Judge Members of the NJAC. Learned Attorney General submitted, that the above contention was limited to the right to insist on an appointment. And that, the right to insist did not flow from the conclusions recorded in the Second and Third Judges cases. And further, that the same cannot, by itself, be taken as an incident to establish a breach of the independence of the judiciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the field, was very much misunderstood and misused. It was in this context, that I said that the working of the judgment, now, for some time, is raising serious questions, which cannot be called unreasonable. Therefore, some kind of re-think is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise, between the Executive and the Judiciary, both taking part in it. It was therefore contended, that in the changed scenario, this Court ought to have, at its own, introduced measures to negate the accusations leveled against the prevailing system, of appointment of Judges to the higher judiciary. Since no such remedial measures were adopted by the judiciary of its own, the legislature had brought about the Constitution (99th Amendment) Act, supplemented by the NJAC Act, to broad base the process of selection and appointment, of Judges to the higher judiciary, to make it transparent, and to render the participants accountable. 86. Having dealt with the constitutional aspect of the matter, the learned Attorney General invited the Court's attention, to the manner in which judicial appointments were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serted, that the submissions advanced at the hands of the Petitioners, were not acceptable, even with reference to the experience of other countries, governed through a constitutional framework (some of them, of the Westminster Model). 87. It was further asserted, that the absence of the absolute majority of Judges in the NJAC, could not lead to the inference, that the same was violative of the basic structure of the Constitution, so as to conclude, that it would impinge upon the independence of the judiciary . It was asserted, that the representation of the judiciary in the NJAC, was larger than that of the other two organs of the governance, namely, the executive and the legislature. In any case, given the representation of the judiciary in the NJAC, it was fully competent, to stall the appointment of a candidate to the higher judiciary, who was considered by the judicial representatives, as unsuitable. Any two, of the three representatives of the judiciary, were sufficient to veto any appointment supported by others. 88. It was further submitted, that the NJAC was broad based with representatives from the judiciary, the executive and the two eminent persons , would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, by undermining the independence of the judiciary , were liable to be rejected. 91. With reference to the inclusion of two eminent persons , in the six-Member NJAC, it was submitted, that the general public was the key stakeholder, in the adjudicatory process. And accordingly, it was imperative to ensure their participation in the selection/appointment of Judges to the higher judiciary. Their participation, it was submitted, would ensure sufficient diversity, essential for rightful decision making. It was submitted, that in the model of the commission suggested by M.N. Venkatachaliah, CJ., the participation of one eminent person was provided. He was to be nominated by the President, in consultation with the Chief Justice of India. In the 2003 Bill, which was placed before the Parliament, the proposed Judicial Commission was to include one eminent person, to be nominated by the executive. The 2013 Bill, which was drafted by the previous political dispensation-the U.P.A. Government, the Judicial Commission proposed, was to have two eminent persons, to be selected by the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha. The 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Judicial Conduct , and thereupon accepted the world over, as revised at the Round Table Meeting of Chief Justices held at The Hague, in November 2002, it was submitted, that the two eminent persons would be most suited, to assess such matters, with reference to the nominees under consideration. Whilst the primary responsibility of the Members from the judiciary would be principally relatable to, ascertaining the judicial acumen of the candidates concerned, the responsibility of the executive would be, to determine the character and integrity of the candidate, and the inputs, whether the candidate possessed the values, expected of a Judge of the higher judiciary, would be that of eminent persons in the NJAC. It was therefore asserted, that the two eminent persons would be lay persons having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualifications. It was submitted, that the instant broad based composition of the NJAC, was bound to be more suitable, than the prevailing system of appointment of Judges. Relying upon the R. Gandhi case (2010) 11 SCC 1, it was submitted, that it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the executive, to the Chief Justice of India (based on a collective decision, by a collegium of Judges). Despite the above, the Union Minister in charge of Law and Justice, being a representative of the executive, continued to have a role in the selection process, though his involvement was substantially limited, as against the responsibility assigned to the executive Under Articles 124 and 217, as originally enacted. It was pointed out, that by including the Union Minister in charge of Law and Justice, as a Member of the NJAC, the participatory role of the executive, in the matter of selection and appointment of Judges to the higher judiciary, had actually been diminished, as against the original position. Inasmuch as, the executive role in the NJAC, had been reduced to one out of the six Members of the Commission. In the above view of the matter, it was asserted, that it was unreasonable for the Petitioners to grudge, the presence of the Union Minister in charge of Law and Justice, as a Member of the NJAC. 95. Insofar as the inclusion of the Union Minister in the NJAC is concerned, it was submitted, that there could be no escape from the fact, that the Minister in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was submitted, that the above position did not prevail insofar as the higher judiciary was concerned, since the stakeholders before the higher judiciary were diverse. It was, therefore, submitted, that the validity of the NJAC could not be assailed, merely on the ground of presence of the Union Minister, as an ex officio Member of the NJAC. 98. The manner of appointment of Judges to the higher judiciary, through the NJAC, it was asserted, would have two major advantages. It would introduce transparency in the process of selection and appointments of Judges, which had hitherto before, been extremely secretive, with the civil society left wondering about, the standards and the criterion adopted, in determining the suitability of candidates. Secondly, the NJAC would diversify the selection process, which would further lead to accountability in the matter of appointments. It was submitted, that not only the litigating public, or the practicing advocates, but also the civil society, had the right to know. It was pointed out, that insofar as the legislative process was concerned, debates in the Parliament are now in the public domain. The rights of individuals, determined at the han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to any substantial prejudice, are statutorily placed beyond the purview of challenge. It was accordingly asserted, that invalidity on account of a technical irregularity, being excluded from judicial review, the submissions advanced on behalf of the Petitioners, on the constitutional validity of Clause (2) of Article 124A, deserved an outright rejection. 100. It was the contention of the learned Attorney General, that the NJAC did not suffer from the vice of excessive delegation. It was sought to be reiterated, that the power of nomination of eminent persons was securely and rightfully left to the wisdom of the Prime Minister of India, the Chief Justice of India and the Leader of the Opposition in the Parliament. It was submitted, that the parameters expressed in Sections 5 and 6 of the NJAC Act, delineating the criterion for selection, by specifically providing, that ability, merit and suitability would expressly engage the attention of the NJAC, while selecting Judges for appointment to the higher judiciary, clearly laid out the parameters for this selection and appointment process. It was submitted, that the modalities to determine ability, merit and suitability would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts (-two Judges to the Jammu and Kashmir High Court, one Judge to the Punjab and Haryana High Court, one Judge to the Patna High Court, and one Judge to the Calcutta High Court) and three Judges to the Supreme Court. It may be clarified that the objection with reference to the Supreme Court Judges was not related to their suitability, but for the reason that some High Courts were unrepresented in the Supreme Court. We would therefore understand the above position as covering the period from 1993 till date. But it was not his contention, that these elevations had proved to be wrongful. We may only notice, that two of the three Supreme Court Judges referred to, were in due course elevated to the high office of Chief Justice of India. 101. The learned Attorney General vehemently contested the assertion made by the learned Counsel representing the Petitioners, that the power to frame rules and Regulations for the functioning of the NJAC was unguided, inasmuch as, neither the constitutional amendment nor the legislative enactment, provided for any parameters for framing the rules and Regulations, pertaining to the criterion of suitability. In this behalf, it was submitted, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident. Referring to the proviso Under Rule 66, it was acknowledged that the rule read independently, fully justified the submissions of Mr. Fali S. Nariman. It was however pointed out, that it was open to the Parliament to seek a suspension of the above rule Under Rule 388. Rule 388 is also extracted hereunder: 388. Any member may, with the consent of the Speaker, move that any rule may be suspended in its application to a particular motion before the House and if the motion is carried the rule in question shall be suspended for the time being. The learned Attorney General then handed over to us, the proceedings of the Lok Sabha dated 12.8.2014, inter alia, including the Constitution (121st Amendment) Bill, and the NJAC Bill. He invited our attention to the fact, that while moving the motion, the then Union Minister in charge of Law and Justice had sought, and was accorded approval, for the suspension of the proviso to Rule 66 of the Rules of Procedure and Conduct of Business of the Lok Sabha. Relevant extract of the Motion depicting the suspension of Rule 388 is being reproduced hereunder: Motion Under Rule 388 Shri Ravi Shankar Prasad moved the following motion: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en agreed to by both Chambers either without amendment or with such amendments only as may be agreed to by both Chambers. It is common ground that the Hindu Women's Rights to Property Bill was agreed to without amendment by both Chambers of the Indian Legislature, and as soon as it received the Governor-General's assent, it became an Act (Schedule 9, para. 68(2)). Not until then had this or any other Court jurisdiction to determine whether it was a valid piece of legislation or not. It may sometimes become necessary for a Court to inquire into the proceedings of a Legislature, for the purpose of determining whether an Act was or was not validly passed; for example, whether it was in fact passed, as in the case of the Indian Legislature the law requires, by both Chambers of the Legislature before it received the Governor. General's assent. But it does not appear to the Court that the form, content or subject-matter of a bill at the time of its introduction into, or of its consideration by either Chamber of the Legislature is a matter with which a Court of law is concerned. The question whether either Chamber has the right to discuss a bill laid before it is a domestic ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court Under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ Under Article 32 of the Constitution vide Janardan Reddy v. The State of Hyderabad (1951) SCR 344. Based on the aforesaid submissions, it was the vehement contention of the learned Attorney General, that there was no merit in the technical objections raised by the Petitioners while assailing the provisions of the NJAC Act. 103. Mr. K.K. Venugopal, learned Senior Advocate, entered appearance on behalf of the State of Madhya Pradesh. While reiterating a few of the legal submissions canvassed by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, it was pointed out, had not only resulted in reading the term consultation in Articles 124 and 217 as concurrence , but has gone far beyond. It was sought to be asserted, that in the impugned amendment to the Constitution, the intent contained in the original Articles 124 and 217, has been retained. The amended provisions, it was pointed out, have been tilted in favour of the judiciary, and the participatory role, earlier vested in the executive, has been severely diluted. It was submitted, that even though no element of primacy had been conferred on the judiciary by Article 124, as originally enacted, primacy has now been vested in the judiciary, inasmuch as, the NJAC has the largest number of membership from the judicial fraternity. It was highlighted, that the Union Minister in charge of Law and Justice, is the sole executive representative, in the selection process, contemplated under the amended provisions. It was therefore asserted, that it was a far cry, for anyone to advocate, that the role of the judiciary in the manner of appointment of Judges to the higher judiciary having been diluted, had impinged on its independence. 104. It was contended, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. 106. It was also contended, that in case the challenge raised to the impugned constitutional amendment, was to be accepted by this Court, and the legal position declared by this Court, was to be given effect to, the repealed provisions would not stand revived, merely because the amendment/legislation which were being assailed, were held to be unconstitutional. Insofar as the instant aspect of the matter is concerned, learned Solicitor General raised two independent contentions. 107. Firstly, that the issue whether a constitutional amendment once struck down, would revive the original/substituted Article, was a matter which had already been referred to a nine-Judge Constitutional Bench. In order to support the aforesaid contention, and to project the picture in its entirety, reliance was placed on, Property Owners' Association v. State of Maharashtra (1996) 4 SCC 49, Property Owners' Association v. State of Maharashtra (2001) 4 SCC 455, and Property Owners' Association v. State of Maharashtra (2013) 7 SCC 522. It was submitted, that the order passed by this Court, wherein the reference to a nine-Judge Constitution Bench had been made, was a case rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolhapur Canesugar Works Ltd. v. Union of India (2000) 2 SCC 536. It was submitted, that the general rule of construction was, that a repeal through a repealing enactment, would not revive anything repealed thereby. Reliance was also placed on, State of U.P. v. Hirendra Pal Singh (2011) 5 SCC 305, Joint Action Committee of Air Line Pilots' Association of India v. Director General of Civil Aviation (2011) 5 SCC 435, and State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737, to contend, that the settled legal proposition was, whenever an Act was repealed, it must be considered as if it had never existed. It was pointed out, that consequent upon the instant repeal of the earlier provisions, the earlier provisions must be deemed to have been obliterated/abrogated/wiped out, wholly and completely. The instant contention was sought to be summarized by asserting, that if a substituted provision was to be struck down, the question of revival of the original provision (which had been substituted, by the struck down provision) would not arise, as the provision which had been substituted, stood abrogated, and therefore had ceased to exist in the statute itself. It was therefore submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l functionaries, should be trusted, to discharge the responsibility bestowed on them, in the interest of the independence of the judiciary . It was submitted, that if constitutional functionaries, and the eminent persons , could not be trusted, then the constitutional machinery itself would fail. It was pointed out, that this Court had repeatedly described, that the Constitution was organic in character, and it had an inbuilt mechanism for evolving, with the changing times. It was asserted, that the power vested with the Parliament, Under Article 368 to amend the provisions of the Constitution, was a constituent power , authorizing the Parliament to reshape the Constitution, to adapt with the changing environment. It was contended, that the above power vested in the Parliament could be exercised with the sole exception, that the basic structure/features of the Constitution, as enunciated by the Supreme Court in the Kesavananda Bharati case (1973) 4 SCC 225, could not be altered/changed. According to the learned senior Counsel, the Constitution (99th Amendment) Act was an exercise of the aforestated constituent power, and that, the amendment to the Constitution introduced there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to the impugned constitutional amendment, should not be determined by relying on the Second and Third Judges cases, but only on the basis of the plain reading of Articles 124 and 217, in conjunction with, the observations expressed by the Members of the Constituent Assembly while debating on the above provisions. It was submitted, that whilst the Union Minister in charge of Law and Justice, would be in an effective position to provide necessary inputs, with reference to the character and antecedents of the candidate(s) concerned (in view of the governmental machinery available at his command), the two eminent persons would be in a position to participate in the selection process, by representing the general public, and thereby, the selection process would be infused with all around logical inputs, for a wholesome consideration. 116. It was submitted, that since any two Members of the NJAC, were competent to veto the candidature of a nominee, three representatives of the Supreme Court of India, would be clearly in a position to stall the appointment of unsuitable candidates. It was therefore contended, that the legislations enacted by the Parliament, duly ratified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made by Judges themselves. Indicating the defects of the collegium system, it was asserted, that the same lacked transparency, and was not broad based enough. Whilst acknowledging, the view expressed by J.S. Verma, CJ., that the manner of appointment of Judges contemplated by the Second and Third Judges cases was very good, it was submitted, that J.S. Verma, CJ., himself was disillusioned with their implementation, as he felt, that there had been an utter failure on that front. Learned senior Counsel submitted, that the questions that needed to be answered were, whether there was any fundamental illegality in the constitutional amendment? Or, whether the appointment of Judges contemplated through the NJAC violated the basic structure of the Constitution? And, whether the independence of the judiciary stood subverted by the impugned constitutional amendment? It was asserted, that it was wrong to assume, that the manner of appointment of Judges, had any impact on the independence of the judiciary . In this behalf, it was pointed out, that the independence of Judges, did not depend on who appointed them. It was also pointed out, that independence of Judges depended upon their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhyarujina was, that in many countries the executive participation in the matter of appointment of Judges to the higher judiciary, was being brought down. And in some countries it was no longer in the hands of the executive. In this behalf, the clear contention advanced by the learned senior Counsel was, that the world over, the process of appointment of Judges to the higher judiciary was evolving, so as to be vested in Commissions of the nature of the NJAC. And as such, it was wholly unjustified to fault the same, on the ground of independence of the judiciary , when the world over Commissions were found to have been discharging the responsibility satisfactorily. 121. Mr. Tushar Mehta, Additional Solicitor General of India, entered appearance on behalf of the State of Gujarat. He adopted the submissions advanced by the learned Attorney General, as also, Mr. Ranjit Kumar, the learned Solicitor General. It was his submission, that the system innovated by this Court for appointment of Judges to the higher judiciary, comprising of the Chief Justice and his collegium of Judges, was a judicial innovation. It was pointed out, that since 1993 when the above system came into existence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na, who represented the State of Maharashtra, while advancing submission about the identity of those who could be nominated as eminent persons to the NJAC. It was submitted, by placing reliance on Municipal Committee, Amritsar v. State of Punjab (1969) 1 SCC 475, K.A. Abbas v. Union of India (1970) 2 SCC 780, and the A.K. Roy case (1982) 1 SCC 271, that similar submissions advanced before this Court, with reference to vagueness and uncertainty of law, were consistently rejected by this Court. According to learned Counsel, with reference to the alleged vagueness in the term eminent persons , in case the nomination of an individual was assailed, a court of competent jurisdiction would construe it, as far as may be, in accordance with the intention of the legislature. It was asserted, that it could not be assumed, that there was a political danger, that if two wrong persons were nominated as eminent persons to the NJAC, they would be able to tilt the balance against the judicial component of the NJAC. It was submitted, that the appointment of the two eminent persons was in the safe hands, of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officio Member of the NJAC, it was submitted, that the mere participation of one executive representative, would not make the process incompatible, with the concept of independence of the judiciary . In this behalf, emphatic reliance was placed on the observations of E.S. Venkataramiah, J., from two paragraphs of the First Judges case, which are being extracted hereunder: 1033. As a part of this very contention it is urged that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment. It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge. 1038. The foregoing gives a fairly reliable picture of the English system of appointments of Judges. It is thus seen that in England the Judges are appointed by the Executive. Nevertheless, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judiciary , the question of manner of appointment was far less important, than the question of removal from the position of Judge. Adverting to the manner of removal of Judges of the higher judiciary, in accordance with the provisions referred to hereinabove, it was asserted, that in the matter of removal of a Judge from the higher judiciary, there was no judicial participation. It was solely the prerogative of the legislature. That being so, it was contended, that the submissions advanced at the behest of the Petitioners, that primacy in the matter of appointment of Judges, should be vested in the judiciary, was nothing but a fallacy. 124. The second contention advanced by learned senior Counsel was, that it should not be assumed as if the NJAC, would take away the power of appointment of Judges to the higher judiciary, from the judiciary. It was submitted, that three of the six Members of the NJAC belonged to the judiciary, and that, one of them, namely, the Chief Justice of India was to preside over the proceedings of the NJAC, as its Chairperson. Thus viewed, it was submitted, that it was wholly misconceived on the part of the Petitioners to contend, that the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... postulated through the NJAC, would interfere with independence of Judges . In this behalf, it was firstly asserted, that neither the Second nor the Third Judges case had concluded, that the manner of appointment of Judges would constitute the basic structure of the Constitution. Nor that, the manner of appointment of Judges to the higher judiciary as postulated in the Second and Third Judges cases, if breached, would violate the basic structure of the Constitution. It was submitted, that the judgments rendered in the Second and Third Judges cases merely interpreted the law, as it then existed. It was asserted, that the above judgments did not delve into the question, whether any factor(s) or feature(s) considered, were components of the basic structure of the Constitution. 126. Learned senior Counsel, also placed reliance on the manner of appointment of Judges in the United States of America, Australia, New Zealand, Canada, and Japan to contend, that in all these countries Judges appointed to the higher judiciary, were discharging their responsibilities independently, and as such, there was no reason or justification for this Court to infer, if the manner of appointment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for a far better method for selection and appointment of Judges to the higher judiciary, than the procedure contemplated under the collegium system . It was submitted, that whilst the NJAC did not exclude the role of the judiciary, it included two eminent persons with one executive nominee, namely, the Union Minister in charge of Law and Justice, as Members of the NJAC. Since the role of the executive/Government in the NJAC was minimal, it was preposterous to assume, that the executive would ever be able to have its way, in the matter of appointment of Judges to the higher judiciary. It was submitted, that the NJAC would fulfill the objective of transparency, in the matter of appointment of Judges, and at the same time, would make the selection process broad based. While concluding his submissions, it was also suggested by the learned Counsel, that the NJAC should be allowed to operate for some time, so as to be tested, before being scrapped at its very inception. And that, it would be improper to negate the process even before the experiment had begun. 129. Mr. Dushyant A. Dave, Senior Advocate and President of the Supreme Court Bar Association, submitted that the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to amend the Constitution, had been described as a constituent power , i.e., a power similar to the one which came to be vested in the Constituent Assembly, for drafting the Constitution. It was submitted, that no judgment could negate or diminish the constituent power vested with the Parliament, Under Article 368. Having highlighted the aforesaid factual position, learned senior Counsel advanced passionate submissions with reference to various appointments made, on the basis of the procedure postulated in the Second and Third Judges cases. Reference was pointedly made to the appointment of a particular Judge to this Court as well. It was pointed out, that the concerned Judge had decided a matter, by taking seisin of the same, even though it was not posted for hearing before him. Thereafter, even though a review petition was filed to correct the anomaly, the same was dismissed by the concerned Judge. While projecting his concern with reference to the appointment of Judges to the higher judiciary under the collegium system, learned senior Counsel emphatically pointed out, that the procedure in vogue before the impugned constitutional amendment, could be described as a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , should be tried and tested, and in case, certain parameters had to be provided for, to ensure its righteous functioning to achieve the best results, it was always open to this Court to provide such guidelines. V. THE DEBATE AND THE DELIBERATION: I. 133. The Union Government, as also, the participating State Governments, were all unanimous in their ventilation, that the impugned constitutional amendment, had been passed unanimously by both the Lok Sabha and the Rajya Sabha, wherein parliamentarians from all political parties had spoken in one voice. The Lok Sabha had passed the Bill with 367 Members voting in favour of the Bill, and no one against it (the Members from the AIADMK-37 in all, had however abstained from voting). The Rajya Sabha passed the Bill with 179 Members voting in favour of the Bill, and one of its Members-Ram Jethmalani, abstaining. It was submitted, that on account of the special procedure prescribed under the proviso to Article 368(2), the Bill was ratified in no time by half the State Legislatures. Mr. Tushar Mehta, learned Additional Solicitor General of India, had informed the Court, that as many as twenty-eight State Assemblies, had eventuall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 31. Article 31C also provided, that a legislative enactment containing such a declaration , namely, that it was for giving effect to the above policy of the State, would not be called in question on the ground, that it did not factually gave effect to such policy. It was pointed out, that this Court in the Kesavananda Bharati case (1973) 4 SCC 225, had overruled the judgment in the I.C. Golak Nath case AIR 1967 SC 1643. This Curt, while holding as unconstitutional the part of Article 31C, which denied judicial review, on the basis of the declaration referred to above, also held, that the right of judicial review was a part of the basic structure of the Constitution, and its denial would result in the violation of the basic structure of the Constitution. 136. Proceeding further, it was submitted, that on 12.6.1975, the election of Indira Gandhi to the Lok Sabha was set aside by the Allahabad High Court. That decision was assailed before the Supreme Court. Pending the appeal, the Parliament passed the Constitution (39th Amendment) Act, 1975. By the above amendment, election to the Parliament, of the Prime Minister and the Speaker could not be assailed, nor could the ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um. The amendment added a proviso to Article 368(2) postulating, that a law compromising with the independence of the judiciary would require ratification by one half of the States, and thereupon, would become unassailable, if adopted by a simple majority vote in a referendum. Through its aforesaid action, the Government of the day, revealed its intention to compromise even the independence of the judiciary . Though the above Bill was passed by an overwhelming majority in the Lok Sabha, it could not muster the two-thirds majority required in the Rajya Sabha. It was pointed out, that the propounder of the Bill was the then Janata Party Government, and not the Congress Party Government (which was responsible for the emergency, and the earlier constitutional amendments). It was therefore asserted, that it should not surprise anyone, if all political parties had spoken in one voice, because all political parties were united in their resolve, to overawe and subjugate the judiciary. 138. It was submitted, that the intention of the legislature and the executive, irrespective of the party in power, has been to invade into the independence of the judiciary . It was further submitted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out, that the same was put in place by a decision rendered by a nine-Judge Bench, in the Second Judges case, through which the independence of the judiciary was cemented and strengthened. This could be achieved, by vesting primacy with the judiciary, in the matter of selection and appointment of Judges to the higher judiciary. It was further pointed out, that the collegium system has been under criticism, on account of lack of transparency. It was submitted, that taking advantage of the above criticism, political parties across the political spectrum, have been condemning and denouncing the collegium system . Yet again, it was pointed out, that the Parliament in its effort to build inroads into the judicial system, had enacted the impugned constitutional amendment, for interfering with the judicial process. This oblique motive, it was asserted, could not be described as the will of the people, or the will of the nation. 141. In comparison, while making a reference to the impugned constitutional amendment and the NJAC Act, it was equally seriously contended, that the constitutional amendment compromised the independence of the judiciary , by negating the primacy of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed unanimously. What is important, is to keep in mind, that there are declared limitations, on the amending power conferred on the Parliament, which cannot be breached. 144. An ordinary legislation enacted by the Parliament with reference to subjects contained in the Union List or the Concurrent List, and likewise, ordinary legislation enacted by State Legislatures on subjects contained in the State List and the Concurrent List, in a sense of understanding noticed above, could be treated as enactments made in consonance with the will of the people, by lay persons not conversant with the legal niceties of the issue. Herein also, there are declared limitations on the power of legislations, which cannot be violated. 145. In almost all challenges, raised on the ground of violation of the basic structure to constitutional amendments made Under Article 368, and more particularly, those requiring the compliance of the special and more rigorous procedure expressed in the proviso Under Article 368(2), the repeated assertion advanced at the hands of the Union, has been the same. It has been the contention of the Union of India, that an amendment to the Constitution, passed by followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable, through a process of judicial review. II. 147. It was the submission of the learned Attorney General, that the basic features/basic structure of the Constitution, should only be gathered from a plain reading of the provision(s) of the Constitution, as it/they was/were originally enacted. In this behalf, it was acknowledged by the learned Counsel representing the Petitioners, that the scope and extent of the basic features/basic structure of the Constitution, was to be ascertained only from the provisions of the Constitution, as originally enacted, and additionally, from the interpretation placed on the concerned provisions, by this Court. The above qualified assertion made on behalf of the Petitioners, was unacceptable to the learned Counsel representing the Respondents. 148. The above disagreement, does not require any detailed analysis. The instant aspect, stands determined in the M. Nagaraj case (2006) 8 SCC 212, wherein it was held as under: ...The question is-whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the Petitioners that the Statement of Objects and Reasons indicates that the impugned ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, Under Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted). Therefore, when a question with reference to the selection and appointment (as also, transfer) of Judges to the higher judiciary is raised, alleging that the independence of the judiciary as a basic feature/structure of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached. Then alone, would it be possible to conclude, whether or not, the independence of the judiciary as an essential basic feature of the Constitution, had been preserved (-and had not been breached). III. 151. We have already concluded in the Reference Order , that the term consultation used in Articles 124, 217 and 222 (as originally enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the judiciary. Finally, the Third Judges case, rendered in 1998 by another nine-Judge Bench, reiterated the position rendered in the Second Judges case. (ii) Secondly, the final intent emerging from the Constituent Assembly debates, based inter alia on the concluding remarks expressed by Dr. B.R. Ambedkar, maintained that the judiciary must be independent of the executive. The aforesaid position came to be expressed while deliberating on the subject of appointment of Judges to the higher judiciary. Dr. B.R. Ambedkar while responding to the sentiments expressed by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Ananthasayanam Ayyangar, noted the view of the Constituent Assembly, that the Members were generally in agreement, that independence of the judiciary , from the executive should be made as clear and definite as it could be made by law . The above assertion made while debating on the issue of appointment of Judges to the Supreme Court, effectively resulted in the acknowledgement, that the issue of appointment of the Judges to the higher judiciary, had a direct nexus with independence of the judiciary . Dr. B.R. Ambedkar declined the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, was considered and expressly rejected (in the Reference Order ). Furthermore, the submission, that the executive had no role, in the prevailing process of selection and appointment of Judges to the higher judiciary was also rejected, by highlighting the role of the executive in the matter of appointment of Judges to the higher judiciary. Whilst recording the above conclusions, it was maintained (in the Reference Order ), that primacy in the matter of appointment of Judges to the higher judiciary, was with the Chief Justice of India, and that, the same was based on the collective wisdom of a collegium of Judges. (vi) Sixthly, the contention advanced at the behest of the Respondents, that even in the matter of appointment of Judges to the higher judiciary (and in the matter of their transfer) Under Articles 124, 217 (and 222), must be deemed to be vested in the executive, because the President by virtue of the constitutional mandate contained in Article 74, had to act in accordance with the aid and advice tendered to him by the Council of Ministers, was rejected by holding, that primacy in the matter of appointment of Judges to the higher judiciary, continued to remain with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, according to learned Counsel representing the Respondents, primacy in the matter of selection and appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to another, even under the impugned constitutional amendment, continued to remain, in the hands of the judiciary. 154. In conjunction with the aforesaid submission, it was emphatically pointed out, that the provisions of the NJAC Act postulate, that the NJAC would not recommend a person for appointment as a Judge to the higher judiciary, if any two Members of the NJAC, did not agree with such recommendation. Based on the fact, that the Chief Justice of India and the two other senior Judges of the Supreme Court, were ex officio Members of the NJAC, it was asserted, that the veto power for rejecting an unsuitable recommendation by the judicial component of the NJAC, would result in retaining primacy in the hands of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to another. This according to learned Counsel for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the learned Attorney General, eminent persons had to be lay persons having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification, such lay persons would have the collective authority, to override the collective wisdom of the Chief Justice of India and two Judges of the Supreme Court of India. The instant issue, is demonstrably far more retrograde, when the Union Minister in charge of Law and Justice also supports the unanimous view of the judicial component, because still the dissenting voice of the eminent persons would prevail. It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile. 157. When the issue is of such significance, as the constitutional position of Judges of the higher judiciary, it would be fatal to depend upon the moral strength of individuals. The judiciary has to be manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour. There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chief Justice of India). One would also ordinarily feel, that the President of India and/or the Prime Minister of India in the discharge of their onerous responsibilities in running the affairs of the country, practically all the time take decisions having far reaching consequences, not only in the matter of internal affairs of the country on the domestic front, but also in the matter of international relations with other countries. One would expect, that vesting the authority of appointment of Judges to the higher judiciary with any one of them should not ordinarily be suspect of any impropriety. Yet, the Constituent Assembly did not allow any of them, any defined participatory role. In fact the debate in the Constituent Assembly, removed the participation of the political-executive component, because of fear of being impacted by political-pressure and political considerations . Was the view of the Constituent Assembly, and the above noted distrust, legitimate? 160. A little personal research, resulted in the revelation of the concept of the legitimate power of reciprocity , debated by Bertram Raven in his article- The Bases of Power and the Power/Interaction Model of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Marcel Nauss, who had conducted a study on gift giving, it was emphasised, that there is an obligation to give, an obligation to receive, and an obligation to repay . According to the author, it was in the above network of indebtedness, that the first giver could exploit the favour, and would rightfully assume the role of a compliance practitioner. And accordingly it was concluded, that although the obligation to repay constituted the essence of the reciprocity rule, it was the obligation to receive, that made the rule so easy to exploit. Describing the power of reciprocity, Cialdini in his article expressed, that the person who gives first remains, in control; and the person who was the recipient, always remained in debt. It is pointed out, that the above situation was often deliberately created, and psychologically maintained. It was also the view of the author, that the more valuable, substantial and helpful the original favour, the more indebted the recipient would continue to feel. In the above article, a reference was made to Alvin Gouldner, in whose opinion, there was no human society on earth, that does not follow the rule of reciprocity. Referring also to the views ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation, which often generates, or at least reinforces, a judge's sense of loyalty and gratitude to her benefactors. In the last few years, we have witnessed a wave of dissatisfaction with the selection process for federal judges. Legal scholarship in particular has offered frequent critique and constructive suggestions for change. As it must, this scholarship recognizes that any change ventured must weigh the impact of nomination and confirmation on a number of segments of American life, including the constitutional balance of powers and public perception of the judiciary. To omit from these concerns the effect of any change on the ultimate quality of judicial decision making would, of course, be a mistake. Thus, in studying any new selection procedure, we must contemplate the procedure's potential for creating and invigorating a judge's feelings of loyalty and gratitude to her benefactors. The foregoing should, therefore, not only shed light on the process of federal court decision making in general, but also give much needed guidance for evaluating proposed changes to judicial selection. 164. It is however pertinent to mention, that in her article, Laura E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointments of Judges to the higher judiciary. VI. 166. The jurisdictions that have to be dealt with, by Judges of the higher judiciary, are large and extensive. Within the above jurisdictions, there are a number of jurisdictions, in which the executive is essentially a fundamental party to the lis. This would inter alia include cases arising out of taxing statutes which have serious financial implications. The executive is singularly engaged in the exploitation of natural resources, often through private entrepreneurs. The sale of natural resources, which also, have massive financial ramifications, is often subject to judicial adjudication, wherein also, the executive is an indispensable party. Challenges arising out of orders passed by Tribunals of the nature of the Telecom Disputes Settlement Appellate Tribunal and the Appellate Tribunal for Electricity, and the like, are also dealt with by the higher judiciary, where also the executive has a role. Herein also, there could be massive financial implications. The executive is also a necessary party in all matters relating to environmental issues, including appeals from the National Green Tribunals. Not only in all crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other. A success or a defeat-a win or a loss. The plea of conflict of interest would be available against the executive, if it has a participatory role in the final selection and appointment of Judges, who are then to sit in judgment over matters, wherever the executive is an essential and mandatory party. The instant issue arose for consideration in the Madras Bar Association case (2014) 10 SCC 1. In the above case a five-Judge Bench considered the legality of the participation of Secretaries of Departments of the Central Government in the selection and appointment of the Chairperson and Members of the National Tax Tribunal. On the above matter, this Court held, as under: Section 7 cannot even otherwise be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention that the interests of the Central Government would be represented on one side in every litigation before NTT. It is not possible to accept a party to a litigation can participate in the selection process whereby the Chairperson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or through a Judicial Appointments Council. It was highlighted, that in four countries, Judges were appointed directly by the executive, i.e., by the Governor General or the President. We were informed, that in one European country, Judges were nominated by the Minister of Justice and confirmed by the Parliamentary Committee. In the United States of America, Judges were appointed through a process of nomination by the President and confirmation by the Senate. It was highlighted, that in all the fifteen countries, the executive was the final determinative/appointing authority. And further that, in all the countries, the executive had a role to play in the selection and appointment of Judges. The foresaid factual position was brought to our notice for the singular purpose of demonstrating, that executive participation in the process of selection and appointment of Judges had not made the judiciary in any of the fifteen countries, subservient to the political-executive. It was asserted, that the countries referred to by him were in different continents of the world, and there was no complaint with reference to the independence of the judiciary . The point sought to be driven home wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifteen countries, we consider it expedient to delve further on the subject. During the hearing of the present controversy, a paper written in November 2008, by Nuno Garoupa and Tom Ginsburg of the Law School, University of Chicago, came to hand. The paper bore the caption- Guarding the Guardians: Judicial Councils and Judicial Independence . The paper refers to comparative evidence, of the ongoing debate, about the selection and discipline of Judges. The article proclaims to aim at two objectives. Firstly, the theory of formation of Judicial Councils, and the dimensions on which they differ. And secondly, the extent to which different designs of Judicial Council, affect judicial quality. These two issues were considered as of extreme importance, as the same were determinative of the fact, whether Judges would be able to have an effective role in implementing social policy, as broadly conceived. It was observed, that Judicial Councils had come into existence to insulate the appointment, promotion and discipline of Judges from partisan political influence, and at the same time, to cater to some level of judicial accountability. It was the authors' view, that the Judicial Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn for adoption of the Supreme Councils, in the French-Italian tradition, was aimed at ensuring independence of the judiciary after periods of undemocratic rule. Perhaps because of concerns over structural problems, it was pointed out, that external accountability had emerged as a second goal for these Supreme Councils. Referring to the Germany, Austria and Netherlands models, it was asserted, that their Councils were limited to playing a role in selection (rather than promotion and discipline) of Judges. Referring to Dutch model, it was pointed out, that recent reforms were introduced to ensure more transparency and accountability. 174. It was also brought out, that Judicial Councils in civil law jurisdictions, had a nexus to the Supreme Court of the country. Referring to Costa Rica and Austria, it was brought out, that the Judicial Councils in these countries were a subordinate organ of the Supreme Court. In some countries like Brazil, Judicial Councils were independent bodies with constitutional status, while in others Judicial Councils governed the entire judiciary. And in some others, like Guatemala and Argentina, they only governed lower courts. 175. Referring to recr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter, which falls for our consideration, it would be imperative for us, to keep in mind, the progression of the concepts of independence of the judiciary and judicial review were now being recognized the world over. The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an obvious reality. In recognition of the above trend, there cannot be any greater and further participation of the executive, than that which existed hitherto before. And in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and Third Judges cases. It is therefore imperative to conclude, that the participation of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none-the Leader of the single largest Opposition Party in the House of the People), in the selection of eminent persons , would be a retrograde step, and cannot be accepted. VIII. 179. The only component of the NJAC, which remains to be dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Attorney General was that the eminent persons had to be lay persons having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification. Mr. T.R. Andhyarujina, learned senior Counsel who represented the State of Maharashtra, which had ratified the impugned constitutional amendment, had appeared to support the impugned constitutional amendment, as well as, the NJAC Act, expressed a diametrically opposite view. In his view, the eminent persons with reference to the NJAC, could only be picked out of, eminent lawyers, eminent jurists, and even retired Judges, or the like, having an insight to the working and functioning of the judicial system. It is therefore clear, that in the view of the learned senior Counsel, the nominated eminent persons would have to be individuals, with a legal background, and certainly not lay persons, as was suggested by the learned Attorney General. We have recorded the submissions advanced by Mr. Dushyant A. Dave, learned senior Counsel-the President of the Supreme Court Bar Association, who had addressed the Bench in his usual animated manner, with no holds ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Commission, the Chairman and Members of the Union Public Service Commission, the Chief Election Commissioner and the Election Commissioners and the like. The position would be disastrous. In our considered view, it is imprudent to ape a system prevalent in an advanced country, with an evolved civil society. 184. The sensitivity of selecting Judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts. The role of eminent persons cannot be appreciated in the manner expressed through the impugned constitutional amendment and legislative enactment. At best, to start with, one or more eminent persons (perhaps even a committee of eminent persons ), can be assigned an advisory/consultative role, by allowing them to express their opinion about the nominees under consideration. Perhaps, under the judicial component of the selection process. And possibly, comprising of eminent lawyers, eminent jurists, and even retired Judges, or the like having an insight to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficiently, inasmuch as, persons of the nature referred to by him, came to be selected and appointed as Judges of the Supreme Court. In a manner as would be in tune with the dignity of this Court, he had not referred to any of the Judge(s) by name. His reference was by deeds. Each and every individual present in the Court-hall, was aware of the identity of the concerned Judge, in the manner the submissions were advanced. The projection by the learned Attorney General was joyfully projected by the print and electronic media, extensively highlighting the allusions canvassed by the learned Attorney General. 187. If our memory serves us right, the learned Attorney General had made a reference to the improper appointment of three Judges to the Supreme Court. One would have felt, without going into the merits of the charge, that finding fault with just three Judges, despite the appointment of over a hundred Judges to the Supreme Court, since the implementation of the judgment rendered in the Second Judges case (pronounced on 6.10.1993)-M.K. Mukherjee, J., being the first Judge appointed under the collegium system on 14.12.1993, and B.N. Kirpal, CJ., the first Chief Justice thereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, that a review petition came to be filed against the alleged improper order, passed by the said Judge. The same was dismissed. After the Judge demitted office, a curative petition was filed, wherein the alleged improper order passed by the concerned Judge, was assailed. The same was also dismissed. Even thereafter, a petition was filed against the concerned Judge, by impleading him as a party-Respondent. The said petition was also dismissed. We need to say no more, than what has been observed hereinabove, with reference to the particular case, allegedly wrongly decided by the concerned Judge. 190. It is imperative for us, while taking into consideration the submissions advanced by the learned Attorney General, to highlight, that the role of appointment of Judges in consonance with the judgment rendered in the Second Judges case, envisages the dual participation of the members of the judiciary, as also, the members of the executive. Details in this behalf have been recorded by us in the Reference Order . And therefore, in case of any failure, it is not only the judicial component, but also the executive component, which are jointly and equally responsible. Therefore, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lastly, it has not been possible for us to comprehend, how and why, a Judge who commenced to tweet his views after his retirement, can be considered to be unworthy of elevation. The fact that the concerned Judge started tweeting his views after his retirement, is not in dispute. The inclusion of this instance may well demonstrate, that all in all, the functioning of the collegium system may well not be as bad as it is shown to be. 192. The submissions advanced by Mr. Dushyant A. Dave were not limited just to the instance of a Judge of the Supreme Court. He expressed strong views about persons like Maya Kodnani, a former Gujarat Minister, convicted in a riots case, for having been granted relief, while an allegedly renowned activist Teesta Setalvad, had to run from pillar to post, to get anticipatory bail. He also made a reference to convicted politicians and film stars, who had been granted relief by two different High Courts, as also by this Court. It was his lament, that whilst film stars and politicians were being granted immediate relief by the higher judiciary, commoners suffered for years. He attributed all this, to the defective selection process in vogue, which had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to Judges of the Supreme Court. In the above view of the matter, it is not possible for us to infer, that there are serious infirmities in the matter of selection and appointment of Judges to the higher judiciary, under the prevailing collegium system , on the basis of the submissions advanced before us. 194. It is apparent that learned Counsel had their say, without any limitations. That was essential, to appreciate the misgivings in the prevailing procedure of selection and appointment of Judges to the higher judiciary. We have also recorded all the submissions (hopefully) in terms of the contentions advanced, even in the absence of supporting pleadings. We will be failing in discharging our responsibility, if we do not refer to the parting words of Mr. Dushyant A. Dave-the President of the Supreme Court Bar Association, who having regained his breath after his outburst, did finally concede, that still a majority of the Judges appointed to the High Courts and the Supreme Court, were/are outstanding, and a miniscule minority were bad Judges . All in all, a substantial emotional variation, from how he had commenced. One can only conclude by observing, that individual faili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil society, to play any effective role in that direction. For the simple reason, that it is not yet sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent, for the political-executive establishment. It is therefore, that the higher judiciary, which is the savior of the fundamental rights of the citizens of this country, by virtue of the constitutional responsibility assigned to it Under Articles 32 and 226, must continue to act as the protector of the civil society. This would necessarily contemplate the obligation of preserving the rule of law , by forestalling the political-executive, from transgressing the limits of their authority as envisaged by the Constitution. 198. Lest one is accused of having recorded any sweeping inferences, it will be necessary to record the reasons, for the above conclusion. The Indian Express, on 18.6.2015, published an interview with L.K. Advani, a veteran BJP Member of Parliament in the Lok Sabha, under the caption Ahead of the 40th anniversary of the imposition of the Emergency on 25.6.1975 . His views were dreadfully revealing. In his opinion, forces that could crush democracy, were now str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere appointed, by the previous U.P.A.-dispensation. That is despite the fact, that a Governor under the Constitutional mandate of Article 156(3) has a term of five years, from the date he enters upon his office. A Governor is chosen out of persons having professional excellence and/or personal acclaim. Each one of them, would be eligible to be nominated as an eminent person Under Article 124A(1)(d). One wonders, whether all these resignations were voluntary. The above depiction is not to cast any aspersion. As a matter of fact, its predecessor-the U.P.A. Government, had done just that in 2004. 202. It is necessary to appreciate, that the Constitution does not envisage the spoils system (also known as the patronage system ), wherein the political party which wins an election, gives Government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power. 203. It is also relevant to indicate, the images of the spoils system are reflected from the fact, that a large number of persons holding high positions, in institutions of significance, likewise resigned from their assignments, after the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India, does not augur the participation of the political-executive establishment, in the selection and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another. XI. 206. It may be noticed, that one of the contentions advanced on behalf of the Petitioners was, that after the 121st Constitution Amendment Bill was passed by the Lok Sabha and the Rajya Sabha, it was sent to the State Legislatures for ratification. Consequent upon the ratification by the State Legislatures, in compliance of the mandate contained in Article 368, the President granted his assent to the same on 31.12.2014, whereupon it came to be enacted as the Constitution (99th Amendment) Act. Section 1(2) thereof provides, that the provisions of the amendment, would come into force from such date as may be notified by the Central Government, in the Official Gazette. And consequent upon the issuance of the above notification, the amendment was brought into force, through a notification, with effect from 13.4.2015. It was the submission of the Petitioners, that the jurisdiction to enact the NJAC Act, was acquired by the Parliament on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Judicial Appointments Commission referred to Under Article 124A , would result in the introduction of an absolutely new regimen. It was submitted, that such substitution would also amount to an amendment of the existing provisions of the Constitution, and as such, the same would also require the postulated ratification provided in respect of a constitutional amendment, under the proviso to Article 368(2). And since the NJAC Act, had been enacted as an ordinary legislation, the same was liable to be held as non est on account of the fact, that the procedure contemplated Under Article 368, postulated for an amendment to the Constitution, had not been followed. 208. Since it was not disputed, that the Parliament had indeed enacted Rules of Procedure and the Conduct of Business of Lok Sabha Under Article 118, which contained Rule 66 postulating, that a Bill which was dependent wholly or partly on another Bill could be introduced in anticipation of the passing of the Bill, on which it was dependent. Leading to the inference, that the 121st Constitution Amendment Bill, on which the NJAC Bill was dependent, could be taken up for consideration (by introducing the same in the Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still not possible to contemplate, that a Bill which is dependent wholly (or, in part) upon another Bill, can be passed and brought into operation, till the dependent Bill is passed and brought into effect. 211. It is however necessary to record, that even though the position postulated in the preceding paragraphs, as canvassed by the Attorney General, was permissible, the passing of the dependent enactment i.e., the NJAC Bill, could not have been given effect to, till the foundational enactment had become operational. In the instant case, the NJAC Act, would have failed the test, if it was given effect to, from a date prior to the date on which, the provisions of the enactment on which it was dependent-the Constitution (99th Amendment) Act, became functional. In other words, the NJAC Act, would be stillborn, if the dependent provisions, introduced by way of a constitutional amendment, were yet to come into force. Stated differently, the contravention of the principle contemplated in Rule 66, could not have been overlooked, despite the suspension of the said rule, and the dependent enactment could not come into force, before the depending/controlling provision became operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as was contemplated for enacting an ordinary legislation, had indeed been followed by the Parliament, after the NJAC Bill was tabled in the Parliament, inasmuch as, both Houses of Parliament approved the NJAC Bill by the postulated majority, and thereupon, the same received the assent of the President on 31.12.2014. For the above reasons, the instant additional submission advanced by the Petitioners, cannot also be acceded to, and is accordingly declined. XII. 214. Mr. Mukul Rohatgi, learned Attorney General for India, repulsed the contentions advanced at the hands of the Petitioners, that vires of the provisions of the NJAC Act, could be challenged, on the ground of being violative of the basic structure of the Constitution. 215. The first and foremost contention advanced, at the hands of the learned Attorney General was, that the constitutional validity of an amendment to the Constitution, could only be assailed on the basis of being violative of the basic structure of the Constitution. Additionally it was submitted, that an ordinary legislative enactment (like the NJAC Act), could only be assailed on the grounds of lack of legislative competence and/or the viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatures'--this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. The Court's attention was also drawn to Kuldip Nayar v. Union of India (2006) 7 SCC 1, wherein it was recorded: 107. The basic structure theory imposes limitation on the power of Parliament to amend the Constitution. An amendment to the Constitution Under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the Petitioners. Last of all, learned Attorney General placed reliance on Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, and referred to the following observations: 116. For determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and purpose and the integrity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o order as to costs. It was pointed out, that it was apparent, that even while determining the validity of an ordinary legislation, namely, the U.P. Public Services (Tribunals) Act, 1976, this Court in the aforestated judgment had examined, whether the provisions of the assailed legislation, were against the basic structure of the Constitution, and having done so, it had rejected the contention. Thereby implying, that it was open for an aggrieved party to assail, even the provisions of an ordinary legislation, based on the concept of basic structure . In addition to the above, reliance was placed on the Kuldip Nayar case (2006) 7 SCC 1 (also relied upon by the learned Attorney General), and whilst acknowledging the position recorded in the above judgment, that an ordinary legislation could not be challenged on the ground of violation of the basic structure of the Constitution, the Court, in paragraph 108, had observed thus: 108. As stated above, residence is not the constitutional requirement and, therefore, the question of violation of basic structure does not arise. It was submitted, that in the instant judgment also, this Court had independently examined, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3(7) of the 1994 Act and Rule 8-A inasmuch as no exercise has been undertaken during the post M. Nagaraj period. In M. Nagraj, there has been emphasis on interpretation and implementation, width and identity, essence of a right, the equality code and avoidance of reverse discrimination, the nuanced distinction between the adequacy and proportionality, backward class and backwardness, the concept of contest specificity as regards equal justice and efficiency, permissive nature of the provisions and conceptual essence of guided power, the implementation in concrete terms which would not cause violence to the constitutional mandate; and the effect of accelerated seniority and the conditions prevalent for satisfaction of the conditions precedent to invoke the settled principles. The matter was adjudicated upon as under: 86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighted, that the issue under reference arose on account of the fact, that learned Counsel for the Petitioners had placed reliance on the judgment of this Court, in the Madras Bar Association case (2014) 10 SCC 1, wherein this Court had examined the provisions of the National Tax Tribunal Act, 2005, and whilst doing so, had held the provisions of the above legislative enactment as ultra vires the provisions of the Constitution, on account of their being violative of the basic structure of the Constitution. It is therefore quite obvious, that the instant contention was raised, to prevent the learned Counsel for the Petitioners, from placing reliance on the conclusions recorded in the Madras Bar Association case (2014) 10 SCC 1. 220. We have given our thoughtful consideration to the above contentions. The basic structure of the Constitution, presently inter alia includes the supremacy of the Constitution, the republican and democratic form of Government, the federal character of distribution of powers, secularism, separation of powers between the legislature, the executive, and the judiciary, and independence of the judiciary . This Court, while carving out each of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is to be understood, that rule/principle collectively emerging from the above provisions, had been breached, or that the above Articles read together, had been transgressed. 221. So far as the issue of examining the constitutional validity of an ordinary legislative enactment is concerned, all the constitutional provisions, on the basis whereof the concerned basic feature arises, are available. Breach of a single provision of the Constitution, would be sufficient to render the legislation, ultra vires the Constitution. In such view of the matter, it would be proper to accept a challenge based on constitutional validity, to refer to the particular Article(s), singularly or collectively, which the legislative enactment violates. And in cases where the cumulative effect of a number of Articles of the Constitution is stated to have been violated, reference should be made to all the concerned Articles, including the preamble, if necessary. The issue is purely technical. Yet, if a challenge is raised to an ordinary legislative enactment based on the doctrine of basic structure , the same cannot be treated to suffer from a legal infirmity. That would only be a technical flaw. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended, that the Parliament had been authorized by law to regulate the procedure for the appointment of the Chief Justice of India, Under Article 124C. It was submitted, that the NJAC should have been allowed to frame Regulations, with reference to the manner of selection and appointment of Judges to the higher judiciary including the Chief Justice of India. 223. It was submitted, that the term fit , expressed in Section 5(1) of the NJAC Act, had not been elaborately described. And as such, fitness would be determined on the subjective satisfaction of the Members of the NJAC. It was acknowledged, that even though the learned Attorney General had expressed, during the course of hearing, that fitness only meant ....mental and physical fitness.... , a successor Attorney General may view the matter differently, just as the incumbent Attorney General has differed with the concession recorded on behalf of his predecessor (in the Third Judges case), even though they both represent the same ruling political party. And, it was always open to the Parliament to purposefully define the term fit , in a manner which could sub-serve the will of the executive. It was pointed out, that even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice of India, only if he had a minimum left over tenure of two years. Such an enactment would have a devastating effect, even though it would appear to be innocuously legitimate. It was pointed out, that out of the 41 Chief Justices of India appointed till date, only 12 Chief Justices of India had a tenure of more than two years. If such action, as has been illustrated above, was to be taken at the hands of the Parliament, it was bound to cause discontent to those who had a legitimate expectation to hold the office of Chief Justice of India, under the seniority rule, which had been in place for all this while. 227. It was asserted, that the illustration portrayed in the foregoing paragraph, could be dimensionally altered, by prescribing different parameters, tailor-made for accommodating a favoured individual. It was submitted, that the Parliament should never be allowed the right to create uncertainty, in the matter of selection and appointment of the Chief Justice of India, as the office of the Chief Justice of India was pivotal, and shouldered extremely onerous responsibilities. The exercise of the above authority by the Parliament, it was pointed out, could/would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new trends was the change in the approach of the court with a view to give tilt in favour of upholding the orders of the government. Under the cover of highsounding words like social justice the court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases. In this behalf, reference was also made to the observations of H.M. Seervai (in Constitutional Law of India-A Critical Commentary ), which are as follows: In Sankalchand Sheth's Case, Bhagwati J. after explaining why the Chief Justice of India had to be consulted before a judge could be transferred to the High Court of another State, said: I think it was Mr. Justice Jackson who said 'Judges are more often bribed by their ambition and loyalty rather than by money'.... In my submission in quoting the above passage Bhagwati J. failed to realize that his only loyalty was to himself for, as will appear later, he was disloyal, inter alia, to his Chief, Chandrachud C.J. in order to fulfil his own ambition to be the Chief Justice of India as soon as possible. That Bhagwati J. was bribed by that ambition will be clear when I deal with his treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commendation, if any two Members thereof, opposed the nomination of a candidate. It was contended, that placing the power of veto, in the hands of two Members of the NJAC, would violate the recommendatory power expressed in Article 124B. In this behalf, it was contended, that the above position would entitle two eminent persons -lay persons (if the submission advanced by the learned Attorney General is to be accepted), to defeat a unanimous recommendation of the Chief Justice of India and the two senior most Judges of the Supreme Court. And would also, negate the primacy vested in the judiciary, in the matter of appointment of Judges, to the higher judiciary. 232. It was submitted, that the above power of veto exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause serious inroads into the independence of the judiciary . Most importantly, it was contended, that neither the impugned constitutional amendment, nor the provisions of the NJAC Act, provided for any quorum for holding meetings of the NJAC. And as such, quite contrary to the contentions advanced at the hands of the learned Attorn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the simple majority). We are satisfied, that the provisions of the NJAC Act which mandate, that the NJAC would not make a recommendation in favour of a person for appointment as a Judge of the High Court or of the Supreme Court, if any two Members thereof did not agree with such recommendation, cannot be considered to be in violation of the rule/principle expressed above. As a matter of fact, the NJAC Act expressly provides, that if any two Members thereof did not agree to any particular proposal, the NJAC would not make a recommendation. There is nothing in law, to consider or treat the aforesaid stipulations in the second proviso to Section 5(2) and Section 6(6) of the NJAC Act, as unacceptable. The instant submission advanced at the hands of the learned Counsel for the Petitioners is therefore liable to be rejected, and is accordingly rejected. 234. We have also given our thoughtful consideration to the other contentions advanced at the hands of the learned Counsel for the Petitioners, with reference to Section 5 of the NJAC Act. We are of the view, that it was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, that Judges to every High Court are appointed in batches, each batch may have just two or three appointees, or may sometimes have even ten or more individuals. A group of Judges appointed to one High Court, will be separated from the lot of Judges appointed to another High Court, by just a few days, or by just a few weeks, and sometimes by just a few months. In the all India seniority of Judges, the complete batch appointed on the same day, to one High Court, will be placed in a running serial order (in seniority) above the other Judges appointed to another High Court, just after a few days or weeks or months. Judges appointed later, will have to be placed en masse below the earlier batch, in seniority. If appointment of Judges to the Supreme Court, is to be made on the basis of seniority (as a primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court. And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved themselves able and meritorious as High Court Judges, they will have to be appointed one after the other, when vacancies of Judges arise in the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 240. A challenge was also raised by the learned Counsel for the Petitioners to Section 7 of the NJAC Act. It was asserted, that on the recommendation made by the NJAC, the President was obliged to appoint the individual recommended as a Judge of the High Court Under Article 217(1). It was submitted, that the above position was identical to the position contemplated Under Article 124(2), which also provides, that a candidate recommended by the NJAC would be appointed by the President, as a Judge of the Supreme Court. It was submitted, that neither Article 124(2) nor Article 217(1) postulate, that the President could require the NJAC to reconsider, the recommendation made by the NJAC, as has been provided for under the first proviso to Section 7 of the NJAC Act. It was accordingly the contention of the learned Counsel for the Petitioners, that the first proviso to Section 7 was ultra vires the provisions of Articles 124(2) and 217(1), by providing for reconsideration, and that, the same was beyond the pale and scope of the provisions referred to above. 241. Having considered the submission advanced by the learned Counsel for the Petitioners in the foregoing paragraph, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings of the NJAC for two reasons. Firstly, the executive was the largest individual litigant, in matters pending before the higher judiciary, and therefore, cannot have any discretionary role in the process of selection and appointment of Judges to the higher judiciary (in the manner expressed in the preceding paragraph). And secondly, the same would undermine the concepts of separation of powers and independence of the judiciary , whereunder the judiciary has to be shielded from any possible interference, either from the executive or the legislature. 244. We have given our thoughtful consideration to the above two submissions, dealt with in the preceding two paragraphs. We have already concluded earlier, that the participation of the Union Minister in charge of Law and Justice, as a Member of the NJAC, as contemplated Under Article 124A(1), in the matter of appointment of Judges to the higher judiciary, would breach the concepts of separation of powers and the independence of the judiciary , which are both undisputedly components of the basic structure of the Constitution of India. For exactly the same reasons, we are of the view, that Section 8 of the NJAC Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant submission is concerned, we have no hesitation in affirming, that unless the context requires otherwise, the provisions of the General Clauses Act, can be applied, for a rightful and effective understanding of the provisions of the Constitution. 248. Founded on the submission noticed in the foregoing paragraph, the Solicitor General placed reliance on Sections 6, 7 and 8 of the General Clauses Act, which are being extracted hereunder: 6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, no further reference could be made to the repealed enactment, and for all intents and purposes, reference must mandatorily be made, only to the re-enacted provision. Relying on the principles underlying Sections 6, 7 and 8, it was submitted, that even if the prayers made by the Petitioners were to be accepted, and the impugned constitutional amendment was to be set aside, the same would not result in the revival of the unamended provisions. 250. Learned Solicitor General also referred to a number of judgments rendered by this Court, to support the inference drawn by him. We shall therefore, in the first instance, examine the judgments relied upon: (i) Reliance in the first instance was placed on the Ameer-un-Nissa Begum case AIR 1955 SC 352. Our pointed attention was drawn to the observations recorded in paragraph 24 thereof, which is reproduced hereunder: 24 The result will be the same even if we proceed on the footing that the various 'Firmans' issued by the Nizam were in the nature of legislative enactments determining private rights somewhat on the analogy of private Acts of Parliament. We may assume that the 'Firman' of 26-6-1947 was repealed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the legislation had been set aside by a Court order. (ii) Reliance was then placed on the Firm A.T.B. Mehtab Majid Company case AIR 1963 SC 928, and more particularly, the conclusions drawn in paragraph 20 thereof. A perusal of the above judgment would reveal, that this Court had recorded its conclusions, without relying on either the English Common Law, or the provisions of the General Clauses Act, which constituted the foundation of the contentions advanced at the hands of the Respondents, before us. We are therefore satisfied, that the conclusions drawn in the instant judgment, would not be applicable, to arrive at a conclusion one way or the other, insofar as the present controversy is concerned. (iii) Reference was thereafter made to the B.N. Tewari case AIR 1965 SC 1430, and our attention was drawn to the following observations: 6. We shall first consider the question whether the carry forward rule of 1952 still exists. It is true that in Devadasan's case AIR 1964 SC 179, the final order of this Court was in these terms: In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid. That howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the carry forward rule of 1952 would be unconstitutional, for that rule no longer exists. The non-revival of the carry-forward-rule of 1952, which was sought to be modified in 1955, determined in the instant judgment, was not on account of the submissions, that have been advanced before us in the present controversy. But, on account of the fact, that the Government of India had itself cancelled the carry-forward-rule of 1952. Moreover, the issue under consideration in the above judgment, was not akin to the controversy in hand. As such, we are satisfied that reliance on the B.N. Tewari case AIR 1965 SC 1430 is clearly misplaced. (iv) Relying on the Koteswar Vittal Kamath case (1969) 1 SCC 255, learned Solicitor General placed reliance on the following observations recorded therein: 8. On that analogy, it was argued that, if we hold that the Prohibition Order of 1950, was invalid, the previous Prohibition Order of 1119, cannot be held to be revived. This argument ignores the distinction between supersession of a rule, and substitution of a rule. In the case of Firm A.T.B. Mehtab Majid Company (supra), the new Rule 16 was substituted for the old Rule 16. The process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leading to the submissions and inferences recorded above, are not applicable to the present case. The highlighted portion of the judgment extracted above, would apply to the present controversy. In the present case the impugned constitutional amendment was promulgated independently of the original provisions of the Constitution. In fact, the amended provisions introduce a new scheme of selection and appointment of Judges to the higher judiciary, directionally different from the prevailing position. And therefore, the original provisions of the Constitution would have been made inoperative, only if the amended provisions were valid. Consequently, if reliance must be placed on the above judgment, the conclusion would be against the proposition canvassed. It would however be relevant to mention, that the instant judgment, as also, some of the other judgments relied upon by the learned Counsel for the Respondents, have been explained and distinguished in the State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd. (1977) 1 SCC 643, which will be dealt with chronologically hereinafter. (v) The learned Solicitor General then placed reliance on, the Mulchand Odhavji case (1971 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature intended or what the Governor had assented to consisted of a separate repeal and a fresh enactment. The two results were to follow from one and the same effective Legislative process. The process had, therefore, to be so viewed and interpreted. 20. Some help was sought to be derived by the citation of B.N. Tewari v. Union of India [1965] 2 SCR 421 and the case of Firm A.T.B. Mehtab Majid and Co. v. State of Madras. Tewari's case related to the substitution of what was described as the carry forward rule contained in the departmental instruction which was sought to be substituted by a modified instruction declared invalid by the court. It was held that when the rule contained in the modified instruction of 1955 was struck down the rule contained in a displaced instruction did not survive. Indeed, one of the arguments there was that the original carry forward rule of 1952 was itself void for the very reason for which the carry forward rule, contained in the modified instructions of 1955, had been struck down. Even the analogy of a merger of an order into another which was meant to be its substitute could apply only where there is a valid substitution. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally effective. We have as explained above, reached the same conclusion by considering the ordinary and natural meaning of the term substitution when it occurs without anything else in the language used or in the context of it or in the surrounding facts and circumstances to lead to another inference. It means, ordinarily, that unless the substituted provision is there to take its place, in law and in effect, the pre-existing provision continues. There is no question of a revival . It would be relevant to mention, that the learned Solicitor General conceded, that the position concluded in the instant judgment, would defeat the stance adopted by him. We endorse the above view. The position which is further detrimental to the contention advanced on behalf of the Respondents is, that in recording the above conclusions, this Court in the above cited case, had taken into consideration, the judgments in the Firm A.T.B. Mehtab Majid case AIR 1963 SC 928, the B.N. Tewari case AIR 1965 SC 1430, the Koteswar Vittal Kamath case (1969) 1 SCC 255, and the Mulchand Odhavji case (1971) 3 SCC 53. The earlier judgments relied upon by the learned Counsel for the Respondents would, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... couched. If the contention advanced by the learned Solicitor General is accepted, it would lead to a constitutional breakdown. The tremors of such a situation are already being felt. The retiring Judges of the higher judiciary, are not being substituted by fresh appointments. The above judgment, in our considered view, does not support the submission being canvassed, because on consideration of the ....totality of circumstances and the context.... the instant contention is just not acceptable. We are therefore of the considered view, that even the instant judgment can be of no avail to the Respondents, insofar as the present controversy is concerned. (viii) Reliance was next placed on the judgment rendered by this Court in Bhagat Ram Sharma v. Union of India 1988 (Supp) SCC 30. The instant judgment was relied upon only to show, that an enactment purported to be an amendment, has the same qualitative effect as a repeal of the existing statutory provision. The aforesaid inference was drawn by placing reliance on Southerland's Statutory Construction, 3rd Edition, Volume I. Since there is no quarrel on the instant proposition, it is not necessary to record anything further. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal-(see Craies on statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwell's Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Taylor (1868) L.R. 3 C.P. 645; Southerland's Statutory Construction 3rd Edn. Vol. I, paragraphs 2014 and 2022, pp. 468 and 490). Broadly speaking, the principal object of a Repealing and Amending Act is to 'excise dead matter, prune off superfluities and reject clearly inconsistent enactments'-see Mohinder Singh v. Mst. Harbhajan Kaur. What needs to be kept in mind, as we have repeatedly expressed above is, that the issue canvassed in the judgments relied upon, was the effect of a voluntary decision of a legislature in amending or repealing an existing provision. That position would arise, if the Parliament had validly amended or repealed an existing constitutional provision. Herein, the impugned constitutional amendment has definetly the effect of substituting some of the existing provisions of the Constitution, and also, adding to it some n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations emerging out of the decision rendered in the Indian Express Newspapers (Bombay) Pvt. Ltd. Case: (1985) 1 SCC 641, we are satisfied, that the clear intent of the Parliament, while enacting the Constitution (99th Amendment) Act, was to provide for a new process of selection and appointment of Judges to the higher judiciary by amending the existing provisions. Naturally therefore, when the amended provision postulating a different procedure is set aside, the original process of selection and appointment under the unamended provisions would revive. The above position also emerges from the legal position declared in the Koteswar Vittal Kamath case (1969) 1 SCC 255. 252. It is not possible for us to accept the inferential contentions, advanced at the hands of the learned Counsel for the Respondents by placing reliance on Sections 6, 7 and 8 of the General Clauses Act. We say so, because the contention of the learned Solicitor General was based on the assumption, that a judicial verdict setting aside an amendment, has the same effect as a repeal of an enactment through a legislation. This is an unacceptable assumption. When a legislature amends or repeals an existing provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of independence of the judiciary , as well as, separation of powers . It has also been concluded by me, that Clause (d) of Article 124A(1) which provides for the inclusion of two eminent persons as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the basic structure of the Constitution. In the above view of the matter, I am of the considered view, that all the Clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution. 255. The contention advanced at the hands of the Respondents, to the effect, that the provisions of the Constitution which were sought to be amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the collegium system ), is declared to be operative. 5. To consider introduction of appropriate measures, if any, for an improved working of the collegium system , list on 3.11.2015. Jasti Chelameswar, J. 1. Very important and far reaching questions fall for the consideration of this Court in this batch of matters. The constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 are under challenge. 2. When these matters were listed for preliminary hearing on 21.04.2015, an objection was raised by Shri Fali S. Nariman, learned senior Counsel appearing for one of the Petitioners, that it is inappropriate for Justice Jagdish Singh Khehar to participate in the proceedings as the Presiding Judge of this Bench. The objection is predicated on the facts: Being the third senior most Puisne Judge of this Court, Justice Khehar is a memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union of India any objection to Justice Khehar hearing these batch of matters. 7. Shri Harish N. Salve and Shri K.K. Venugopal, learned senior Counsel who proposed to appear on behalf of different States also supported the stand of the learned Attorney General and made independent submissions in support of the conclusion. 8. After an elaborate hearing of the matter, we came to the unanimous conclusion that there is no principle of law which warrants Justice Khehar's recusal from the proceedings. We recorded the conclusion of the Bench in the proceedings dated 22.04.2015 and indicated that because of paucity of time, the reasons for the conclusion would follow later [Order dated 22.04.2015 insofar as it is relevant reads thus: A preliminary objection, whether Justice Jagdish Singh Khehar should preside over this Bench, by virtue of his being the fourth senior most Judge of this Court, also happens to be a member of the collegium, was raised by the Petitioners. Elaborate submissions were made by the Learned Counsel for the Petitioners and the Respondents. After hearing all the Learned Counsel, we are of the unanimous opinion that we do not see any reason in law req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of judges, although it was not completely dismissed in relation to jurors. This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party's advocate. He also pointed out that in contrast in the United States of America, the subject is covered by legislation. 13. Dimes v. Proprietors of Grand Junction Canal (1852) 10 ER 301, is one of the earliest cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the matter. We are not concerned with the details of the dispute between the parties to the case. Lord Chancellor Cottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour of the Defendant company. A year later, Dimes discovered that Lord Chancellor Cottenham had shares in the Defendant company. He petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of bias: (1) real danger test; and (2) reasonable suspicion test. The Court of Appeal confirmed the conviction by applying the real danger test. 16. The matter was carried further to the House of Lords. 17. Lord Goff noticed that there are a series of authorities which are not only large in number but bewildering in their effect . After analyzing the judgment in Dimes (supra), Lord Goff held: In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand. In other words, where a Judge has a pecuniary interest, no further inquiry as to whether there was a real danger or reasonable suspicion of bias is required to be undertaken. But in other cases, such an inquiry is required and the relevant test is the real danger test. But in other cases, the inquiry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In cases of other interest, the test to determine whether the Judge is disqualified to hear the case is the real danger test. 21. The Pinochet [Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (1999) 1 All E.R. 577] case added one more category to the cases of automatic disqualification for a judge. Pinochet, a former Chilean dictator, was sought to be arrested and extradited from England for his conduct during his incumbency in office. The issue was whether Pinochet was entitled to immunity from such arrest or extradition. Amnesty International, a charitable organisation, participated in the said proceedings with the leave of the Court. The House of Lords held that Pinochet did not enjoy any such immunity. Subsequently, it came to light that Lord Hoffman, one of the members of the Board which heard the Pinochet case, was a Director and Chairman of a company (known as A.I.C.L.) which was closely linked with Amnesty International. An application was made to the House of Lords to set aside the earlier judgment on the ground of bias on the part of Lord Hoffman. 22. The House of Lords examined the following questions; Whether the conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isqualify a man from sitting as judge in the cause. He opined that although the earlier cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. 24. Lord Wilkinson concluded that Amnesty International and its associate company known as A.I.C.L., had a non-pecuniary interest established that Senator Pinochet was not immune from the process of extradition. He concluded that, .....the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties 25. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of A.I.C.L. but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that even though a judge may not have financial interest in the outcome of a case, but in some other way his conduct or behaviour may give rise to a suspicion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly. The grievance, if any, on this ground should be on the part of the Respondents. 30. The learned Attorney General appearing for the Union of India made an emphatic statement that the Union of India has no objection for Justice Khehar hearing the matter as a presiding Judge of the Bench. 31. No precedent has been brought to our notice, where courts ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative decision is either voidable or void on the ground of bias. On the other hand, it is a well established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party. The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. [Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. (1865) 1 Q.B. 84.]. . The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification, they let the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipline us? Has all the independence acquired by the judicial branch since 6th October, 1993 been a myth-a euphemism for nepotism enabling inter alia promotion of mediocrity or even less occasionally-are questions at the heart of the debate in this batch of cases by which the Petitioners question the validity of the Constitution (99th Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 (hereinafter referred to as the AMENDMENT and the ACT , for the sake of convenience). 2. To understand the present controversy, a look at the relevant provisions of the Constitution of India, as they stood prior to and after the impugned AMENDMENT, is required. Prior to the AMENDMENT Article 124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than thirty other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficio; two other senior Judges of the Supreme Court next to the Chief Justice of India-Members, ex officio; the Union Minister in charge of Law and Justice-Member, ex officio two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People-Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women; Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission. 124B. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment, if any two members of the Commission do not agree for such recommendation. 10. The AMENDMENT made far reaching changes in the scheme of the Constitution, insofar as it relates to the selection process of Judges of the CONSTITUTIONAL COURTS. The President is no more obliged for making appointments to CONSTITUTIONAL COURTS to consult the CJI, the Chief Justices of High Courts and Governors of the States but is obliged to consult the NJAC. 11. The challenge to the AMENDMENT is principally on the ground that such substitution undermines the independence of the judiciary. It is contended that independence of judiciary is a part of the basic structure of the Constitution and the AMENDMENT is subversive of such independence. Hence, it is beyond the competence of the Parliament in view of the law declared by this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225 (hereinafter referred to as Bharati case). 12. Fortunately there is no difference of opinion between the parties to this lis regarding the proposition that existence of an independent judiciary is an essential requisite of a democratic Republic. Nor is there an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill-founded that proper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so far as administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence. ] that the issue is irrelevant for the masses and litigants. They only want that their cases should be decided quickly by judges who generate confidence. The question is-what is the formula by which judges-who can decide cases quickly and also generate confidence in the masses and litigants-be produced. What are the qualities which make a Judge decide cases quickly and also generate confidence? 15. Deep learning in law, incisive and alert mind to quickly grasp the controversy, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees. *** It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of Government. [Supreme Court of Canada in Valente v. Queen (1985) 2 SCR 673] 20. It is not really necessary for me to trace the entire history of development of the concept independence of the judiciary in democratic societies. It can be said without any fear of contradiction that all modern democratic societies strive to establish an independent judiciary. The following are among the most essential safeguards to ensure the independence of the judiciary-Certainty of tenure, protection from removal from office except by a stringent process in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 269] 23. Article III (1) [Article III Section I. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.] of the American Constitution stipulates that Judges of the Supreme Court and also the inferior Courts established by Congress shall hold their office during good behavior and they cannot be removed except through the process of impeachment [Article II Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.] . It also stipulates that they shall receive a compensation for their services which shall not be diminished during their continuance in office. 24. Section 72 [Section 72. Judges' appointment, tenure, and remuneration: The Justices of the High Court..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts and the Subordinate Courts of this country under the Government of India Act, 1935 [The existing constitution and organization of constitutional courts in this country is discussed in some detail by Justice Verma in the Second Judges case at paras 444, 445, 446. 444. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges was in the absolute discretion of the Crown, subject only the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown's pleasure. xxxxx xxxxxx xxxxxx xxxxx 445. Then, in the Government of India Act, 1935, provision for the establishment and Constitution of the Federal Court was made in Section 200, while the Constitution of High Courts was provided for in Section 220. xxxxx xxxxxx xxxxxx xxxxx 446. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive, with no specific provision for consultation with the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21(2) respectively.] after the appointment. IV. The salary, allowances and pension payable to Judges of CONSTITUTIONAL COURTS are charged on the Consolidated Fund of India or the Consolidated Fund of the concerned State [Article 112(3)(d)-(3) The following expenditure shall be expenditure charged on the Consolidated Fund of India- ***** ***** ***** ***** ****** (i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court; Article 202(3)(d)-(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State- ***** ***** ***** ***** ****** (d) expenditure in respect of the salaries and allowances of Judges of any High Court;] . Further Under Articles 113(1) [113(1)-So much of the estimates as relates to expenditure charged upon the Consolidated Fund of India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as preventing the discussion in either House of Parliament of any of those estimates.] and 203(1) [203(1)-So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve-mentioned factors is sufficient to make a Judge pliable. A combination of more than one of them makes a Judge more vulnerable. Combination of incompetence and ambition is the worst. The only way an ambitious incompetent person can ascend a high public office is by cringing before men in power. It is said that men in power promote the least of mankind with a fond hope that those who lack any accomplishment would be grateful to their benefactor. History is replete with examples-though proof of the expected loyalty is very scarce. Usually such men are only loyal to power but not to the benefactor. 31. In order to ensure that at least in the matter of appointment of Judges, such aberrations are avoided, democracies all over the world have adopted different strategies for choosing the 'right people' as Judges. The procedures adopted for making such a choice are widely different. To demonstrate the same, it is useful to examine the judicial systems of some of the English speaking countries. 32. The Constitution of the United States of America empowers the President to appoint Judges of the Supreme Court Article II Section 2 The President shall have power.... to.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. In Australia, the highest Federal Court is called the High Court of Australia established Under Section 71 [Section 71. Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.] of the Australian Constitution. It consists of a Chief Justice and other Judges not less than two as the Parliament prescribes. Judges of the High Court are appointed by the Governor General in Council. 35. Neither Canada nor Australia provide the Chief Justice or Judges of the highest court any role in the choice of Judges of the Constitutional Courts. In Australia, unlike the American model, there is no provision in the Constitution requiring consent of the federal legislature for such appointments. 36. England is unique in these matters. It has no written constitution as understood in India, US, Canada and Australia. Till 2006, appointments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment. With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition [Constituent Assembly Debates, 24th May 1949 (Vol. VIII)] . Emphasis supplied) The following are salient features of Dr. Ambedkar's statement: 1. That the judiciary must be both independent and competent. 2. It is dangerous to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointments made to the Supreme Court and the High Courts were made with the concurrence of the Chief Justice of India. (vi) Out of 547 appointments of Judges made during the period January 1, 1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the Chief Justice of India. ] . 40. Article 222 [Article 222-Transfer of a Judge from one High Court to another (1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court (2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix] , authorises the President to transfer High Court Judges in consultation with the CJI. Till 1975, that power was very rarely exercised by the President. In 1976 [During the subsistence of a (partially controversial) declaration of emergency.] the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with respect and consideration. 41. Justice Bhagwati, was entirely in agreement with what has been said by Krishna Iyer in his judgment. [Para 62 of Sankalchand case-Bhagwati, J.] 42. Justice Krishna Iyer spoke for himself and for Justice Fazal Ali. Justice Krishna Iyer, while reiterating the views expressed by this Court in two earlier judgments, i.e. Chandramouleshwar Prasad v. Patna High Court and Ors. (1969) 3 SCC 56 and Samsher Singh v. State of Punjab AIR 1974 SC 2192, opined that although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government............. [Para 115 of Sankalchand case-Krishna Iyer, J.] with a caveat: 115.......... It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word 'consultation' has been used in Article 222 as a matter of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 18th March 1981 to Chief Ministers of various States. Chief Ministers were requested to obtain from all the Additional Judges (working in the concerned High Courts) consent to be appointed as permanent Judges in any other High Court in the country. It also advised Chief Ministers to obtain similar consent letters from persons who have already been or may in future be proposed for initial appointment as Judges of the High Court. The said letter was challenged in S.P. Gupta case on the ground it was a direct attack on the independence of the judiciary which is a basic feature of the Constitution [Para 2 of S.P. Gupta case-Bhagwati, J.] (Para 2). The matter was heard by seven Judges of this Court. Seven separate judgments were delivered. One of the questions before this Court was whether the opinion of CJI be given primacy over the opinion of other constitutional functionaries. Substantially, this Court took the same view as was taken in Sankalchand case [See paras 30 31-Bhagwati, J.; Para 134-Gupta, J., Para 632-Tulzapurkar, J.; Para 726-Desai, J. Paras 890 891-Pathak, J.; Paras 1031 1032-E S Venkataramaiah, J] . 45. Growth of population, increasing awareness of le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Unwritten Criteria in Selecting Judges for the Supreme Court of India, (Oxford University Press, United Kingdom 2014) See Pages 113 to 120] records some instances of such manipulations based on news items published in print media of some reputation by Commentators of well established credentials on Contemporary issues and scholars. It appears that out of 53 appointments of Judges to some High Courts made in 1984-85, 32 were made on the recommendations of acting Chief Justices. It is believed that the senior most Judges of some High Courts (from where the said 32 recommendations had originated) who initiated those recommendations as acting Chief Justices, were made permanent Chief Justices only after they agreed to recommend names suggested by the Executive. A particular Additional Judge was not confirmed as a permanent Judge for several years notwithstanding the recommendations for his confirmation by three successive Chief Justices of the High Court and three CJIs allegedly on the ground that the Judge had delivered a judgment not palatable to the State Government. It appears that the Government headed by Prime Minister V.P. Singh had stalled appointments of 67 persons recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the 'rule of law', essential for the preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with the directive principle of 'separation of judiciary from executive' even at the lowest strata, provides some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of these provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution as a vibrant organism.] . The point of disagreement between the majority and minority is only regarding the mode by which the establishment and continuance of such an independent judiciary can be achieved. 49. Textually, provisions which indicate that the judiciary is required to be independent of the executive are Article 50 [Article 50. Separation of judiciary from executive- The State shall take steps to separate the judiciary from the executive in the public service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing a distinct legislative process only on the ground of 'proved misbehaviour or incapacity'. Such a process is made more stringent by a constitutional stipulation Under Article 124(5) [Article 124(5). Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge Under Clause (4).] that the procedure for investigation and proof of misbehaviour or incapacity of a Judge must be regulated by law. Even after misbehaviour or incapacity is established removal of a Judge is not automatic but subject to voting and approval by a special majority of the Parliament specified Under Article 124(4) [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.] . Prior to the AMENDMENT, the power to appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciary' is the basic feature of our Constitution and if it means what we have discussed above, then the Framers of the Constitution could have never intended to give this power to the executive. Even otherwise the Governments--Central or the State--are parties before the Courts in large number of cases. The Union Executive have vital interests in various important matters which come for adjudication before the Apex Court. The executive--in one form or the other--is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator--between the people and the executive--the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. (per Hon. Verma, J.)-Para 447. When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on primacy is intended to determine, who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner's prize at the end of the debate. The task before us has to be performed with this perception. 450. ............. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Justice of India expressed when he was consulted must be supreme. The Court also laid down guidelines governing the appointment and duration of office of temporary acting judges. The majority decision has been criticized as an extension of the meaning of the word 'consultation'. However, having regard to the earlier experience in India of attempts by the executive to influence the personalities and attitudes of members of the judiciary, and having regard to the successful attempts made in Pakistan to control the judiciary and having regard to the unfortunate results of the appointment of Supreme Court judges of the United States by the President subject to approval by Congress, the majority decision of the Supreme Court of India in the Advocates on Record case marks a welcome assertion of the independence of the judiciary and is the best method of obtaining appointments of integrity and quality, a precedent method which the British could follow such advantage. ---- Lord Templeman All in all, the opinion of the Supreme Court in the third Judges case must be one of the most remarkable rulings ever issued by a supreme national appellate court in the common law world. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its operational reality is perhaps not the best system for securing an independent and efficient judiciary. [ An Independent Judiciary - speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011. As I have said elsewhere 'the process by which a judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a judge's prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and 'lobbying' within the system. ] 59. Two events are part of the record of this Court and can be quoted without attracting the accusation of being irresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government to recommend extension of the term of Respondent 2 for one year; as it amounts to surrender of primacy by jugglery of words. (Emphasis supplied) Even if I choose to ignore the controversial statements made (in the recent past) with regard to the appointment in question in the case, by persons who held high constitutional offices and played some role in the appointment process including former Members of this Court, the judgment leaves sufficient scope for believing that all did not go well with the appointment. It appears to have been a joint venture in the subversion of the law laid down by the Second and Third Judges cases by both the executive and the judiciary which neither party is willing to acknowledge. 61. The grievance of the Petitioners in that case appears to be that .... Collegium was not consulted. .... Unfortunately, there is no precise finding in this regard in the said judgment. On the other hand, the content of para 22 of the judgment leaves me with an uncomfortable feeling that there was some departure from the law perhaps under some political pressure. I wish that I were wrong. 62. The second event is a recommendation made by the then C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered a new principle, but because the credibility of the judiciary has declined. We are, in effect, saying that any arrangement that relies solely on the judiciary has proved untrustworthy. Those challenging the NJAC are relying on the ghost of the 1970s: Do you really want the political class to have a greater say in appointments? Both branches of government are accusing each other of not being worthy of trust. In the process, they have dragged each other down. The problem is that both are right. ]. At least a section of the civil society believes that both are right. The impugned AMENDMENT came in the backdrop of the above-mentioned experience. 64. Independence of the judiciary is one of the basic features of the Constitution. A seven-Judge Bench of this Court in L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261 already held that the power of judicial review of legislative action by the CONSTITUTIONAL COURTS is part of the basic structure of the constitution and the exercise of such important function demands the existence of an independent judiciary. 78 The legitimacy of the power of courts within constitutional democracies to review legislative action has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. (Emphasis supplied) This aspect of the matter is not in issue. None of the Respondents contested that proposition. The text of the Constitution bears ample testimony for the proposition that the Constitution seeks to establish and nurture an independent judiciary. The makers of the Constitution were eloquent about it. Various Articles of the Constitution seek to protect independence of the judiciary by providing appropriate safeguards against unwarranted interference either by the Legislature or the Executive, with the Judges conditions of service and privileges incidental to the membership of the CONSTITUTIONAL COURTS, such as, salary, pension, security of tenure of the office etc. The scheme of the Constitution in that regard is already noticed. [See para 31 (supra)] . Such protections are felt necessary not only under our Constitution, but also several other democratic Constitutions (the details of some of them are already noticed in paras 25 to 27). Such protections are incorporated in the light of the experience and know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years. Mr. B. Pocker Sahib: That for Clause (2) and the first proviso of Clause (2) of Article 103, the following be substituted-(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme Court and the Chief Justices of the High Court in the States and every judge of the Supreme Court. Mr. Mahboob Ali Beig Sahib: That in the first proviso to Clause (2) of Article 103, for the words 'the Chief Justice of India shall always be consulted' the words 'it shall be made with the concurrence of the Chief Justice of India&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any Constitutional amendment void or should such an amendment be destructive of both of them to become void. (6) When can a Constitutional amendment be said to destroy or abrogate either a basic feature of the Constitution or the basic structure of the Constitution? 70. In Bharati case, one of the questions was-whether Article 368 confers unbridled power on the Parliament to amend the Constitution. That question arose in the background of an earlier decision of this Court in I.C. Golak Nath and Ors. v. State of Punjab and Anr. (1967) 2 SCR 762 [Heard by a Bench of 11 Judges and decided by a majority of 6:5] wherein it was held that Article 368 conferred on Parliament a limited power to amend the Constitution. A Constitutional amendment is 'law' within the meaning of Article 13(3)(a) [Article 13(3)(a). law includes any Ordinance, order, bye-law, rule, Regulation, notification, custom or usage having in the territory of India the force of law.] . Any Constitutional amendment which seeks to take away or even abridge any one of the rights guaranteed under Part-III of the Constitution would be violative of the mandate contained Under Article 13(2) [Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. .... and mandate to build a welfare State and egalitarian society. (Per P. Jaganmohan Reddy, J.)-paras 1159, 1162, A sovereign democratic republic. Parliamentary democracy, the three organs of the State... constitute the basic structure. He further held that without either the fundamental rights or directive principles it cannot be democratic republic. Therefore, the power of amendment Under Article 368..... is not wide enough to totally abrogate..... any one of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity . (Per Khanna, J.)-para 1426, the power Under Article 368 does not take within its sweep the power to destroy the old Constitution ...... means the retention of the basic structure or framework of the old Constitution .... it is not permissible to touch the foundation or to alter the basic institutional pattern. According to Justice Khanna, such limitations are inherent and implicit in the word amendment .] Under Article 368 which is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution so as to damage or destroy the basic structure of the Constitution. (Para 15) (Emphasis supplied) By then Justice Chandrachud had already expressed his opinion in Indira Nehru Gandhi v. Raj Narain: (1975) Supp SCC 1 as follows: 663. There was some discussion at the Bar as to which features of the Constitution form the basic structure of the Constitution according to the majority decision in the Fundamental Rights case. That, to me, is an inquiry both fruitless and irrelevant. The ratio of the majority decision is not that some named features of the Constitution are a part of its basic structure but that the power of amendment cannot be exercised so as to damage or destroy the essential elements or the basic structure of the Constitution, whatever these expressions may comprehend. (Emphasis supplied) The above passages, indicate that it is not very clear from Bharati case whether the expression basic structure, basic features and essential elements convey the same idea or different ideas. Therefore, it is necessary to examine some decisions where the legality of the constitutional amendments was considered by this Court subsequent to Bharati case. 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the basic structure of the Constitution. Each one of the Judges opined that the impugned provision violated a distinct basic feature of the Constitution leading to the destruction of the basic structure of the Constitution. 76. In Minerva Mills case (supra), this Court once again was confronted with the problem of basic structure of the Constitution . [Para 13. The question which we have to determine on the basis of the majority view in Kesavananda Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.] By the Constitution (42nd Amendment) Act among other things, Clauses (4) and (5) came to be added in Article 368 and Article 31-C came to be amended by substituting certain words in the original Article. Chief Justice Chandrachud spoke for the majority of the Court and declared Sections 4 and 55 of the Constitution (42nd Amendment) Act to be violative of the basic structure of the Constitution. Dealing with the amendment to Article 368, this Court held: Para 16.......... The majority (in Bharati case) co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounded that: 41........ It is only if the rights conferred by these two Articles are not a part of the basic structure of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to a category of laws described in Article 31-C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament. The Court finally reached the conclusion that the Parts III and IV of the Constitution are like two wheels of a chariot both equally important and held: 56........ To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between the fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. (Emphasis supplied) This Court concluded that the amendment to Article 31C is destructive of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution. The Amendment must, therefore, be upheld on its own merits.] . Such a conclusion was reached on the basis of the logic- 29. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law.... This Court held that though the protection of Articles 14 and 19 is totally abrogated, the withdrawal or abrogation of such protection does not necessarily result in damage or destruction of the basic structure of the Constitution. In other words, this Court held that if in the process of seeking to achieve a larger constitutional goal of removing social and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution lies in the identification of some concepts which are beyond the words of any particular provision but pervade the scheme of the Constitution. Some of these concepts may be so important and fundamental as to qualify to be called essential features of the Constitution or part of the basic structure of the Constitution therefore not open to the amendment. This Court specified the process by which the basic features of the Constitution are to be identified. The Court held: 23...Therefore, it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Articles 14, 19 and 21. Some of these principles may be so important and fundamental, as to qualify as essential features or part of the basic structure of the Constitution, that is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure-rule of law, separation of powers-the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure. (Emphasis supplied) 82. An analysis of the judgments of the abovementioned cases commencing from Bharati case yields the following propositions: (i) Article 368 enables the Parliament to amend any provision of the Constitution; (ii) The power Under Article 368 however does not enable the Parliament to destroy the basic structure of the Constitution; (iii) None of the cases referred to above specified or declared wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such rights with reference to minorities. 84. The abrogation of a basic feature may ensue as a consequence of the amendment of a single Article in the cluster of Articles constituting the basic feature as it happened in Minerva Mills case and Indira Nehru Gandhi case. 85. On the other hand, such a result may not ensue in the context of some basic features. For example, Article 326 prescribes that election to Lok Sabha and the Legislative Assemblies shall be on the basis of adult suffrage. Adult suffrage is explained in the said Article as: ...that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. One of the components is that the prescription of the minimum age limit of 18 years. Undoubtedly, the right created Under Article 326 in favour of citizens of India to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such COMPONENT; (iii) the process prescribed under unamended Articles 124 and 217, as interpreted by this Court in the Second and Third Judges cases, is a basic feature and was so designed by framers of the Constitution for ensuring independence of the judiciary, by providing for primacy of the opinion of the CJI (Collegium); and not of the opinion of the President (the Executive); (iv) the AMENDMENT dilutes such primacy and tilts the balance in favour of the Executive, thereby abrogating a basic feature, leading to destruction of the basic structure. 90. The prime target of attack by the Petitioners is Section 2(a) of the AMENDMENT by which the institutional mechanism for appointment of judges of constitutional courts is replaced. According to the Petitioners, the AMENDMENT is a brazen attempt by the Executive branch to grab the power of appointing Judges to CONSTITUTIONAL COURTS. Such shift of power into the hands of Executive would enable packing of the CONSTITUTIONAL COURTS with persons who are likely to be less independent. 91. It is further argued that the principles laid down in the Second and Third Judges cases are not based purely on the interpretation of the text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution. The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of: 1. The Chief Justice of India Chairman 2. Two senior most judges of the Supreme Court: Member 3. The Union Minister for Law and Justice: Member 4. One eminent person nominated by the President after consulting the CJI Member The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary. ] . If really Parliament wanted to change in the mechanism for the selection of the members of the superior judiciary, the model recommended by the Justice M.N. Venkatachaliah Commission could well have been adopted. According to Mr. Nariman the model identified by Venkatachaliah Commission is more suitable for preservation of independence of the judiciary than the model adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive process of the Constitution as it stood prior to the AMENDMENT disturbed such balance. The AMENDMENT only seeks to restore such balance and therefore cannot be said to be destructive of the basic structure of the Constitution. (iv) That the law laid down by this Court in Second and Third Judges case is no more relevant in view of the fact that the text of the Constitution which was the subject matter of interpretation in the said cases stands amended. In the light of well settled principles of interpretation of statutes the law laid down in those two cases is no more a good law. It is further argued that in the event this Court comes to the conclusion that the law laid down in the abovementioned two judgments has some relevance for determining the constitutional validity of the AMENDMENT and also the correctness of the principles laid down in those judgments requires reconsideration by a Bench of appropriate strength. According to the Attorney General and other learned Counsel for Respondents, the abovementioned two judgments are contrary to the text of the Constitution as it stood then and in complete disregard of the constitutional history and background of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard against such possibility. Any two of the three Judges can stall such an effort, if ever attempted by the Executive. (vii) The fact that a Commission headed by Justice M.N. Venkatachaliah made certain recommendations need not necessarily mean that the model suggested by the Commission is the only model for securing independence of the judiciary or the best model. At any rate, the choice of the appropriate model necessarily involves a value judgment. The model chosen by the Parliament in exercise of its constituent powers cannot be held to be unconstitutional only on the ground that in the opinion of some, there are better models or alternatives. Such a value judgment is exclusively in the realm of the Parliament's constituent powers. It is also argued that the mechanism for selection of members of the constitutional courts as expounded in the Second and the Third Judges cases, even according to Mr. Nariman's opinion is not the best. Mr. Nariman is on record stating so in one of the books authored by him Before Memory Fades: An Autobiography [Fali S. Nariman, Before Memory Fades-An Autobiography, p. 389- If there is one important case decided by the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... causes brought before them expeditiously and consistent with applicable principles of jurisprudence, generate confidence, in litigants and the polity that they indeed dispense justice. Whether the appointment process prior to the AMENDMENT yielded such appointments has been deeply contentious. As submitted by the learned Attorney General, the history of appointments to CONSTITUTIONAL COURTS in our Republic could be divided into two phases-pre and post Second Judges case. No doubt during both phases, the appointment process yielded mixed results, on the index of both independence and efficiency. Some outstanding and some not so outstanding persona came to be appointed in both phases. Allegations of seriously unworthy appointments abound but our system provides for no mechanism for audit or qualitative analysis. Such systemic deficit has pathological consequences. 95. Parliament representing the majoritarian will was satisfied that the existing process warrants change and acted in exercise of its constituent power and concomitant discretion. Such constituent assessment of the need is clearly off limits to judicial review. Whether curative ushered in by the AMENDMENT transgresses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in non investiture of absolute power in the President (Executive) to choose and appoint judges of CONSTITUTIONAL COURTS. That feature is not abrogated by the AMENDMENT. The Executive may at best only make a proposal through its representative in the NJAC, i.e. the Law Minister. Such proposal, if considered unworthy, can still be rejected by the other members of the NJAC. The worth of a candidate does not depend upon who proposes the name nor the candidate's political association, if any, should be a disqualification. ...,even party men can be fiercely independent after being appointed judges, as has been proved by some judges who were active in politics. Justice K.S. Hegde served as a member of Rajya Sabha from 1952 to 1957 and was elevated as a High Court judge directly from Rajya Sabha. Though he was a congress MP, he proved to be so independent that he was superseded in 1973 in the appointment of the CJI by his own party's government. Justice Tekchand was also a member of Rajya Sabha before becoming a judge. He was appointed when he was a sitting MP, but he proved to be a fine judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the people is entrusted to the legislative and executive branches. Such entrustment is predicated on the structural and empirical assumption that legislators chosen periodically would strive to protect the liberties of their only masters-the people . This is for two reasons operating in tandem. They are the obligation to discharge the trust reposed and the fear of losing the glory of being the chosen representative. An in built possibility in the system of periodic elections. 102. To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved. Eminent constitution jurist and teacher Laurence H. Tribe has the following to say in the context of the American experience. No one should assume that the Supreme Court need always strike down laws and executive actions in order to protect our liberties. On the contrary, sometimes the Court best guarantees our rights by deferring to, rather than overruling, the political branches. When the Supreme Court, from 1900 to 1937, struck down dozens of child labor laws, minimum wage laws, working condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the only mode of securing independence of judiciary for protection of liberties. Consequently, the assumption that primacy of the Judicial Branch in the appointments process is an essential element and thus a basic feature is empirically flawed without any basis either in the constitutional history of the Nation or any other and normatively fallacious apart from being contrary to political theory. 104. I now deal with the submission that presence of the law minister in the NJAC undermines independence of judiciary. According to the Petitioners, the presence of a member of the Executive invariably has the effect of shifting the power dynamics. The presence of the Law Minister in the NJAC which confers 1/6 of the voting power per se undermines the independence of the judiciary. The submission is untenable. The Executive with a vast administrative machinery under its control is capable of making enormous and valuable contribution to the selection process. The objection is justified to some extent on the trust deficit in the Executive Branch in the constitutional sense [Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2 of Chapter 1 Approaches to Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery aspect of the administration of the Nation and lives of its people. In this context, to hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy whose models were examined by the Constituent Assembly and none other were brought to our notice either. Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature. The Attorney General is right in his submission that exclusion of the Executive Branch is destructive of the basic feature of checks and balances-a fundamental principle in constitutional theory. 105. That takes me to the second provision which is under challenge. Article 124A(1)(d) which stipulates that the NJAC should consist of two eminent persons [Article 124A. National Judicial Appointments Commission.-(1) There shall be a Commission to be kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the court-room. As Bentham has observed: In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity. Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the choice of making any particular amendment must be left to it. Questions of policy cannot be debated in this Court. The possibility of abuse of a power is not the test of its existence. In Webb v. Outrim [1907] A.C. 81, Lord Hobhouse said, If they find that on the due construction of the Act a legislative power falls within Section 92, it would be quite wrong of them to deny its existence because by some possibility it may of be abused, or limit the range which otherwise would be open to the Dominion Parliament . With reference to the doctrine of implied prohibition against the exercise of power ascertained in accordance with ordinary rules of construction, Knox C.J., in the Amalgamated Society of Engineers v. The Adelaide Steamship Co. Limited 129 C.L.R. 151, said, It means the necessity of protection against the aggression of some outside and possibly hostile body. It is based on distrust, lest powers, if once conceded to the least degree, might be abused to the point of destruction. But possible abuse of power is no reason in British law for limiting the natural force of the language creating them. However, it was a dissenting opinion. But this Court in I.R. Coelho (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;. The Committee contemplated Under Article 124-A(1)(a) should prepare a panel of three members for each of the two categories of the nominees (for eminent persons)-in all a panel of six persons. Such panel should be placed before the full house of the Supreme Court for voting. Nominees securing the highest vote in each of the two categories should eventually be nominated as eminent members of the NJAC. Such procedure would still preserve the choice of eminent persons primarily with the Committee contemplated Under Article 124-A, while incorporating sufficient safeguard against possible abuse of the power by the Committee. 109. The third provision whose validity is under attack is Article 124B(c), which obligates NJAC to ensure that the person recommended is of ability and integrity. The challenge is on the ground that the AMENDMENT does not lay down any guidelines to be followed by the NJAC for assessing ability and integrity. Even in the absence of any express declaration, such an obligation is inherent and implied, having regard to functional responsibilities entrusted to the NJAC. The precision is only an abundanti cautela. Perhaps prompted by certain bad experiences of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Co. Law Board and subsequent decisions for adjudging the validity of administrative action can have no application for testing the satisfaction of the President Under Article 356. It must be remembered that the power conferred by Article 356 is of an extraordinary nature to be exercised in grave emergencies and, therefore, the exercise of such power cannot be equated to the power exercised in administrative law field and cannot, therefore, be tested by the same yardstick.... 255...The exercise of the power Under Article 356 is a constitutional exercise of the power. The normal subjective satisfaction of an administrative decision on objective basis applied by the courts to administrative decisions by subordinate officers or quasi-judicial or subordinate legislation does not apply to the decision of the President Under Article 356. 373....So far as the approach adopted by this Court in Barium Chemicals (2002) 8 SCC 481 is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitutional power Under Article 356. Having regard to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the three judicial members of the NJAC. Such a provision is violative of the basic structure of the Constitution. It is further argued that though the provision is not part of the AMENDMENT, since the AMENDMENT and the ACT are made simultaneously and the ACT being complementary to the AMENDMENT, the ACT must be understood to be a part of the design of the AMENDMENT and, therefore, Section 6(6) is required to be struck down on the ground it is violative of the basic structure of the Constitution. 115. The Respondents submitted that Section 6(6) of the ACT only prescribes a special majority for sanctifying the recommendations of NJAC. Prescription of special majorities in law is a known phenomenon. The Constitution itself prescribes special majorities in certain cases. For example, Article 368(2) prescribes a special majority for amending the Constitution. Similarly, Article 124(4) prescribes a special majority for the impeachment of judges of the CONSTITUTIONAL COURTS. It is argued that the Petitioners presumption that only Government could take advantage of the prescription Under Section 6(6) is totally baseless. In a given case it may happen that two judicial members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion Government. 118. Repelling the contention, this Court held that secularism is also one of the basic features of the Constitution. The conscious inaction of the various State Governments and consequential failure to prevent certain activities which in the opinion of the Petitioners (endorsed by this Court by the judgment) would ultimately result in the destruction of the secular fabric of the Constitution has certainly a relevant consideration for the exercise of extraordinary powers vested in the President Under Article 356. Because Article 356 obligates the President to resort to the action contemplated thereunder only if the President is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Failure of the State Government to prevent activities which are bound to destroy the communal harmony between people following different religions is certainly inconsistent with the constitutional obligation of the State to upheld the Constitution of which secularism is a basic feature. S.R. Bommai case is no authority for the proposition that the validity of a legislation is amenable to ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accountability of the efficiency of the legal system. I only part with this case recollecting the words of Macaulay- reform that you may preserve [Thomas Babington Macaulay's address on 2nd March 1831 in the House of Commons on Parliamentary Reforms] . Future alone can tell whether I am rightly reminded of those words or not. Madan B. Lokur, J. 1. I have had the benefit of going through the draft order prepared by my learned brothers Justice Khehar, Justice Chelameswar and Justice Kurian Joseph. While endorsing the view expressed by my learned brothers Justice Khehar and Justice Chelameswar, I would like to add a few words on the procedural aspect of dealing with an application for recusal. 2. Justice Khehar has mentioned in Paragraph 17 of the draft order as follows: The decision to remain as a member of the reconstituted Bench was mine, and mine alone. 3. In my respectful opinion, when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I would prefer not to join that decision. In the first place, giving or not giving reasons was not an issue before us. That reasons are presently being given is a different matter altogether. Secondly, the giving of reasons is fraught with some difficulties. For example, it is possible that in a given case, a learned judge of the High Court accepts an application for his/her recusal from a case and one of the parties challenges that order in this Court. Upon hearing the parties, this Court comes to the conclusion that the reasons given by the learned judge were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hear the case even though he/she genuinely believes that he/she should not hear the case? 8. The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes.' 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 alternatives discussed and debated and then to consider and analyze the solution given by the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. This is important for another reason-some of the 'mistakes' made before Constituent Assembly accepted the Constitution of India, have been revived and enacted, even though the Constituent Assembly debated and rejected them. 5. Section 101 of the Government of India Act, 1919 provided for the appointment of the Chief Justice and judges of the High Court and Section 102 provided for their tenure. It was provided that the appointment shall be made by His Majesty and the judge shall hold office 'during His Majesty's pleasure.' Since the appointment process and the tenure of a judge depended upon the Crown's pleasure, perhaps the issue of the independence of the judiciary was not the subject of discussion in India. In any event, nothing was pointed out in this regard one way or the other during the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Islamic Jurisprudence, a convention which is termed as Urf has a binding force on the basis of various Islamic sources, it has been a consistent practice which has acquired the status of convention during pre-partition days of India as well as post-partition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases. The practice of consultation of the Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts Act [1911] as well as under the Government of India Act 1915, though the appointment of Judges of superior Courts in India was a matter of pleasure vested in the Crown. The recommendations of the Chief Justices even in those days were accepted as a matter of course. Sapru Committee 8. The issue of the appointment of judges (for Independent India) first came up for discussion (as it appears) before the Sapru Committee. A Report prepared by this Committee in 1945 dealt with the Legislature, the Executive and the Judiciary in Chapter V thereof. The relevant paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. 261. Our main object in making these recommendations is to secure the absolute independence of the High Court and to put them above party politics or influences. Without some such safeguards, it is not impossible that a Provincial Government may under political pressure affect prejudicially the strength of the High Court within its jurisdiction or the salary of its Judges. If it is urged that the High Court and the Government concerned will be more or less interested parties in the matter, the intervention of the Supreme Court and of the Head of the State would rule out all possibility of the exercise of political or party influences. The imposition of these conditions, may, on a superficial view, seem to be inconsistent with the theoretical autonomy of the Provinces, but, in our opinion, the independence of the High Court and of the judiciary generally is of supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the well-being of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province. 268. We now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur 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 288] Ad hoc Committee on the Supreme Court 10. After the Constituent Assembly was formed, an Ad hoc Committee on the Supreme Court was set up which presented its Report of 21st May, 1947 to the Constituent Assembly. Paragraph 14 of the Report is of relevance to the issue of appointment of judges of the Supreme Court. It accepted, in principle, the qualification for the appointment of judges to the Supreme Court, as mentioned in the Government of India Act, 1935 but found it inexpedient 'to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union.' It made two suggestions in the appointment procedure, both of which necessitated consultation between the President and the Chief Justice of India and the opinion of a panel of 11 (eleven) persons comprising of, inter alia, some Chief Justices of the High Courts, some members of both the Houses of the Central Legislature and some law officers of the Union. It was proposed that the executive be k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment 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 13. On 30th May, 1947 the Constitutional Advisor to the Constituent Assembly, Sir B.N. Rau submitted a Memorandum on the Union Constitution and Draft Clauses. The Memorandum provided in Chapter VI (The Union Judicature) that there shall be a Supreme Court 'with powers and jurisdiction as recommended by the ad hoc Committee on the Union Judiciary.' [B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 486]. In the draft clauses of the Union Constitution appended to the Memorandum, it was provided that every judge of the Supreme Court shall be appointed by the President with the approval of not less than 2/3rd of the members of the Council of State. [B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 519] In this regard, the Law Commission of India notes in its 80th Report as follows: The Constitutional Adviser, in his memorandum dated May 30th, 1947 suggested that the appointment of Judges sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also judges of the High Courts as may be necessary for the purpose. [NOTE-The ad hoc Committee on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Federation. They have suggested two alternatives, both of which involve the setting up of a special panel of eleven members. According to one alternative, the President, in consultation with the Chief Justice, is to nominate a person for appointment as puisne judge and the nomination has to be confirmed by at least seven members of the panel. According to the other alternative, the panel should recommend three names, out of which the President, in consultation with the Chief Justice, is to select one for the appointment. The provision suggested in the above clause follows the decision of the Union Constitution Committee.] [B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 583] Again, the executive had no role to play in the appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 express their views through comments and suggestions. The views expressed by the Conference of Chief Justices (the Chief Justice of the Federal Court and Chief Justices of the High Courts), the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas are important since they explain the interplay between the Executive and the Judiciary in the matter of appointment of judges. 19. These views also make it clear that almost immediately after Independence (or thereabouts) the executive began to interfere in the appointment of judges of the High Courts. This interference by the executive (or in the present day language, the political executive) is the genesis of the problem that we are grappling with even today. 20. The Conference of Chief Justices was held on 26th and 27th March, 1948 to consider the proposals in the Draft Constitution concerning the judiciary. A Memorandum representing the views of the Federal Court and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l control and dominate the governmental machinery in the years to come. In making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent, incorruptible and efficient judiciary has been steadily kept in view. The Memorandum specifically pointed out (sadly) that after 15th August, 1947 the appointment of judges to the High Courts, on merit, was not always assured in view of the practice followed (by some States). Also, recommendations by the Chief Justice of the High Court were not always forwarded to the Central Government, implying thereby that some other recommendations were forwarded. In this regard it was said: Discussions at the conference revealed that the procedure followed after 15th August 1947 does not in practice always ensure appointment being made purely on merit without political, communal and party considerations being imported into the matter. Though it is acknowledged readily enough in principle that such considerations should not influence the appointment, this is not always kept in view in working the procedure in practice. The Chief Justice sends his recommendation to the Premier who consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of a judge of the High Court could also be made by the President (in an individual capacity). In the event of such a proposal (by the President), there was no likelihood of the Chief Justice of India not accepting it and, therefore, the concurrence of the Chief Justice of India was not required to be incorporated in the Constitution. It was, therefore, noted: We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President making a different proposal, and no express provision need, it seems to us, be made in that behalf. The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court, and Article 103(2) may also be suitably modified.... 24. The significance of this Memorand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;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 the need for the inclusion of minority representatives in the Union and State Cabinets........ They considered that it would be sufficient if, following the precedent furnished by the Government of India Act of 1935, an Instrument of Instructions was drawn up, to be included as a schedule to the Constitution, enjoining the Governors and the President as far as practicable to include members of the minority communities in their Ministries. In the Draft Constitution of February 1948, however, an Instrument of Instructions for this purpose was drawn up only for Governors but not for the President. Possibly in order to rectify this omission, the Drafting Committee decided, on further consideration of the articles relating to the Council of Ministers, that an Instrument of Instructions for the President would also be necessary [Page 373-374] 26. Apparently, pursuant to this, the Drafting Committee gave a notice in October 1948 of an amendment to Article 62 proposing to add t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult the Advisory Board so constituted in making appointment by virtue of the powers conferred on him by this Constitution to any other office under the Government of India or the Government of a State other than the office of Governor of a State, if Parliament by resolutions passed by both Houses recommend to the President that the Advisory Board shall be consulted in making appointment to such office. 6. (1) In making appointment of judges of the Supreme Court and of the High Courts, the President shall before obtaining the advice of the Advisory Board shall follow the following procedure: (a) In the case of appointment of the Chief Justice of India, he shall consult the judges of the Supreme Court and the Chief Justices of the High Courts within the territory of India except the States for the time being specified in Part III of the First Schedule. (b) In the case of appointment of a judge of the Supreme Court other than the Chief Justice of India, he shall consult the Chief Justice of India and the other judges of the Supreme Court and also the Chief Justices of the High Courts within the territory of India except the States for the time being specified in Part III o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 came to be designated) acting on his/her own and yet the President not having 'unfettered discretion' in the appointment of judges. 31. All the proposals, including those given by the Conference of Chief Justices, the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, were considered by the Drafting Committee and on 4th November, 1948 the second draft of the Constitution was introduced in the Constituent Assembly by Dr. B.R. Ambedkar, Chairman of the Drafting Committee. However, the decision of the Drafting Committee taken in October, 1948 was not incorporated in the Draft Constitution. Therefore, Dr. Ambedkar moved an amendment in the Constituent Assembly on 31st December, 1948 to insert Clause (5)a in Article 62 of the Draft Constitution. The amendment proposed by Dr. Ambedkar reads as follows: That after Clause 5 of Article 62 the following new clause be inserted: (5)a In the choice of his Ministers and the exercise of his other functions under this Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 list. He also moved for the deletion of Schedule IV from the Draft Constitution. Explaining the move to delete Schedule IV from the Draft Constitution it was stated that the matter should be left entirely to convention rather than be put in the body of the Constitution as a Schedule in the shape of an Instrument of Instructions and that there is a fairly large volume of opinion which favours that idea. 36. Dr. Ambedkar added as follows: Sir, with regard to the Instrument of Instructions, there are two points which have to be borne in mind. The purpose of the Instrument of Instructions as was originally devised in the British Constitution for the Government of the colonies was to give certain directions to the head of the States as to how they should exercise their discretionary powers that were vested in them. Now the Instrument of Instructions were effective in so far as the particular Governor or Viceroy to whom these instructions were given was subject to the authority of the Secretary of State. If in any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate of Clause (5)a] had this to say, while emphasizing constitutional obligations and constitutional conventions: Every Constitution, so far as it relates to what we call parliamentary democracy, requires three different organs of the State, the executive, the judiciary and the legislature. I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the State. Consequently, it is to be presumed that those who work the Constitution, those who compose the Legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution. Similarly, if the executive is honest in working the Constitution, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two, conventions were the tidiest and the simplest way of limiting Executive authority. [Indian Constitution-Cornerstone of a Nation, pages 138-139] Transposing this to the relationship between the Judiciary and the Executive, it is quite clear that Dr. Ambedkar and indeed the Constituent Assembly was of the view that constitutional obligations and constitutional conventions must be respected, unwritten though they may be. And, one of these constitutional obligations and constitutional conventions is that the view of the judiciary must be respected by the executive not only with respect to judicial decisions but also in other matters that directly impact on the independence of the judiciary. Debates on 23rd and 24th May, 1949 39. It is important to appreciate that the Constituent Assembly Debates (for short the CAD) to which our attention was drawn refer to the appointment of a judge of the Supreme Court and not specifically to the appointment of a judge of a High Court. But the sum and substance of the debate is equally applicable to the appointment of a judge of a High Court. 40. On 23rd and 24th May, 1949 three significant amendments to Article 103(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed. It has been very emphatically stated in this memo that it is absolutely necessary to keep them above political influences. No doubt, it is said in this procedure that the Governor of the State also may be consulted; but that is a matter of minor importance. It is likely that the Governor may also have some political inclinations. Therefore, my amendment has omitted the name of the Governor. That the judiciary should be above all political parties and above all political consideration cannot be denied. I do not want to enter into the controversy at present, which was debated yesterday, as to the necessity for the independence of the judiciary so far as the executive is concerned. It is a matter which should receive very serious consideration at the hands of this House and I hope the Honourable the Law Minister will also pay serious attention to this aspect of the question, particularly in view of the fact that this recommendation has been made by the Federal Court and the Chief Justice of the other High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requirement of the concurrence of the Chief Justice of India, an impartial person. 44. But what is more significant is that Mr. B. Pocker Sahib and Mr. Mahboob Ali Baig Sahib adverted only to a recommendation for the appointment of a judge by the President-hence the necessity of concurrence by the Chief Justice of India. They did not, quite obviously, advert to the recommendation for the appointment of a judge by the Chief Justice of India. 45. It is in this background of divergence of perceptions that the speech of Dr. Ambedkar on 24th May, 1949 should be appreciated. Replying to the debate, Dr. Ambedkar stated: 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition. [http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm] 46. Dr. Ambedkar was quite clear that there could be no difference of opinion that the judiciary should be independent of the executive, yet competent. He was of the view that it would be 'dangerous' to leave the appointment of judges to the President without any reservation or limitation, that is to say, merely on the advice of the executive of the day. Dr. Ambedkar seems to have lost sight of the existence of the Instrument of Instructions (or it was 'given up' by him) since that document mentioned the advice of the Advisory Board and not the executive and also that that document enabled the President to act on his/he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the debate 'on acceptance of office by members of the judiciary after retirement' Dr. Ambedkar observed that the judiciary is very rarely engaged in deciding issues between citizens and the Government. He said: The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently the chances of influencing the conduct of a member of the judiciary by the Government are very remote, and my personal view, therefore, is that the provisions which are applied to the Federal Public Services Commission have no place so far as the judiciary is concerned. [http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm] 51. Times have changed dramatically since then and far from disputes 'very rarely' arising between citizens and the Government, today the Government is unashamedly the biggest litigant in the country. It has been noticed in Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441 (Nine Judges Bench) that: No one can deny that the State in the present day has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 event, the political executive had no role or a very little role to play in the decision-taking process. Notwithstanding this, the political executive did interfere in the appointment process as evidenced by the Memorandum prepared in the Conference of Chief Justices by, inter alia, recommending persons for appointment as judges of the High Court. Resultantly, the appointment of judges to the High Courts was not always on merit and sometimes without the recommendation of the Chief Justice of the High Court; (4) A constitutional convention existed that the appointment of judges should be made in conformity with the views of the Chief Justice of India; (5) The proposal for the appointment of a judge of the Supreme Court or a High Court could originate from the President (although it never did) or the Chief Justice of India and regardless of the origin, it would normally be accepted. However, the possibility of the President giving in to political or party pressures was not outside the realm of imagination. (6) Hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'Reforms of the Judicial Administration'] It must be noted here that the LCI travelled through the length and breadth of the country for about one year and examined as many as 473 witnesses from a cross-section of society before giving its Report. It also adopted a novel procedure of co-opting two members from the States that were visited so as to understand the local problems. The monumental and authoritative work can only be admired. 57. The LCI observed that the Constitution endeavored to put judges of the Supreme Court 'above executive control'. It very specifically acknowledged the importance of safeguarding the independence of the judiciary and observed that 'It is obvious that the selection of the Judges constituting a Court of such pivotal importance to the progress of the nation must be a responsibility to be exercised with great care.' [Chapter 5 paragraph 5] 58. Thereafter three central issues were adverted to-(1) Communal and regional considerations had prevailed in making the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciary give in recent years. This criticism has been made by Supreme Court Judges, High Court Judges, Retired Judges, Public Prosecutors numerous representatives, associations of the Bar, principals and professors of Law Colleges and very responsible members of the legal profession all over the country. One of the State Governments had to admit that some of the selections did not seem to be good and that careful scrutiny was necessary. The almost universal chorus of comment is that the selections are unsatisfactory and that they have been induced by executive influence. It has been said that these selections appears to have proceeded on no recognizable principle and seem to have been made out of consideration of political expediency or regional or communal sentiments. Some of the members of the Bar appointed to the Bench did not occupy the front rank in the profession either in the matter of legal equipment or of the volume of their practice at the bar. A number of more capable and deserving persons appear to have been ignored for reasons that can stem only from political or communal or similar grounds. Equally forceful or even more unfavourable comments have been made in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone 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 Report observes that extraneous factors have influenced the appointments and that there seems to be canvassing for appointment as a judge of the High Court: This indeed is a dismal picture and would seem to show that the atmosphere of communalism, regionalism and political patronage, have in a considerable measure influenced appointments to the High Court Judiciary. Apart from this very disquieting feature, the prevalence of canvassing for judgeships is also a distressing development. Formerly, a member of the Bar was invited to accept a judgeship and he considered it a great privilege and honour. Within a few years of Independence, however, the judgeship of a High Court seems to have become a post to be worked and canvassed for. [Chapter 6 paragraph 14 and 15] 66. Based on its findings, the LCI reached the following conclusions, amongst others: (8) Many unsatisfactory appointments have been made to the High Courts on political regional and communal or other grounds with the result that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, these cases also were referred to the Chief Justice of India. In some of these he accepted the proposal made by the Chief Minister and in others he accepted the advice or the suggestion received from the Chief Justice of the High Court. But we on our part had his advice along with that of the Chief Justice of the High Court concerned and of the Chief Minister concerned. So, these cases do not even come to five per cent. But even there, so far as we are concerned, out of these 211 cases, as I said, except in one case where there was a difference of opinion between the Chief Minister and the Chief Justice, we had accepted in 210 cases the advice of the Chief Justice of India. [page 288-289] 70. On the next day, that is, 25th November, 1959 Shri A.K. Sen, Minister of Law reiterated the statement made by the Home Minister. He clarified that in one case where there was a difference of opinion, the Government accepted the advice of the Chief Justice of the High Court (not the Chief Minister) rather than the advice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 'collegium system' of appointment of judges] 77. These recommendations were incorporated by the LCI in its summary of recommendations. I am concerned with the following recommendation: (32) The Chief Justice of India, while recommending the name of a person for appointment as a Judge of the Supreme Court should consult his three senior most colleagues and should in the communication incorporating his recommendation specify the result of such consultation and reproduce the views of each of his colleagues so consulted regarding his recommendation. The role of these colleagues would be confined to commenting on the recommendation of the Chief Justice. Such consultation would minimize possible arbitrariness or favoritism. [Chapter 9] Appointment of judges of the High Court 78. In relation to the appointment of judges of the High Court, it was generally observed by the LCI in Chapter 6 of the Report that the prevailing impression was that their appointment 'has not been al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 effort should be made to select the best person. The number of such appointments should be as few as possible. (12) On the question whether the role of the Chief Minister should be that only of commenting on the name recommended by the Chief Justice, or whether the Chief Minister can also suggest another name, a decision has already been taken and nothing further need be said in the matter. [Chapter 9] 82. Generally speaking, the LCI was of the view that the constitutional scheme of appointment of judges was basically sound, had worked satisfactorily and did not call for any radical change, though some aspects needed improvement. The recommendations mentioned above were made in that light. (c) 121st Report-31.7.1987 A new forum for judicial appointments 83. It is important to note that this Report was prepared after the decision of this Court in S.P. Gupta. In its 121st Report, the LCI noted that over the last four decades, mounting dissatisfaction has been voiced over the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 with the result that for a number of years Courts have been working with about 50% of their strength. 88. After a detailed discussion of the matter, it was decided to appoint a committee of Chief Justices to thoroughly examine the issues raised and a Resolution was passed appointing such a committee. The composition of the committee called the Arrears Committee changed over a period of time but finally it consisted of Chief Justice V.S. Malimath (Kerala High Court), Chief Justice P.D. Desai (Calcutta High Court) and Chief Justice Dr. A.S. Anand (Madras High Court). The Arrears Committee gave its Report in two volumes to the Conference of Chief Justices held between 31st August and 2nd September, 1990 which accepted the Reports, subject to a few modifications. 89. Chapter 5 of Volume 2 of the Report deals with the unsatisfactory appointment of judges to the High Courts. It was observed by the Arrears Committee that unsatisfactory appointments have contributed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Committee, therefore, suggested amendment of the Constitution, as a guarantee for ensuring the quality, that an appointment to the High Court must have the concurrence of the Chief Justice of India and should not be made merely in consultation with him. An amendment was suggested to Article 217(1) of the Constitution on those lines. [Paragraphs 5.5 and 5.6] 92. It was concluded that for the judicial system to function effectively and for the people to have faith and confidence in it, the appointment of judges should be made only on considerations of merit, suitability, integrity and capability and not on political expediency or regional or communal sentiments. It was observed in this regard as follows: This Committee is of the firm view that to ensure that the judicial system functions effectively and to maintain both the quality and quantity of judicial work, as well as the faith and confidence of the public, the appointments be made only on cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elayed 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 undesirable influence of extra-constitutional authorities in the appointment of judges. The appointment process therefore was undermined leaving the executive to appoint judges not on excellence but on influence. It was observed as follows: There are cases that even where the Chief Justice of India on being consulted, agrees with the recommendation made by the Chief Justice of the concerned High Court which is also concurred to by the Governor of the State and forwards his recommendation to the Union Law Minister, appointments are either not made or made after inordinate delay. Sometimes, the Union Law Minister even adopts the pick and choose policy to appoint Judges out of the list of selectees recommended by the Chief Justice of the High Court duly concurred in by the Chief Justice of India or makes appointments by disturbing the order in which the recommendations have been made. The malady has become more acute in view of the polit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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 take away the independence of the judiciary, contrary to the intention of the Constituent Assembly, there was no option but to have a fresh look into the entire issue of appointment of judges and that eventually led to the issue being referred in the early 1990's to a Bench of 9 (nine) judges of this Court. Quite clearly, the executive had made a mess of the appointment of judges, taken steps to subvert the independence of the judiciary, gone against the grain of the views of the Constituent Assembly and acted in a manner that a responsible executive ought not to. 97. Post Independence till the early 1990s, the judiciary saw the slow but sure interference of the executive in the appointment of judges. This was in the form of the executive recommending persons to the Chief Justice of the High Court for appointment as a judge of the High Court. There were occasions when the executive completely by-passed the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 footing as civil courts. I can only express the hope that this long overdue reform will soon be introduced in the States. [http://parliamentofindia.nic.in/ls/debates/vol11p12. htm] 101. Providing for an independent judiciary is not enough-access to quality justice achieved through the appointment of independent judges is equally important. It has been said of the judges during apartheid in South Africa: Now during apartheid judges had the formal guarantees of independence-life tenure, salary, administrative autonomy-that judges in the United States of America, Canada, the United Kingdom, New Zealand or Australia had. It is in seeing why it was the case that apartheid-era judges for the most part lacked independence even though they had its formal trappings that we see that judicial independence is also a kind of dependence; it depends on something positive-the judicial pursuit of the justice of the law. One has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India.' [Paragraph 27] Justice Venkataramiah, however, was of the view that the independence of the judiciary is relatable only to post-appointment and that 'It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge.' [Paragraph 1033] (3) In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' in Article 217 and Article 124 of the Constitution meant that 'primacy' in the appointment of judges must rest with the Chief Justice of India. [I entirely agree with Justice Chelameswar when he says that the Second Judges case did not hold that consultation means concurrence.] The evolution of the collegium system and a Judicial Commission will be discussed a little later, although it must be noted that the seeds thereof were sown (apart from the Reports of the LCI) in the First Judges case. 107. I do not think it necessary to further discuss the First Judges case since it has been elaborately considered by Justice Khehar. Subhash Sharma's case 108. In a writ petition filed in this Court praying for filling up the vacancies of judges in the Supreme Court and several High Courts of the country, a three judge Bench was of the view that the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief 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 Chief Justice of India in the constitutional scheme had been denuded in the First Judges case. Keeping all these factors in mind, particularly the functioning of the appointment process and the acknowledgement of the Union Government that a change was needed, it was observed: The view taken by Bhagwati, J., Fazal Ali, J., Desai, J., and Venkataramiah, J., to which we will presently advert, in our opinion, not only seriously detracts from and denudes the primacy of the position, implicit in the constitutional scheme, of the Chief Justice of India in the consultative process but also whittles down the very significance of consultation as required to be understood in the constitutional scheme and context. This bears both on the substance and the process of the constitutional scheme..... Consistent with the constitutional purpose and proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 the Chief Justice of the High Court in the matter of recommending a person for appointment as a judge of the High Court was an unhealthy practice that the political executive of the State was trying to establish since around the time of Independence. This 'subterfuge' was deprecated on more than one occasion, as noticed above. 115. Another practice that the political executive was trying to establish was to recommend persons for appointment as a judge of the High Court to the Chief Justice of that High Court. In this context, it was also stated in Subhash Sharma (as quoted above) that: '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.' [Paragraph 34] This unequivocally indicates that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judiciary from the executive in the public services of the State.] (3) The Memorandum of Procedure for the selection and appointment of judges filed by the Union of India along with the written submissions relating to the pre First Judges case period and the extant procedure as mentioned in the 121st Report of the LCI relating to the post First Judges case period are more or less the same. They indicate that the recommendation for filling up a vacancy in the Supreme Court is initiated by the Chief Justice of India and the recommendation for filling up a vacancy in the High Court is initiated by the Chief Justice of the High Court. The Chief Minister of a State may recommend a person for filling up a vacancy in the High Court, but that is to be routed only through the Chief Justice of the High Court. [Parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificial 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] (2) Independence of the judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary. There cannot be an independent judiciary when the power of appointment of judges vests in the executive. [Paragraph 335] (3) The President is bound by the advice given by the Council of Ministers. [Paragraph 277, 356, 383 and 411] (4) A constitutional convention is established since the Government of India Act, 1935 (I would add the words 'at least') that the appointment of judges was invariably made with the concurrence of the Chief Justice of India. The opinion and recommendation of the Chief Justice of India in the matter of appointment of judges binds the executive. [Paragraph 359, 371, 373 and 376. The figures relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 excluded. [Paragraph 444, 446, 448 and 450] (3) The Chief Justice of India and the Chief Justice of the High Court are 'best equipped to know and assess the worth of a candidate, and his suitability for appointment as a superior judge.' In the event of a difference of opinion between the executive and the judiciary, the opinion of the Chief Justice of India should have the greatest weight. [This echoed Dr. Ambedkar's view that consultation would be between persons who are well qualified to give advice in matters of this sort.] Therefore, since primacy is not with the executive, then in such a situation, it must lie with the Chief Justice of India. [Paragraph 450, 451, 455, 478 and 486] . This certainly does not exclude the executive from the appointment process. The executive migh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India or the views of the Chief Justice of the High Court (as the case may be) when a recommendation is made for the appointment of a judge to a superior court. [Paragraph 500] 124. The most significant feature of the Second Judges case is that it introduced what has come to be called a 'collegium system' of consultation for the appointment of judges of the Supreme Court and the High Courts. As far as the Chief Justice of India is concerned, the collegium system broad-based his/her role in the appointment of judges of the High Courts and the Supreme Court and (in one sense) diluted his/her role in the appointment process by taking it out of the individualized or personalized role of the Chief Justice of India as thought of by Dr. Ambedkar. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting 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 the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two seniormost Judges of the High Court. [Paragraph 478(1)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appointment as a judge of the High Court, it must be routed only through the Chief Justice of the High Court. It is then for the said Chief Justice to consult his colleagues (and others, if necessary) and decide whether or not the person should be formally recommended. If the Chief Justice of the High Court recommends that person, the procedure as mentioned in the Second Judges case would thereafter follow. If the Chief Justice of the High Court decides not to recommend that person for appointment, the matter stands closed and, therefore, the question of making an appointment without the consent of the Chief Justice of India simply does not and cannot arise. It is this constitutionally and conventionally accepted procedure, which is apparently not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive to make the appointment. Some reported instances in the recent past of the executive failing to perform its duty by exercise of this power even when the recommendation of the judicial collegium was not unanimous and the then President of India had returned it for reconsideration, are not only inexplicable but also a misapplication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 to the Presidential Reference do not depart from the conclusions arrived at by this Court in the Second Judges case. In that sense, this opinion did not take the substantive discussion much further though it substantially resolved some procedural issues and filled in the gaps relating to the process of appointment of judges to the superior judiciary. In any event, the answers to the three questions mentioned above are: 1. The expression consultation with the Chief Justice of India in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute consultat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 personal satisfaction of the President is necessary for dispensing with an inquiry Under Clause (c) of the proviso to Article 311(2) of the Constitution. On the other hand, the State contended that the Governor was obliged to act only on the advice of the Council of Ministers. 140. This Court speaking through Chief Justice A.N. Ray (for himself and four other learned judges) overruled Sardari Lal and held that the decision did not correctly state the law. It was held that under the Rules of Business, the decision of the concerned Minister or officer is the decision of the President or the Governor as the case may be. It was then concluded: For the foregoing reasons we hold that the President or the Governor acts on the aid and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the age determination should be by the President uninfluenced by the views of the executive. This was on the ground that were the executive to make the determination of the age of a sitting judge, it would 'seriously affect the independence of the Judiciary.' This view was subsequently reiterated in Union of India v. Jyoti Prakash Mitter (1971) 1 SCC 396 (Five Judges Bench). 143. The learned judges then held, on the basis of the scheme of the Constitution that had already been adverted to, that the President means the Council of Ministers and the independence of the judiciary has been safeguarded by Article 217(3) of the Constitution by making mandatory the consultation with the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 on behalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did not refer to this decision in the First Judges case. The significance of this failure is that while in Samsher Singh it was held by Justice Bhagwati that the 'last word' must belong to the Chief Justice of India, in the First Judges case it was held by Justice Bhagwati that the 'ultimate power' is with the executive. This completely divergent view, though in different circumstances, is inexplicable since the underlying principle is the same, namely, the status of the Chief Justice of India with reference to the affairs concerning the judiciary. The second observation is that the 'last word' theory was not and has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fairly, competently and objectively. But there can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 Procedure for the appointment of a judge of the Supreme Court and another for the appointment of a judge of the High Court. These were shared with the Chief Justice of India. None of the each successive Chief Justices of India have complained or criticized any of the Memoranda or adversely commented on them, or at least we have not been told of any such complaint or objection. No one, including any successive Law Minister of the Government of India, complained that the Memoranda were unworkable or caused any hindrance or delay in the appointment of judges or did not correctly reflect the views of this Court in the two decisions mentioned above or that they did not conform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yers 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 the Chief Justice of the High Court and for the appointment of a judge of the Supreme Court from the Chief Justice of India; (3) Consultation between the President and the Chief Justice of India is an integrated participative process with the result that the President has the final say in the appointment of a judge under certain circumstances and the Chief Justice of India (in consultation with and on the unanimous view of the other judges consulted by him/her) has the final say under certain circumstances; and (4) The Union of India accepted these propositions without hesitation in the Third Judges case. Amendments to the Constitution 157. Apart fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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 appointments, the scope of executive interference is enhanced. [Paragraph 7.8] 163. The Bill was not taken up for consideration due to the dissolution of the Lok Sabha in May, 1991. (b) The Constitution (Ninety-eighth Amendment) Bill, 2003 164. On 22nd February, 2000-barely 8 months after the issuance of the (Revised) Memorandum of Procedure mentioned above-the Government of India issued a notification setting up a National Commission to Review the Working of the Constitution (for short the NCRWC), including the procedure for the appointment of judges of the superior judiciary. The terms of reference of the NCRWC were as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 Constitution, the opinion rendered by the Chief Justice of India (after consulting his colleagues) shall be binding upon the Executive. In this view of the matter, much of the expectations from a National Judicial Commission (N.J.C) have been met. The said Constitution Amendment Bill was, it would appear, prepared after a wide and elaborate consultation with all the political parties and other stakeholders. However, the aspect of disciplinary jurisdiction remains unanswered. We may however discuss the concept of an N.J.C. which may cover both appointments and matters of discipline. 167. The Paper acknowledged that the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt for making appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution. The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of: The Chief Justice of India: Chairman Two senior most judges of the Supreme Court: Member The Union Minister for Law and Justice: Member One eminent person nominated by the President after consulting the Chief Justice of India: Member The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary. [Paragraph 7.3.7] 169. Pursuant to the recommendations of the NCRWC, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission 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. 175. The Constitution (One Hundred and Twentieth Amendment) Bill proposed the insertion of Article 124A in the Constitution establishing a commission known as the National Judicial Appointments Commission (for short the NJAC). The composition of the NJAC, the appointment of its Chairperson and Members, their qualifications, conditions of services, tenure, functions and the procedure as well as the manner of selection of persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices and other judges of the High Courts was to be provided by law made by Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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) Bill, 2014. This Bill was passed by the Lok Sabha on 13th August, 2014 and by the Rajya Sabha on 14th August, 2014. It received the ratification of more than one half of the States as required by Article 368(2) of the Constitution and received the assent of the President on 31st December, 2014 when it became the Constitution (Ninety-ninth Amendment) Act 2014. 179. It may be mentioned en passant that the learned Solicitor General was requested to place on record the procedure adopted by the State Legislatures for ratification of the Constitution (One Hundred and Twenty-first Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges) 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 India is not expected to act in an individual or personal capacity but must consult his/her senior judges before making a recommendation for the appointment of a judge. (5) Dr. Ambedkar and the Constituent Assembly did not accept the 'unfettered discretion' theory in the CAD but this view was subsequently rejected in the First Judges case which brought in the 'ultimate power' theory propounded by Justice Bhagwati and Justice Desai. (6) Executive interference in the appointment process (with perhaps an informal method of 'take over') had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 judiciary and the Rule of Law. If some positive developments can be incorporated in the justice delivery system (in the larger context) they should be so incorporated. 185. In this context, it is interesting to recall the words of Dr. Ambedkar on the working of the Constitution: ...however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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 given due consideration. Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work the Supreme Court is required to handle. The Chief Justice of India is reported to have responded as follows: I would like to assert that merit alone has been the criterion for selection of Judges and no discrimination has been done while making appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 reconsideration. It was submitted that the decisions have the effect of usurping the powers of the President under Article 124(2) and Article 217(1) of the Constitution and that the judiciary has effectively converted the appointment of judges to the Supreme Court and the High Courts from 'consultation' between the President and the Chief Justice of India (as occurring in Article 124(2) of the Constitution) into 'concurrence' of the Chief Justice of India and giving birth to a 'right to insist' on the acceptance of a recommendatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 as rigid as in the United States. One of the elements of the separation of powers is the system of checks and balances. This too is recognized by our Constitution and Article 226 and Article 32 (judicial review) is one of the features of checks and balances. It was so held in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 (Thirteen Judges Bench) where it was said by Justice Shelat and Justice Grover as follows: There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 balances. Harold Laski was quoted as saying that 'Separation of powers does not mean the equal balance of powers.' [A Grammar of Politics (Works of Harold J. Laski), 297] In that context it was held that the exercise of judicial power by the Legislature is impermissible. The learned judge expressed the view that: Montesquieu was the first to conceive of the three functions of Government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of Government involved a certain degree of overla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority. [Paragraph 86] 201. A little later, it was observed by the learned judge: It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament 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 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. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 208. This view was partially accepted, with reference to the CAD in A.K. Gopalan v. State of Madras 1950 SCR 88 (6 Judges Bench) by Chief Justice Harilal Kania who held that reference may be made to the CAD with great caution and only when 'latent ambiguities are to be resolved.' [Quoted from Willoughby on the Constitution of the United States, page 64] The learned Chief Justice observed: Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess 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 indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord. The Court could only search for the objective intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: 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 subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord, or, as it is more tersely put in an American case- Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other--United States v. Trans-Missouri Freight Association 169 US 290, 318 [Page 1121] 214. In Golak Nath v. State of Punjab (1967) 2 SCR 762 (11 Judges Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision 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 it takes in and what it does not. As to the historical facts, namely, what was accepted or what was avoided in the Constituent Assembly in connection with Article 368, it is enough to say that we have not been able to find any help from the material relating to this. There were proposals for restricting the power of amendment Under Article 368 and making fundamental rights immune therefrom and there were counter proposals before the Constituent Assembly for making the power of amendment all-embracing. They were all either dropped or negatived and in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72) 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 not advisable for interpreting the provisions of the Constitution. This is best understood in the words of the learned Chief Justice: There is an additional reason for not referring to debates for the purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October 12, 1949, (CAD, Vol. X, pp. 161-63): Unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting 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 drafted. The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constituent Assembly does not absolve the court from performing that task. The draftsmen are supposed to have expressed their intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 1088] 226. Justice K.K. Mathew supported the view of Justice Jaganmohan Reddy and observed that: 'Logically, there is no reason why we should exclude altogether the speeches made in the Constituent Assembly by individual members if they throw any light which will resolve latent ambiguity in a provision of Constitution.' The learned judge went on to hold in a subsequent paragraph of the decision: If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand 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. State of Punjab (2001) 7 SCC 126 it was held that it is settled that the CAD may be relied upon 'as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution.' This view was followed by me in Manoj Narula v. Union of India (2014) 9 SCC 1 (5 Judges Bench). 230. In T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 (11 Judges Bench) Justice Khare referred to Kesavananda Bharati and observed therein that though the CAD are not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Republic of South Africa in The State v. T. Makwanyane 1995 (3) SA 391 (CC) (Eleven Judges Bench) paragraph 16 a brief survey of the law in the United States Supreme Court, German Constitutional Court, Canadian Supreme Court, this Court, European Court of Human Rights and the United Nations Committee on Human Rights was carried out and it was held (per Justice Chaskalson): In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 CAD or to Parliamentary debates (as indeed to any other 'relevant material') to understand the context in which the constitutional or statutory provisions were framed and to gather the intent of the law makers but only if there is some ambiguity or uncertainty or incongruity or obscurity in the language of the provision. A reference to the CAD or the Parliamentary debates ought not to be made only because they are there;290 [With due apologies to George Mallory who is famously quoted as having replied to the question Why do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ordinarily outside the purview of the Executive which would otherwise have to take the initiative to include these items in the budget for the reason that the independence of the Judiciary should be maintained and that the Judiciary should not feel that they are subject to favours that the Executive might grant to them from time to time and which would naturally influence their decision in any matter they have to take where the interests of the Executive of the time being happens to be concerned. At the same time, Sir, I think it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 99 th Constitution Amendment Act impact on that independence? These are some troubling questions that need an answer with reference to the issue before us, namely, the constitutional validity of the 99 th Constitution Amendment Act. Judicial pronouncements and the third preliminary issue 242. The learned Attorney-General submitted that in any event the Second Judges case requires reconsideration. There is large volume of case law which gives guidance on the circumstances when an earlier decision of this Court should be reconsidered. It is necessary to consider these cases before deciding whether a platform for reconsideration of the Second Judges case has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 erroneous interpretation of the former by the Court could be corrected by the Legislature, it was not easy to amend the Constitution to correct its erroneous interpretation by the Court. It is for this reason that Justice N.H. Bhagwati held that if the previous decision interpreting the provisions of the Constitution was 'manifestly wrong or erroneous' and that 'public interest' demanded its reconsideration then the Court should have no hesitation in doing so. 246. Justice Jagannadhadas also h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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' particularly on a constitutional issue. If any inconvenience is felt on the interpretations of the provisions of the Constitution under consideration, then the remedy 'seems to be a constitutional amendment.' 250. In Keshav Mills v. CIT AIR 1965 SC 1636 (7 Judges Bench) the question for consideration was the scope of the High Court's powers Under Section 66(4) of the Income Tax Act, 1922. It was submitted by the learned Attorney-General that two earlier decisions on the subject, that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fusion 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 with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; 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 necessary to refer to all the cases on the point. The broad guidelines are easily deducible from what has gone before. The possibility of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of law may make a consensual pattern possible. But that lies in the future.' 254. Echoing the views expressed in Maganlal Chhaganlal and Raghubir Singh with regard to acknowledging changes with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had followed a groove chased amidst a context which has long since crumbled. [Sabhajit Tewary was a unanimous decision of 5 learned judges of this Court. To conclude that it sought precedential support from decisions which were irrelevant is, with respect, rather uncharitable.] Had the facts been closely scrutinised in the proper perspective, it could have led and can only lead to the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? [Paragraph 10] 261. It follows from this that where a matter is of 'great importance', this Court may refer the issue to a larger Bench to reconsider an earlier decision of this Court. 262. In the Second Judges case it was observed by Justice Pandian that an earlier decision rendered by this Court may be reconsidered if, amongst others, 'exceptional and extraordinarily compelling' circumstances so warrant. It was observed that 'no decision enjoys absolute immunity from judicial revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople, 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 exercised sparingly and under exceptional circumstances for clear and compelling reasons. Therefore, merely because a view different from or contrary to what has been expressed earlier is preferable is no reason to reconsider an earlier decision. The endeavour of this Court must always be to ensure that the law is definite and certain and continuity in the interpretation of the law is maintained. In this regard, Raghubir Singh presents an interesting picture. Section 23(2) of the Land Acquisition Act, 1894 (as amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 pithily when he said that: 'But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.' [ The law, so far as it depends on learning, is indeed, as it has been called, the government of the living by the dead. To a very considerable extent no doubt it is inevitable that the living should be so governed. The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. 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 of the misbehavior or incapacity of a judge; Article 125(1) enables Parliament by law to determine the salary of a judge while Article 125(2) enables Parliament to pass a law with regard to the privileges, allowances, etc. of a judge. Pursuant to this the Supreme Court Judges (Conditions of Service) Act, 1958 has been enacted; Article 134(2) enables Parliament to confer on the Supreme Court by legislation, further powers to entertain and hear appeals and criminal proceedings. Pursuant to this, Parliament has enacted the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 independence of the judiciary, transparency and sharing of information between the constitutional authorities, the primacy of the President or the Judiciary in the appointment process (depending on the circumstances), the importance of the President in the integrated consultative process derived from the debates in the Constituent Assembly and several other related aspects. All this involved a pragmatic and workable interpretation of the Constitution, which is the task only of the judiciary and there can be no doubt about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 of a reason at law) why such a request should be entertained at this stage, except on a fanciful misunderstanding of the law by the Union of India. 272. The contention of the learned Attorney-General is that the appointment of a judge of the Supreme Court or a High Court is an executive function and that has been taken over by the judiciary by a process of judicial encroachment through a 'right to insist' thereby breaking down the separation of power theory. It is not possible to accept this line of thought. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 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 henceforth the independence of the judiciary may not necessarily be sacrosanct. It is for this reason that the Bar has fought back to preserve and protect the existing conventions and practices and will, hopefully maintain its vigil. 274. In The Pocket Veto case 279 U.S. 655, 689 (1929) the US Supreme Court referred to a long standing practice as an interpretation to a constitutional provision, which would be equally applicable to India. It was said: The views which we have expressed as to the construction and effect of the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ought normally to be accepted by the President. However, the President can return the recommendation for reconsideration for strong and cogent reasons. If the Chief Justice of India (in consultation with the other judges and unanimously) reiterates the recommendation, it should be accepted. On the other hand, a recommendation made by the Chief Justice of India, which is initially not unanimous, may not be accepted by the President. As pointed out by Justice Verma, the President occasionally failed to exercise this particular constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proper advice with regard to the knowledge, ability, competence and suitability of a person to be appointed as a judge of a High Court of the Supreme Court. There is no reason, therefore, why the opinion of the Chief Justice of India taken along with the opinion of other judges should not be accepted by the executive, which is certainly not better qualified to make an assessment in this regard. However, it is possible that the executive may be in possession of some information about some aspect of a particular person which may n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the President was to act only the advice of the Council of Ministers (and not as an individual having unfettered discretion) there can today possibly be no objection to the Chief Justice of India acting institutionally on the views of his/her colleagues and not, as desired by Dr. Ambedkar, as an individual. In other words, constitutionalism in India has undergone a positive transformation and the objection that Dr. Ambedkar had to any individual having the final say is rendered non-existent. In view of Samsher Singh the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, clear and compelling reasons for reconsideration, nor can it be said that the Second Judges case was plainly erroneous or that it has a baneful effect on the public. On the contrary, the decision restored the independence of the judiciary in real terms and eliminated the baneful effect of executive controls. 287. It may also be mentioned that it was categorically laid down in Samsher Singh that the last word in matters pertaining to judiciary should be with the Chief Justice of India. Samsher Singh was decided by a Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndence 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 basic feature of our Constitution, so must be the independence of the judiciary since the 'enforcement' of the Rule of Law requires an independent judiciary as its integral and critical component. 294. Justice Mathew concluded in Indira Nehru Gandhi that according to some judges constituting the majority in Kesavananda Bharati the Rule of Law is a basic structure of the Constitution. [Paragraph 335] 295. In Samsher Singh the independence of the judiciary was held to be a cardinal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Bench) speaking for the Court, Justice Raveendran held: The rule of law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the executive. [Paragraph 101] 301. Finally, in State of Tamil Nadu it was unanimously held by the Bench speaking through Chief Justice Lodha that the independence of the judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Second Schedule of the Constitution are protected and will not be varied to his/her disadvantage after appointment. [Article 125] To give effect to this, Parliament has enacted the Supreme Court Judges (Conditions of Service) Act, 1958. 307. The salary, allowances and pension payable to or in respect of a judge of the Supreme Court is charged to the Consolidated Fund of India. [Article 112(2)(d)] The estimate of this expenditure may be discussed but s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction. 313. As far as institutional independence is concerned, our Constitution provides for it as well. For the Supreme Court, institutional independence is provided for in Article 129 which enables the institution to punish for contempt of itself. A similar provision is made for the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who is or was a judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. This is in addition to the protection given by Section 77 of the Indian Penal Code which provides that: 'Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussion 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 State and not the judiciary as a whole. 321. Article 50 was incorporated in the Constitution in the chapter on Directive Principles of State Policy at the instance of Dr. Ambedkar who moved a proposal on 24th November, 1948 to insert Article 39A in the Draft Constitution. [39-A. That State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 fundamental aspects of the political, social, economic and other spheres and not with the details which are matters for legislation. It was stated in this context as follows: Coming to this present amendment, if I may again make some general observations with all respect to this House, it is this: that I have felt that the dignity of a Constitution is not perhaps maintained sufficiently if one goes into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reform had become greater. The Hon'ble Member cited three illustrative instances of interference with the judiciary by Ministers of some Provinces and members of political parties in the fair administration of justice. Dr. Bakshi Tek Chand gave these extremely telling examples and it is best to quote what was said: One word more I have to say in this connection and that is, that with the advent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituent 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 administration of justice and that it was not necessary to provide for every detail in the Draft Constitution. That constitutional conventions existed prior to Independence were known, but that they were required to be continued after Independence was of equal significance. 331. With the need for avoiding details in the Constitution, the Draft Constitution did not specifically provide for the independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 is appointed as a judge, there is a probability of his/her succumbing to internal or external pressure and delivering a tainted verdict. This will strike at the root of the independence of the judiciary and destroy the faith of the common person in fair justice delivery. Therefore, there is a great obligation and responsibility on all constitutional functionaries, including the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 judiciary and the appointment of judges is commented upon and in a reference to international standards, it is said that the appointment of judges plays a key role in safeguarding the independence of the judiciary. This is what was said: The independence of the judiciary is one of the cornerstones of the rule of law. Rather than being elected by the people, judges derive th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 Appointments to the European Court of Human Rights, great emphasis was laid on the procedure for the appointment of judges and the criteria for appointment. It was said: The issue of how judges are appointed is important in two respects. First, appointment procedures impact directly upon the independence and impartiality of the judiciary. Since the legitimacy and credibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 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 preventing the influence of political consideration in making appointment of judges to the superior judiciary. [Paragraph 447] 347. There is, therefore, no doubt that the appointment of a judge to the Supreme Court or the High Court is an integral part of the independence of the judiciary. It is not possible to agree with the learned Attorney-General when he says that though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges 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 considerations, it must be held and is held that the process for appointment and the actual appointment of a judge to a High Court or the Supreme Court is a predominant part of the independence of the judiciary and, therefore, an integral part of the basic structure of the Constitution. 351. Therefore, the procedure for the appointment of judges of the Supreme Court or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Second Judges case effectively resolves this controversy. 356. At the pre-recommendation stage, it is quite possible that the executive is in possession of material regarding some personal trait or weakness of character of a lawyer or a judge that is not known to the Chief Justice of India or the Chief Justice of the High Court and which may potentially disen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. After the appointment, why should it be secret? If there is a good reason to appoint the Judges, then at least the doubts people cast on them even now will not be there. And if ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unanimous recommendation of the judiciary through the Chief Justice of India is not accepted by the President, if nothing else, at least the record will be put straight and the possible damage to the dignity, reputation and honour of the person who was recommended by the Chief Justice of India will be restored, at least to some extent. 364. But is judicial revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Supreme Court or the High Court. 366. It is trite that the Constitution is a living document. [I.R. Coelho v. State of Tamil Nadu: (2007) 2 SCC 1 Paragraph 42] Keeping this in mind, could it be said that a strained interpretation has been given to Article 124(2) and Article 217(1) of the Constitution particularly when the substitution of 'consultation& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.' 372. As far the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 is concerned, there is no doubt or dispute that the procedure mentioned above was followed and that it received the assent of the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 amending power of Parliament is limited. However widely worded the power might be, it cannot be used to render the Constitution to lose its character or nature or identity and it has to be exercised within the framework of the Constitution. It was observed that an unlimited power of amendment cannot be conducive to the survival of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. 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 the foundation or to alter the basic institutional pattern. The words amendment of the Constitution with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. 381. Thereafter, Justice Khanna travelled much further than necessary and held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 conclusions agreed upon by the nine learned judges who signed the summary was: 'Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.' Judicial review of an amendment to the Constitution 385. In Indira Nehru Gandhi it was held that an amendment to the Constitution ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituent 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 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 expressly rejected by this Court. We may rest content by referring to a passage from the judgment of our learned brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Constitution. [The only exception to this perhaps could be a statute placed in the Ninth Schedule of the Constitution]. The principles for challenging the constitutionality of a statute are quite different. Challenge to the 99th Constitution Amendment Act-the preliminaries (a) Limitations to the challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judges who constituted the majority, the majority dealt with the connotation of the word amendment . It was held that the words amendment of the Constitution in Article 368 could not have the effect of destroying or abrogating the basic structure of the Constitution. Some of us who were parties to that case to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy 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 Article 329-A of the Constitution as introduced by the 39th Constitution Amendment Act damaged or destroyed the basic structure of the Constitution. [Paragraph 264 and 265] 396. Justice Y.V. Chandrachud who too was in the minority in Kesavananda Bharati took the view that according to the majority opinion i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Firstly, it is a contemporaneous exposition of the views of the majority in Kesavananda Bharati and there is no other or different exposition and secondly, the exposition is by the majority of judges themselves (including two in the minority) and by no other. 398. It may be mentioned that some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 basic structure or framework of the Constitution. [Paragraph 21] And again, In Kesavananda Bharati case the majority held that the power of amendment of the Constitution Under Article 368 did not enable Parliament to alter the basic structure of the Constitution. [Paragraph 119] The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic 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 National Judicial Appointments Commission by the 99th Constitution Amendment Act so altered the appointment process as to impact on the independence of the judiciary thereby making the 99th Constitution Amendment Act unconstitutional? The learned Attorney-General answered this in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts 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 model is good or not good but whether it is constitutionally valid or not. (c) Basis of judgment is removed 411. The third submission was that Article 124(2) of the Constitution has been amended by the 99th Constitution Amendment Act and, therefore, the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Legislature rendering the basis of the judgment non est. 414. In K. Sankaran Nair v. Devaki Amma Malathy Amma: (1996) 11 SCC 428 it was observed as follows: It is now well settled that the legislature cannot overrule any judicial decision without removing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute 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 Aluminium Co. v. State of Kerala (1996) 7 SCC 637: In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transgression the Court will courageously declare the law unconstitutional, for the Court is bound by its oath to uphold the Constitution. But outside the limitations imposed on the legislative powers our Parliament and the State Legislatures are supreme in their respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 amendment the courts would not go into the question as to whether the amendment has in effect brought about an improvement. It is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 cannot colour the application and interpretation of the law or the reasoning that a judge is expected to adopt in coming to a conclusion whether the substitute introduced by the 99th Constitution Amendment Act is constitutionally valid or not. Similarly, a jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstands 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 uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt (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 muster. 443. There is no doubt that with the passage of time changes take place in society and in the development of the law. In fact, the only constant is change. In State of West Bengal v. Anwar Ali Sarkar [1952] SCR 284 (Seven Judges Bench) it was acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 that the Constitution must recognize only physical changes with the passage of time-certainly not. New thoughts and ideas are generated with the passage of time and a line of thinking that was acceptable a few decades ago may not be acceptable today ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted 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 in this submission. 453. The accepted view is that a Parliamentary statute can be struck down only if it is beyond legislative competence or violates Article 13 or the fundamental rights. The basic structure doctrine is not available for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to Sub-Article (2) of Article 368 of the Constitution of India. 457. Stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtha 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 a post-script, its view on Article 122(1) of the Constitution. It was observed that in a given hypothetical situation the question will not be the validity of proceedings in Parliament but the violation of a constitutional provision. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 President to appoint a judge of the Supreme Court; a mandatory requirement of consultation with the Chief Justice of India; a discretionary consultation with other judges of the Supreme Court and the High Courts. 465. The 99th Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 another has been left to be determined by Regulations to be framed by the NJAC (Section 9 of the Act). Similarly, the NJAC shall frame Regulations with regard to the procedure for the discharge of its functions (Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncellor 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 provided for by the current Crime and Courts Bill. The two groups of judges I am talking about are, first, the most senior members of the Court of Appeal-that is, the Heads of Division and Lord Chief Justice-and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to against the wishes of the judiciary'. In a recent article published in Public Law it is said: Judicial appointments are the next biggest change, responsibility for which has shifted from the executive in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wrapping paper in the form of the NJAC Act and a ribbon in the form of the 99th Constitution Amendment Act. If it is not possible to answer all the questions in the absence of a composite law, rules and Regulations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly 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 Constitution or the 99th Constitution Amendment Act. Secondly, in the event of such a reiteration, the opinion of the Chief Justice of India eventually counts for nothing, contrary to the intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opinion of two eminent persons neither of whom is constitutionally accountable; there is a doubt on the well established principle of Cabinet responsibility; a statute-the NJAC Act, not the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident 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 Catch-22 situation. The alternative suggested would clearly amount to judicial overreach and the judiciary rewriting the statute. The only rational course is to interpret the law as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to the NJAC or that their appointment w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered 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 related to the appointment of the Central Vigilance Commissioner and the Vigilance Commissioners under the Central Vigilance Commission Act, 2003. The relevant provision was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment 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 decision-making) process of the Committee. It was pointed out in Centre for PIL that in a situation such as the present, where no procedure in the functioning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 should be from a specified category as mentioned in the first proviso to Article 124A(1)(d) of the Constitution is discriminatory and serves no purpose at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 by the Petitioners for several reasons. Principally, it was contended that the Union of India is the biggest litigant in the courts and to have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 litigant and for a Cabinet Minister to be participating (and having a veto) in the actual selection of a judge of a High Court or the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that these countries have not, even after four decades, established such commissions, while our country seems to be in a great rush to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 competence and how judges manage their judicial power and independence are major aspects of enhancing access to justice and judicial accountability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 the appointment of judges remain crucial in maintaining judicial independence and public confidence in the judiciary. [http://www.lawsociety.org.bw/news/Positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 even if it is not unanimous. This is a considerable whittling down of the authority of the President and a drastic change in the appointment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the judiciary to manage the justice delivery system and it is for him/her to take the final call whether the antecedents or personal tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 independence of the judiciary. 531. The entire issue may be looked at in another light: Why did the Constituent Assembly make it mandatory for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 independence of the judiciary and perhaps spent more time debating it than any other topic. 535. In this regard, it is worth recalling the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the constitutional obligation and constitutional convention that has developed over the last several decades is that a rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Publishing Company, Amsterdam, (1976), p. 46.] it is stated by Sarkar Ali Akkas of the University of Rajshahi, Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 appointment of judges-the first chapter being one in which the executive had the 'ultimate power' in the appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allowances are charged upon the Consolidated Fund of India. The 'independence' of these offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rency 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 consider, let alone achieve that balance. 556. It is possible to argue that informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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.... Thus, undoubtedly, submission made by the learned senior Counsel on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the High Courts in respect of 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 ceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso declared unconstitutional. Similarly, 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 judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, etc., to recuse himself from the adjudication 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 imparti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sensitive or controversial issues, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his follows from the principle 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 shoppi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial function 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 interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legium. Thus, the structural supremacy 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The second archetype is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husing Senators. 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 gerryma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes 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 tecton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, according 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (Civil) No. 13 of 2015, which has been treated as the lead petition. 2. I have perused the erudite opinions of my esteemed brothers. While I respectfully agree with the conclusions arrived at by Khehar J., Lokur J. and Kurian Joseph J., and respectfully disagree with the view of Chelameswar J. I prefer to record my own reasons. Pre-Amendment Scheme of Appointment and Transfer of Judges 3. The scheme of appointment and transfer of Judges in force prior to the amendment is set out in two memoranda dated 30th June, 1999 issued by the Government of India-first for appointment of Chief Justice of India (CJI) and judges of the Supreme Court and second for appointment and transfer of Chief Justices and the judges of the High Courts. 3.1. Broadly the procedure laid down in the first memorandum is that appointment to the office of the CJI should be of the senior most judge of the Supreme Court considered 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consultations must be in writing and these opinions are sent to the Chief Minister, along with the recommendation. If the Chief Minister desires to recommend a name, he has to forward the same to the Chief Justice for his consideration. A copy of the recommendation is also sent to the CJI and the Union Law Minister. The Chief Minister advises the Governor who forwards his recommendation to the Law Minister. The Law Minister considers the recommendation in the light of such other reports (such as I.B. report) as may be available to the Government and then forwards the material to the CJI. CJI consults two senior most Judges and also takes into account the views of the Chief Justice and Judges of the High Court (consulted by the Chief Justice) and those Judges of the Supreme Court who are conversant with the affairs of the candidate. Thereafter the CJI sends the recommendation to the Union Law Minister along with the correspondence with his colleagues. If the Law Minister considers it expedient to refer back the name for opinion of the State Constitutional Authorities, opinion of the CJI must be obtained. The Law Minister then puts up the recommendation to the PM who advises the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust emanate from the CJI and for appointment to the High Court it should emanate from the Chief Justice of the High Court and the last word on appointment must rest with the CJI Paras 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act (Section 11). The Commission is authorised to make Regulations consistent with the Act and the Rules. The Rules and the Regulations framed under the Act are required to be placed before the Parliament, which may modify such rules or Regulations (Sections 12, 13). 7. The statement of objects and reasons of the amendment mentions that this Court had interpreted the word consultation as concurrence in Articles 124(2) and 217(2) of the Constitution (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission. 124B. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. . 7.3. The relevant constitutional and statutory provisions are set out separately in an Appendix to this opinion. Rival Contentions 8. The Amendment Act is challenged as ultra vires, inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is limited by the concept of basic structure as judicially interpreted; (iii) Final interpreter of the Constitution and the scope of powers thereunder is this Court; (iv) Independence of judiciary and separation of powers are part of basic structure; (v) Primacy of judiciary in appointment of judges is crucial 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to enact law to regulate the procedure of the NJAC or to modify the Regulations framed by the NJAC is valid. The NJAC is accountable to Parliament in framing Regulations. The presence of Law Minister as a member of the NJAC ensures accountability to public. The presence of two eminent persons is a check and balance on the functioning of other members. Diversity of members will ensure greater accountability of each member to the other. This will ensure greater public confidence in the functioning of the judiciary. The NJAC will fall under the purview of Right to Information Act, 2005 which will ensure transparency. Even if the Amendment was struck down, original provisions could not be revived as doctrine of revival does not apply to Constitutional Amendments. The issue was raised in Property Owners' Association 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel and other counsel appearing either in person or as intervenor or otherwise. They have been opposed by learned Attorney General Shri Mukul Rohtagi, learned Solicitor General Shri Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. Venugopal, Harish N. Salve, T.R. Andhyarujina, Dushyant Dave learned senior Counsel and other learned Counsel for various States and intervenors or otherwise. I record my gratitude to learned Counsel for their painstaking assistance to the Court with their exceptional ability and skill for deciding important issues arising for consideration. Their contentions will be referred to at appropriate stage to the extent necessary. 13. While generally learned Counsel on either side have taken identical stand, Shri Venugopal, appearing for the State of M.P., which is otherwise supporting the amendment, in his alternative submission, filed on 14th July, 2015 by way of additional propositions, inter alia submitted as follows: 3. Looking at the scheme of the 99th Amendment and the National Judicial Commission Appointments Act, 2014 (NJAC Act), the scheme evolved provides for the constitution of a 6 member Commission and Under Article 124-C, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, therefore, is what would be the position if a deadlock arises when the unanimous decision of the three judges is opposed by the other three members. Needless to state, that if the three judges are not ad idem on a candidate, no 'issue of primacy' would arise and the majority would prevail. 8. It is true that the nine judges case can no more hold the field for the purpose of nullifying the 99th amendment, which, obviously, is inconsistent with the Collegium system evolved by the nine judges judgment. But that does not mean that the principles enunciated by the said judgment could not be relied upon as being a juristic principle that would be applicable in such cases. In other words, these principles can be said to be relevant for all time to come because of the following reasons: a. The power of appointment can be used to affect or subvert the independence of the appointees when functioning as members of the superior judiciary. b. A system of appointment where the executive voice predominates would affect such independence. c. If however, the voice of the Chief Justice of India, representing the judiciary prevails, even in a system where the executive or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitutional Amendment can be valid only if it is consistent with the basic structure of the Constitution, the core issue for consideration is whether the impugned amendment alters or damages the said basic structure and is void on that ground. According to the Petitioners the primacy of judiciary in appointment of judges and absence of interference by the Executive therein is by itself a part of basic feature of the Constitution being integral part of independence of judiciary and separation of judiciary from the Executive. According to the Respondents primacy of judiciary in appointment of judges is not part of independence of judiciary. Even when appointments are made by Executive, independence of judiciary is not affected. Alternatively in the amended scheme, primacy of judiciary is retained and independence of judiciary is strengthened. The amendment promotes transparency and accountability and is a part of needed reform without affecting the basic structure of the Constitution. To determine the question one has to look at the concept of basic feature which controls the amending power of the Parliament. This understanding will lead to the decision whether primacy of judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the scope of amendment of the Constitution. Sikri, CJ. observed that having regard to importance of freedom of the individual and the importance of economic, social and political justice, mentioned in the preamble the word amendment could not be read in its widest sense. The Fundamental Rights could not be amended out of existence. Fundamental features of secularism, democracy and freedom of individual should always subsist. The expression amendment had a limited meaning. Otherwise a political party with two-third majority could so amend the Constitution as to debar any other party from functioning, establish totalitarianism and enslave the people and thereafter make the Constitution unamendable. Thus, the appeal to democratic principles to justify absolute amending power, if accepted, could damage the very democratic principles. Thus, the amendment meant addition or change within the broad contours of the preamble of the Constitution. The Parliament could adjust the Fundamental Rights to secure the objectives of the Directive Principles while maintaining freedom and dignity of every citizen. The dignity and freedom of the individual was held to be of supreme importanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by an amendment. Khanna, J. observed that as a result of amendment, the old Constitution could not be done away with. Basic structure of framework must be retained. It was not permissible to touch the foundation or to alter the basic institutional pattern. What can be amended is the existing Constitution and what must emerge as a result of amendment is not a new and different Constitution but the existing Constitution. What was contemplated by amendment was varying of the Constitution here and there and not elimination of its basic structure resulting in losing its identity. 15.3. One of the questions considered was validity of Section 3 of the Twenty-Fifth Amendment Act, 1971 adding Article 31-C as follows: 416. Section 3 of the twenty-fifth amendment, reads thus: 3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any challenge to the election 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be challenged on the ground that the said law was not for giving effect to the said Part IV. By Section 55, it was provided that no amendment of the Constitution could be challenged on any ground and that there will be no limitation on the constituent power of Parliament to amend the Constitution. This Court observed that the Constitution had conferred limited amending power on the Parliament which itself was a basic feature of the Constitution. The Parliament could not expand its amending power so as to destroy the said basic feature of the Constitution. The limited power could not be converted into unlimited one. Clauses 4 and 5 of Article 368 added by Forty-Second Amendment were struck down as violative of basic structure of the Constitution. It was observed that the balance between Part III and Part IV of the Constitution was basic feature of the Constitution [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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India (2006) 8 SCC 212, Eighty-Fifth and allied amendments to the Constitution were called in question on the ground of violation of right of equality as a basic feature of the Constitution. While considering the challenge, it was observed that the Constitution sets out principles for an expanding future. This called for a purposive approach to the interpretation. It was observed that a constitutional provision must not be construed in a narrow sense but in a wide and liberal sense so as to take into account changing conditions and emerging problems and challenges. The content of the rights is to be defined by the Courts. Some of the concepts like federalism, secularism, reasonableness and socialism reasonableness are beyond the words of a particular provision. They give coherence to the Constitution and make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. To qualify as essential feature, a principle has to be established as part of constitutional law and as such binding on the legislature. Only then, it could be examined whether it was a part of basic feature. Theory of basic feature was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the Constitution, question is whether power of appointing Judges can be delinked from the concept of independence of judiciary or is integral part of it. Can the independence of judiciary be maintained even if the appointment of Judges is controlled directly or indirectly by the executive? 16.3 To what extent primacy of judiciary in appointment of judges is part of unamendable basic feature of the Constitution. Since the issue has been gone into in earlier binding precedents, reference to such decisions is apt. As already mentioned, it remains undisputed that power of judicial review, independence of judiciary, broad separation of powers in three departments of the State, federalism and democracy are the basic features of the Constitution. Stand of the Respondents is that power of appointment of judges does not have impact on such basic features as independence of judges is envisaged post appointment. By an amendment, process of appointment of judges can be altered to reduce the role of judiciary and to increase the role of Executive and Legislature. Alternatively, it is submitted that no substantial change has taken place in the said roles. 16.4 In Second Judge's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assurance of non-political complexion of judiciary should not be divorced from the process of appointment. The phrase consultation had to be understood consistent with and to promote the constitutional spirit. The constitutional values could not be whittled down by calling the appointment of judges as an executive act. The appointment was rather the result of collective constitutional process. It could not be said that power to appoint solely vested with the executive or that the executive was free to take such decision as it deems 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the courts Paras 334, 335 . There was established constitutional convention recognising the primal and binding opinion of CJI in the matter of appointment of judges. All appointments since the commencement of the Constitution were made with the concurrence of the CJI. The 14th Report of the Law Commission and discussion in the Parliament on 23rd and 24th November, 1959 were referred to 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 conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pact on the functioning of the Constitution. If this contention is upheld, the impugned amendment will have to be struck down unless it could be held that the amended provisions also retained the said primacy. If primacy of judiciary is held not to be a part of basic structure of the Constitution or it is held that the same is still retained, the amendment will have to be upheld. C. Plea of the Respondents for re-visiting earlier binding precedents 17. The correctness of the view taken in the above decisions was sought to be challenged by learned Counsel for the Respondents. The ground on which reconsideration of the earlier view is sought is that the interpretation in Second and Third Judges cases is patently erroneous. Members of the Constituent Assembly never intended that the CJI should have last word on the subject of appointment of Judges. The text which was finally approved and which became part of the Constitution did not provide for concurrence of the CJI as has been laid down by this Court. It is also submitted that the interpretation taken by this Court may have been justified on account of the abuse of powers by the Executive specially during emergency (as notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral and other learned Counsel appearing for the Respondents was contested by learned Counsel for the Petitioners. It was submitted that all issues sought to be raised by the Respondents were duly considered by the Bench of nine-judges. The Central Government sought opinion of this Court Under Article 143. A statement was made by the then learned Attorney General that the Second Judges' case was not sought to be reconsidered. The view of the nine-Judge Bench was based on earlier binding decisions in Shamsher Singh 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 ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may never be ruled out in functioning of any system. The Judicial Appointment Commissions earlier considered were not on the same pattern. Initially proposal to set up Judicial Commission was made prior to Second Judges case, with the object of doing away with the primacy of the Executive as laid down in First Judges case. In Sixty-Seventh Amendment Bill, in the Statement of Objects and Reasons, it is mentioned that the object of setting up of Commission was to 'obviate the criticism of arbitrariness on the part of the Executive' [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illhu (1992) Supp. (2) 651]] . There are enumerable instances when the Courts have to deal with validity of Legislative or Executive decisions of far reaching nature. It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the Executive, it will certainly affect impartiality of judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded. 18.1 Submissions of learned Attorney General are that even if appointment of judges is held to be part of independence of judiciary, choice of a particular model is not part of basic structure. The role of the Executive cannot be denied altogether nor there can be any objection to members of civil society being included in the process of appointment. The primacy of judiciary in appointment of judges is not an absolutist ideal. Power of appointment has to be seen in the light of need for checks and balances. Independence of judiciary is not a uni-dimensional test. There could be inter mingling of other wings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een recorded: (i) The word 'consultation' used in Articles 124, 217 and 222 of the Constitution meant that the opinion of consultee was normally to be accepted thereby according primacy to the judiciary; The Executive being major litigant and role of judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges; Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges; Since traits of candidates could be better assessed by the Chief Justice, the view of the Chief Justice as to suitability and merit of the candidate had higher weight; The Chief Justice of India was not to make a recommendation individually but as representing the judiciary in the manner laid down, that is, after consulting the collegium; and Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution. 18.4 Referring to the constitutional scheme, its background and interpretation, irrespective of the literal meaning of the language employed in Articles 214 and 217 of the Constitution, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commission noted that the Chief Ministers were having direct or indirect hand in appointment of Judges which results in appointments being made not on merit but on considerations of community, caste, political affiliations. The Chief Minister holding a political office is dependent on the goodwill of his party followers. The recommendation of the CJI is more likely to be on merit. An opinion noted in the report mentions that if the Executive continued to have powerful role, the independence of judiciary will disappear and the Courts will be filled with Judges who owe from appointments to politicians [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 Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory consultation with the CJI since the CJI was better equipped to assess the merit of the candidate which consultation was not provided for in respect of other high constitutional appointments [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of judges and thereby interfere with the basic feature of the Constitution. It may be mentioned that use of similar expression in Article 74 of the Constitution in the context of Executive power of the President to act on aid and advice of Council of Ministers was held to mean that the President was only a formal head. [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 damag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Madhya Pradesh in Paras 4 and 8 (reproduced in para 13 above) also supports the conclusion that appointment of judges is part of independence of judiciary and primacy of judiciary in appointment of judges is required to be retained. The power of appointment of judges cannot be exercised by the Executive as the same will affect independence of judiciary. Even after the original provisions are amended, this principle is still applicable. 18.10 At this stage, it may be mentioned that any perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature. As Dr. Ambedkar observed [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 instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the people. The Constitution was supreme and even Parliament has no unlimited amending power. Learned Attorney General rightly submitted that the last word on the validity of a constitutional amendment is of this Court. Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary [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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apted to the various changes that may take place in human affairs. 19.2. Applying the above tests it was submitted that the Ninety-Ninth Amendment was consonant with and strengthens the independence of judiciary while upholding the democracy, rule of law and checks and balances. NJAC is in sync with the needs of time and is modelled on checks and balances to ensure a democratic process with plurality of views. NJAC dilutes power of executive in favour of the judiciary. He submitted that identity test was required to be applied which means that after the amendment the amended Constitution loses the identity of the original Constitution. There is no bar to making changes and to adopt the Constitution to the requirements of changing times without touching the foundation or altering the basic constitutional pattern. He further relied upon the observations in the Indira Gandhi and Minerva Mills Ltd. cases (supra). 19.3. The learned Attorney General further submitted that the object of the amendment is to broad base the collegiate body so as to provide for participatory and collective role to the judiciary, the executive and the civil society. The executive has only one member, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding a provision unreasonable. Reliance has been placed on Mafat Lal Industries Ltd. v. Union of India (1997) 5 SCC 536 which reads as under: To the same effect are the observations by Khanna, J. in Kesavananda Bharati v. State of Kerala (SCR at p. 755: SCC p. 669). The learned Judge said: (SCC p. 821, para 1535) In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. To the same effect are the observations in T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of T.N. (1980) 3 SCC 97] (SCR at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty 1962 (3) SCR 786], this Court observed: The possibility of abuse of a statute otherwise valid does not impar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers can reject the unanimous view of the judges. Chief Justice of the High Court is not a member of the Commission and has no Constitutional role in appointment/transfer of the judges of the High Courts. Mere fact that without the judges, the Minister and the nominated members cannot make an appointment is not at par with the situation where a decision itself is taken by the CJI representing the judiciary. The Constitutional power of the Chief Justice of the High Court to initiate proposal for appointment as judge of the High Court has been done away with, at least as far as the Constitutional provisions are concerned. 19.5. The contention that the amendment strengthens the independence of judiciary or the democracy or brings about transparency or accountability is not shown to be based on any logic beyond the words. Even if in appointing two eminent members CJI is also a member of the Committee, the fact remains that the PM and the Leader of the Opposition have significant role in appointing such members, who will have power not only equal to the CJI and two senior most judges of the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of Chief Justices of High Courts or senior judges or eminent lawyers or eminent jurists whose merit is better known to senior judges. Their evaluation has to be impartial and free from any political or other considerations. Persons making selection are required to be best placed to assess their merit and suitability. Pre-dominant and decisive role of the judiciary is a requirement not only of independence of judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the Democracy. The citizens having a grievance of violation of their fundamental and legal rights against the Executive or the Legislature expect that their grievance is considered by persons whose appointments are not influenced by the Executive or the Legislature. If an appointment is perceived as being influenced by political consideration or any other extraneous influence, faith in impartiality, which is hall mark of independence of judiciary, will be eroded. The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution. 19.7. In this regard, it may be recalled that the word amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts, this Court held that the concept of rule of law required that the new mechanism should, as nearly as possible, have same standards [Union of India v. Madras Bar Asson. (2010) 11 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in First Judges' case. As already mentioned, the majority held that primacy in such matters rested with the Central Government [Para 30-First Judges' case] . The said view was subject matter of severe criticism. Eminent constitutional expert Seervai commented that the Executive was not qualified to assess the merits or demerits of a candidate. Initiation of a proposal by the Executive was against the intention of the framers of the Constitution. Political, Executive or Legislative pressure should not enter into the appointment of a judge [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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of the Constitution. The very premise and object of the amendment as reflected in the Statement of Objects and Reasons and the stand of the Union of India in its pleadings and during the course of arguments is that the primacy of judiciary was evolved by erroneous interpretation which is sought to be corrected. It is stated that the primacy of judiciary was undemocratic and denied the Executive a meaningful role. These reasons are untenable for reasons already discussed. As regards the plea of transparency and accountability, the same has to be achieved without compromising independence of judiciary. If on the perceived plea of transparency and accountability, the independence of judiciary is sought to be adversely affected by the Amendment, this will cause severe damage to the functioning of the Constitution. The primacy of judiciary, as already noticed, is integral to the independence of judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The amendment does away with the primacy of even unanimous opinion of the judicial members as such opinion is not enough to finalise an appointment. While Shri Venugopal has rightly stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Same way, constitutionally conferred judicial primacy in appointment of judges cannot be whittled down or sought to be controlled by those who are not given or allowed to take over such functions. Even granting the best of intentions, the Parliament could not act beyond the authority conferred on it by the Constitution. Thus, taking away primacy of judiciary or conferring such primacy on a body which is not at par with the said concept is certainly not a choice available with the Parliament. As already mentioned, the concept of primacy of judiciary comprises of initiating the proposal and taking a final decision in case any adverse feed back is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected. The impact thereof being that the appointment of judges could be made under the influence of the Executive represented by the Law Minister or the non-judge members in whose appointment the pre-dominant voice is not of the judiciary. The impact of such appointments will be that the judges appointed will owe their appointments to the Executive w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land) or the President (Bangladesh), where applicable; 1 (Germany) follows a multi-stage process of nomination by the Minister of Justice, confirmation by Parliamentary Committees and final appointment by the President; and 1 (United States) follows a process of nomination by the President (executive) and confirmation by the Senate (legislature). b. In all 15 countries, the executive is the final or determinative appointing authority. Out of the 9 countries with commissions, in 2 countries (South Africa and Sri Lanka) the executive has absolute majority in comparison with members of other groups (judiciary, legislature and independent persons). In 4 countries (France, Israel, Kenya and UK) there is a balanced representation of various stakeholders, including the executive. Out of 3 countries where the number of judges are in a majority (Italy, Nigeria and Pakistan), in 2 countries (Nigeria and Pakistan) the decision of the commission is subject to the vote of a parliamentary committee/Senate, while in 1 (Italy), the President of the Republic is the final appointing authority and the chairman of the judicial appointment body. In 5 of the countries without commissions (Canada, Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict with the Executive and the Legislature but mandate of the Constitution of upholding the independence of judiciary was necessary to inspire faith of citizens in impartial justice and to uphold the constitutional values like the Rule of law and the Democracy, by upholding protection of fundamental rights even against the State. He particularly made reference to the history of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to provide in Article 368 that an Amendment compromising the independence of judiciary could be made by approval by majority at a referendum. The same was brought about by the Janta Government led by leaders who were arrested during emergency. It was not approved for want of majority in Rajya Sabha. He also referred to decisions of this Court Lily Thomas 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 Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violated and any proposal for appointment of judges must be in conformity with the basic structure. He felt that the Government should consider following the model of the Appointments Commission as suggested by the Justice Venkatchaliah Commission that gave dominance to the judiciary in the appointment process. He stated that composition of the Commission is the basic issue, and a Commission with non-Judge domination would not be viable in India. 21. As already mentioned, the Constitution of India has its own background and personality [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 struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges of the Supreme Court. There is also an opportunity to suggest names before initiation of proposal. There is no bar to an expert feedback from the civil society through the constitutional functionaries involved. Thus, there is transparency as well as checks and balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution. 22.3. Learned Attorney General sought to compare the existing provision for veto by two members of collegium in appointment of Supreme Court Judges as per Third Judges' case to justify veto Under Section 6(6). As already mentioned, the role of the Law Minister and the non-judge members cannot be placed at par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with a non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary. Similarly, requirement of special majority in any other ordinary situation was not comparable with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article 124C giving power to the Parliament to regulate the procedure and to lay down the manner of selection was also unconstitutional, the impugned Act has to be struck down. It goes far beyond the procedural aspects. In Section 5(2) 'suitability criteria' is left to be worked out by Regulations. Second proviso to Section 5(2) and Section 6(6) give veto to two members of the Commission which is not contemplated by the Amendment. Section 5(3) and Section 6(8) provide for conditions for selection to be laid down by Regulations which are not mere procedural matters. Section 6 authorises the recommendations for appointment as judges of the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6(1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges. This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only one High Court may be senior most. Section 6(2) provides for seeking nomination from Chief Justices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for consideration of the surviving issue of grievances as to working of pre-existing system. APPENDIX (I) Key Provisions of the Unamended Constitution 124. Establishment and constitution of Supreme Court-( 1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in Clause (4). xxx 217. Appointment and conditions of the office of a Judge of a High Court -Every Judge of a High Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Opposition Party in the House of the People--Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission. 124B. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows: 1. (1) This Act may be called the National Judicial Appointments Commission Act, 2014. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2. In this Act, unless the context otherwise requires,-- (a) Chairperson means the Chairperson of the Commission; (b) Commission means the National Judicial Appointments Commission referred to in Article 124A of the Constitution; (c) High Court means the High Court in respect of which recommendation for appointment of a Judge is proposed to be made by the Commission; (d) Member means a Member of the Commission and includes its Chairperson; (e) prescribed means prescribed by the rules made under this Act; (f) Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall seek nomination from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court. (3) The Commission shall also on the basis of ability, merit and any other criteria of suitability as may be specified by Regulations, nominate name for appointment as a Judge of a High Court from amongst persons who are eligible to be appointed as such Under Clause (2) of Article 217 of the Constitution and forward such names to the Chief Justice of the concerned High Court for its views. (4) Before making any nomination Under Sub-section (2) or giving its views Under Sub-section (3), the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court as may be specified by Regulations. (5) After receiving views and nomination Under Sub-sections (2) and (3), the Commission may recommend for appointment the person who is found suitable on the basis of ability, merit and any other criteria of suitability as may be specified by Regulations. (6) The Commission shall not recommend a person for appointment unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower, such rules may provide for all or any of the following matters, namely: (a) the fees and allowances payable to the eminent persons nominated Under Sub-clause (d) of clause (1) of Article 124A of the Constitution; (b) the terms and other conditions of service of officers and other employees of the Commission Under Sub-section (2) of Section 8; (c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules. 12. (1) The Commission may, by notification in the Official Gazette, make Regulations consistent with this Act, and the rules made thereunder, to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following matters, namely: (a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court Under Sub-section (2) of Section 5; (b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court Under Sub-section (3) of Section 5; (c) the criteria of suitability with respect to appointment of a Judge of the High Court Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Clause (2) of Article 124 and Clause (1) of Article 217 of the Constitution with respect to the meaning of consultation as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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