SUPREME COURT ADVOCATES-ON-RECORD  ASSOCIATION AND ANOTHER versus UNION OF INDIA
[2015] 13 S.C.R. 1, Supreme Court of India, 2015
Outcome: Unknown
Segment: Ratio
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(2015] 13 S.C.R. 
A 
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 
8 
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 
c alternative suggested would clearly amount to judicial 
overreach and the judiciary rewriting the statute. The only 
rational course is to interpret the law as it is and if it is 
constitutionally valid so be it and if it is constitutionally invalid 
so be it. It is not.advisable or possible to rewrite the law when 
o the language of the statute is express. 
493. As mentioned above in considerable detail, the 
independence of the judiciary took up so much discussion time 
of several Committees, the Constituent Assembly and various 
other bodies and institutions. Several legal luminaries have 
E also devoted considerable effort and given a thoughtful study 
to the independence of the judiciary. There was a purpose to 
it, namely, that the independence should not be subverted via 
external or internal pressures. Through the medium of the 991h 
F Constitution Amendment Act and the NJAC Act, this 
independence is
subtly put to jeopardy. The President has 
virtually no role to play in the appointment of judges, the Chief 
Justice of India is sidelined in the process and a system that 
is subject to possible erosion is put in place. Justice O'Connor 
G said: 'Judicial independence doesn't happen all by itself ..... 
H 
It's tremendously hard to create, and easier than most people 
imagine to destroy.' The 991h Consti.tution Amendment Act and 
the NJAC Act puts us face to face with this truism in respect of 
the fragile bastion.
SUPREME COURT ADVOCATES-ON-RECORD 
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-ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
494. The sum and substance of this discussion is that A 
the unanimous opinion of the Judiciary can be rejected by two 
eminent persons or one eminent person and the Law Minister 
(whose opinion is subject to the opinion of the Council of 
Ministers, whom he/she represents); the unanimous opinion 
of the judiciary as an institution, an opinion that was respected 
B 
(and deservedly so) counts for virtually nothing with the passage 
of the 991h Constitution Amendment Act and the NJAC Act; the 
Chief Justice of India is rendered, by the 991h Constitution 
Amendment Act to a mere voting statistic and one among six 
in the NJAC virtually stripping him/her of the constitutional 
C 
responsibility of appointing judges to the superior courts and 
denuding him/her of the authority conferred by history, 
constitutional convention and the Constitution; the Chief Justice 
of India and the institution of the judiciary is now subject to a 
D 
veto by civil society in its decisions. The entire scheme of 
appointment of judges postulated by the Constituent Assembly 
is made topsy-turvy by the 991h Constitution Amendment Act 
and the NJAC Act. If this does not alter the basic structure of 
the Constitution, what does? 
(c) Eminent persons and the veto 
E 
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 F 
selecting a )udge 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 
G 
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 
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[2015] 13 S.C.R. 
A 
Scheduled Castes, the Scheduled Tribes, Other Backward 
Classes, Minorities or Women. 
496. The apprehension expressed by some learned 
counsel appearing forthe petitioners is that since no guidelines 
B 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 will be politically motivated. So also, 
acknowledged eminent persons might not be nominated to 
c the NJAC. But then, who is an eminent person? 
497. In A.K. Roy v. Union of /ndia463 reference was 
made to the difficulty in framing precise definitions. Although 
the decision pertained to preventive detention and criminal 
law, the following observation is pertinent in the context of the 
D present discussion: 
"The impossibility of framing a definition with 
mathematical precision cannot either justify the use of 
vague expressions or the total failure to frame any 
E 
definition at all which can furnish, by its inclusiveness at 
least, a safe guideline for understanding the meaning of 
the expressions used by the legislature. But the point to 
note is that there are expressions which inherently 
comprehend such an infinite variety of situations thilt 
F 
definitions, instead of lending to them a definite meaning, 
can only succeed either in robbing them of their intended 
amplitude or in making it necessary to frame further 
definitions of
the terms defined."464 
G 
498. It is also necessary to notice the view expressed in 
the Second Judges case by Justice Verma speaking for the 
majority. The learned judge was of the opinion that arbitrariness 
in the exercise of discretion can be minimized through a 
463 (1982) 1 SCC 271 (Five Judges Bench) 
H 
464 Paragraph 61
SUPREME COURT ADVOCATES-ON-RECORD 
903 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
collective decision. It was observed as follows: 
A 
"The rule of law envisages the area of discretion to be 
the minimum, requiring only the application of known 
principles or guidelines to ensure non-arbitrariness, but 
to that limited extent, discretion is a pragmatic need. 
B 
Conferring discretion upon high functionaries and, 
whenever feasible, introducing the element of plurality 
by requiring a collective decision, are further checks 
against arbitrariness. This is how idealism and 
pragmatism are reconciled and integrated, to make the c 
system workable in a satisfactory manner. Entrustment 
of the task of appointment of superior judges to high 
constitutional functionaries; the greatest significance 
attached.to the view of the Chief Justice of India, who is 
best equipped to assess the true worth of the candidates D 
for adjudging their suitability; the opinion of the Chief 
Justice of India being the collective opinion formed after 
taking into account the views of some of his colleagues; 
and the executive being permitted to prevent an 
appointment considered to be unsuitable, for strong 
E 
reasons disclosed to t)1e 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 F
Justice of India or the Prime Minister."465 
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 
G 
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 
"' Paragraph 468 
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[2015] 13 S.C.R. 
afforded equal opportunity so that the judicial 
admiflistration 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." 466 
8 
500. In Centre for PIL v. Union of lndia467 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 to the effect that a Selection Committee 
C 
consisting of the Prime Minister, the Minister of Home Affairs 
and the Leader of the Opposition in the Lok Sabha would make 
a recommendation to the President who would then appoint 
the Central Vigilance Commissioner or the Vigilance 
Commissioners, as the case may be, by warrant under his or 
o her hand and seal. In this context, this Court held that 
Parliament had put its faith in a High Powered Committee and 
it is presumed that the High Powered Committee entrusted 
with wide discretion would exercise its powers in accordance 
E 
with the Act objectively and in a fair and reasonable manner. 
501. It was pointed out by Mr. Arvind Datar, learned senior 
counsel appearing for one of the petitioners that a large 
number of statutes mention the presence of eminent persons 
in a body, including some that are subject specific. However, it 
F was pointed out by the learned Attorney-General that in a 
random sampling of some of
these statutes, it has been found 
that none of them has such a High Powered Committee as in 
the Central Vigilance Commission Act for nominating or 
recommending a person for appointment to a post. 
G 
502. Apart from anything else, it was submitted by the 
learned Attorney-General that the presence of eminent persons 
in the NJAC would lend diversity in the composition of the 
'selection panel' .and that this would necessarily reflect the 
466 Paragraph 216(3) 
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4• 1 (2011) 4 sec 1
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
views of society. Reference in this context was made to 
A 
Registrar General, High Court of Madras v. R. Gandhi468 
wherein it was held as follows: 
"Appointments cannot be exclusively made from any 
isolated group nor should it be pre-dominated by 8 
representing a narrow group. Diversity therefore in judicial 
appointments to pick up the best legally trained minds 
coupled with a qualitative personality, are the guiding 
factors that deserve to be observed uninfluenced by mere 
considerations of individual opinions. It is for this reason c 
that collective consultative process as enunciated in the 
aforesaid decisions has been held to be an inbuilt 
mechanism against any arbitrariness."469 
503. Under these circumstances, there can be little 
objection to the participation by eminent persons as D 
consultants in the appointment process; In fact, Justice Verma 
acknowledged that he had sought the views of eminent lawyers 
while considering recommendations for the appointment of 
judges. If the Committee cannot be trusted to nominate 
'eminent' persons, perhaps no other committee can. The trust E 
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 F 
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."470 
G 
504. It is, therefore, not advisable to be alarmist, as some 
4ss (2014) 11 sec 547 
" 9 Paragraph 163 
470 Paragraph 20 
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[2015] 13 S.C.R. 
A 
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 
B 
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 Committee is laid 
out, the nomination of eminent persons will be through a majority 
decision of the members of the Committee.471 What this means 
C 
is that the Chief Justice of India would have a subsidiary role 
in the nomination process if he/she is in the minority. What this 
also means is that an executive cum legislative influence would 
sneak in in the process of nomination of eminent persons. In 
0 
other words, from the word 'go' the Chief Justice of India is 
sidelined, directly or indirectly, in the process of appointment 
of judges of the High Courts and the Supreme Court. 
505. It is also not possible to accept the contention that 
the presence of eminent persons with a voting right in the NJAC 
E would have no impact on the independence of the judiciary, 
but would be beneficial in terms of bringing about diversity. 
The same result could very well be achieved, as suggested by 
. Justice Verma without altering the basic structure
of the 
F 
Constitution, without conferring a veto on the consultants. 
506. What makes matters worse is that in the absence 
of a quorum or unanimity in the nomination of eminent persons, 
the Committee could make the nomination without consulting 
the Chief Justice of India. Therefore, if for some valid reason, 
G the Chief Justice of India is unable to attend a meeting, the 
Committee could nominate eminent persons (perhaps 
believing in the concept of a committed judiciary) to the NJAC 
and influence its decisions to accept a committed judiciary 
471 The discussion in paragraphs 79 to 86 of the Report is quite useful. 
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907 
ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
rather than an independent judiciary. 472 It is unlikely that this A 
would happen, butifthe political executive is determined, at 
some point of time, to have a committed judiciary, the 
nomination of politically active eminent persons to the NJAC 
disregarding the view of the Chief Justice of India is a real 
· possibility. 
B 
507. Another objection raised to the 'eminent person' 
category is that such a person might not have any knowledge 
of the requirements of the judiciary and would not be able to 
make any effective contribution in the selection of a judge. It c 
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 D 
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 E 
(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. 
F 
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 all. In 
G 
472 It was held in lshwar Chandra v. Satyanarain Sinha, (1972) 3 SCC 383 in 
paragraph 10 of the Report: " ... where there is no rule or regulation or any 
other provision for fixing the quorum, the presence of the majority of the 
members would constitute it a valid meeting and matters considered thereat 
cannot be held to be invalid." 
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[2015] 13 S.C.R. 
A 
response, the learned Attorney-General submitted that the 
presence of an eminent person, outside the field of law would 
bring about a much needed diversity in the appointment of 
judges. The experience in the United Kingdom, as explained 
by Jack Straw, does not seem to bear out this assumption. In 
B his lecture, he stated: 'The assumption on diversity- na"lve as 
it turned out-was that if we changed the process, we would 
change the outcome.' In any event, which category should or 
should not be represented in the NJAC through an eminent 
person is essentially a matter of policy and that policy does 
C not appear to be perverse in any manner, but does require a 
rethink. 
509. The real cause for unhappiness is the second 
proviso to Section 5(2) of the NJAC Act which effectively 
o confers a veto on each member of the NJAC. What is 
objectionable about the veto (a part of the package deal 
referred to by the learned Attorney-General) is that it can also 
be exercised by two eminent persons whose participation in 
the appointment process was not even imagined by the 
E Constituent Assembly: Article 124(2) of the Constitution (prior 
to its amendment) had only two constitutional authorities 
involved in the appointment process- the President and the 
Chief Justice of India. The 99th Constitution Amendment Act 
has introduced a third and a previously non-constitutional 
F 
'authority' namely an eminent person. Two eminent
persons 
who had no role to play in the appointment process prior to the 
99th Constitution Amendment Act have suddenly assumed 
Kafkaesque proportions and together they can paralyze the 
appointment process, reducing the President and the Chief 
G Justice of India to ciphers for reasons that might have nothing 
to do with the judicial potential or fitness and suitability of a 
peirson considered for appointment as a judge. That they might 
not do so is another matter altogether but in a constitutional 
H issue as grave as the appointment of judges, all possibilities
SUPREME COURT ADVOCATES-ON-RECORD 
909 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
require to be taken into consideration since it affects the 
A 
independence of the judiciary and eventually the rights, 
including the fundamental rights, of the people. The conferment 
of a veto to any member of the NJAC, eminent person or 
otherwise, is clearly an unconstitutional check on the authority 
of the President and the Chief Justice of India. 
B 
510. The sum and substance of this discussion is that in 
principle, there can be no objection to consultation with eminent 
persons from all walks of life in the matter of appointment of 
judges, but that these eminent persons can veto a decision c 
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 D 
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 
E 
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 
F 
. 
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 Law Minister as a member of the 
NJAC might prove detrimental to a fair selection, if not counter-
G 
productive. 
512. It is true that the Union of India is the largest litigant 
in the country and that was recognized in the Second Judges 
case. It was said by Justice Pandian as follows: 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
"No one can deny that the State in the present day has 
become the maj9r litigant and the superior courts 
particularly the Supreme Court, have become centres 
for turbulent controversies, some of which with a flavour 
of political repercussions and the Courts have to face 
tempest and storm because their vitality is a national 
imperative. In such circumstances, therefore, can the 
Government, namely, the major litigant be justified in 
enjoying absolute authority in nominating and appointing 
its arbitrators. The answer would be in the negative. If 
such a process is allowed to continue, the independence 
of judiciary in the long run will sink without any trace."473 
513. Similarly, Justice Kuldip Singh also mentioned that 
the Union of India is the single largest litigant in the country. 
D The learned judge said: 
E 
F 
G 
H 
"In S.P. Gupta case this Court construed the words in 
Articles 124(2) and 217(1) of the Constitution by taking 
the clock back by forty years. The functioning of the Apex 
Judiciary during the last four decades, the expanding 
horizon of, 'judicial review', the broader concept of 
'independence of judiciary', practice and precedents in 
the matter of appointment of judgeswhich ripened into 
conventions and the role of the executive being the 
largest single litigant before the courts, are some of the. 
vital aspects which were not adverted to by this Court 
while interpreting the constitutional
provisions."474 
514. The learned judge expressed the same sentiment 
far more emphatically in the following words: 
"Then the question which comes up for consideration is, 
can there be an independent judiciary when the power 
of appointment of judges vests in the executive? To say 
473 Paragraph 207 
474 Paragraph 327
SUPREME COURT ADVOCATES-ON-RECORD 
911 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
yes, would be illogical. The independence of judiciary is A 
inextricably linked and connected with the constitutional 
process of appointment of judges of the higher judiciary. 
'Independence of Judiciary' is the basic feature of our 
Constitution and if it means what we have discussed 
above, then the Framers of the Constitution could have B 
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 C 
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 D 
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 
E 
to appreciate that the interpretation, it gave, was not in 
conformity with broader facets of the two concepts -
'independence of judiciary' and 'judi9ial review' - which 
are interlinked ."475 
In view·ofthis, there can be no doubtthat the Government F
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 is extremely 
anomalous.476 
515. Historically, and I have quoted chapter and verse 
from virtually every relevant committee in this regard, the 
475 Paragraph 335 
476 The position that the State is a major litigant in the country remains the 
same even today. 
· 
G 
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[2015] 13 S.C.R. 
A 
executive was always intended to be kept out of the decision-
taking process in the matter of appointment of judges. What is 
sought to be achieved by including the Law Minister in the 
NJAC is to cast a doubt on the wisdom of legal luminaries, Dr. 
Ambedkar and the Constituent Assembly in keeping the 
B executive out of the decision-taking process in the appointment 
of judges. 
516. Nevertheless, it is true that inputs from the executive 
are important in the process of taking a decision whether a 
c person should or should not be appointed as a judge of a High 
Court or the Supreme Court. But providing inputs by the 
executive is quite different from the process of taking a decision 
by the executive or the executive being involved in the process 
of taking a decision. While it must be acknowledged that the 
o Law Minister is only one of six in the NJAC but being a Cabinet 
Minister representing the entire Cabin~t and the Government 
of India in the NJAC, the Law Minister is undoubtedly a very 
important and politically powerful figure whose views can, 
potentially, have a major impact on the views that other 
E 
members of the NJAC may hold. Since the Law Minister is, by 
virtue of the office held, potentially capable of influencing the 
decision of a member of the NJAC, it would be inappropriate 
for the Law Minister to be a part of the decision-taking process. 
The selection process must not only be fair but must appear
to 
F 
be fair. 
· 
517. It must be realize.d and appreciated that the tectonic 
shift in several countries towards constituting a judicial 
appointment commission is taking place only to ensure that 
G the executive does not have a role in the appointment of judges. 
H 
The learned Attorney-General supported the shift but if the trend 
is to be taken seriously, the Law Minister can have no place in 
any commission or, as in the present case, in the NJAC. 
Therefore, while the ggth Constitution Amendment Act and the
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
NJAC Act attempt to set up a body intended to be independent A 
of the executive, the NJAC that has been set up has an 
important member of the political executive as a part of this 
body, which is rather anachronistic. 
518. It must also be realized that as mentioned in the 
B 
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 c 
commission for the higher judiciary.477 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 so. The issues, 
debates, discussions and considerations in these countries 
D 
would be different from ours, but merely because these and 
other countries are looking towards a judicial appointment 
commission is no reason for India to do so. A reference was 
also made to South Africa but, as everyone knows, diversity 
issues in that country are of great concern post apartheid. It is, 
E 
therefore, odious to compare the judicial appointment systems 
in other countries with our country and to lift ideas and concepts 
that might be workable in those countries without considering 
whether they
could be adopted or adapted in our country. 
519. In Australia, an article suggesting adoption of the 
UK Judicial Appointments Commission introduced by the CRA 
477 Justice Bhagwati: "We may point out that even countries like Australia and 
F 
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 
G 
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) 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
has this to say about jµdicial appointments and political 
patronage (which might be possible in the NJAC as 
established): 
B 
c 
D 
E 
F 
G 
H 
"While the collective strength and quality of the Australian 
judiciary is not in doubt, it is the case that particular 
appointments have attracted criticism, either in relation 
to the character and ability of the individual chosen or 
their conduct while in office. It is a notorious fact that 
judicial officers have been appointed, including to the 
High Court, whose character and intellectual and legal 
capacities have been doubted and whose appointments 
have been identified as instances of political patronage. 
What is essential is that decisional independence be 
guaranteed to judicial officers. The core of judicial 
independence is freedom from influence in the central 
judicial task of adjudicating disputes about legal rights 
that arise between private parties, between the State and 
private parties, and (in a federation) between 
compon.ents of the State. The core is protected through 
institutional arrangements such as tenure, remuneration 
and the jurisdictional separation of powers. As we have 
already noted, it is inescapable that politics will have a 
role to play in the appointment process. However, if 
appointments are perceived to be made on the basis of 
political patronage there is a threat to (at least the 
appearance of) decision.al independence. It is
impossible -
and undesirable- to remove the political 
entirely from the appointments process. Indeed, in our 
view, 'political' considerations, in the sense of 
responsibility and accountability for appointments, need 
to be intensified rather than obscured. What an 
appointments model should attempt to do is attenuate
· SUPREME COURT ADVOCATES-ON-RECORD 
915 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.) 
the direct influence of the political branch on the A 
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. "478 
B 
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 C 
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 D 
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. Enforcing and embracing the 
principles and values of a fundamentally new legal order E 
· is also a critical attitudinal change that will have 
substantive implications for the judicial interpretation of 
the law and the creation of a new constitutional 
jurisprudence. These reforms are all no doubt necessary 
considerations for judicial transformation. Courts must 
F 
therefore function efficiently so that judges can dispense 
justice to all,
most competently. Fundamental to this 
principle is that when appointing judges consideration 
must be given to the need for the judiciary to reflect G 
broadly the racial and gender composition of South 
Africa. 
478 Appointing Australian Judges: A New Model by Simon Evans and John 
Williams. [2008] Sydney Law Review Volume 30 page 295. See hllQ1L 
sydney edu au/Jawlslrls!r30 2/Evans.pdf 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
In a society such as ours, where patriarchy is so deeply 
entrenched, affecting adversely the everyday lives of so 
many women, including women in the law, the strategic 
value of women's participation on the Bench and 
positions of power and authority should not be 
underestimated. Their development management style, 
the influence of the unique perspectives they bring to the 
adjudicative task and even the mere symbolism of their 
presence there could bring enormous returns for the 
transformation process itself and respect for women in 
society at large. The need for women both in the judiciary 
as a whole and in leadership positions in particular 
cannot be exaggerated. Although, we have come a long 
way, we must agree that we have just scratched the 
surface. We must step up our efforts. Some things must 
change."479 
The considerations in different countries are, to put it 
simply, different. We need to have our own indigenous system 
suited to our environment and our own requirements. 
521. In a Position Paper of 11th December, 2011 on the 
Appointment of Judges, the Law Society of Botswana 
emphasized that different legal systems require different 
responses in the appointment of judges. It was said: 
"Throughout the region, the relevance of judicial 
independence to the rule of law, democracy and the 
protection and promotion of human rights is undisputed. 
This acknowledgment notwithstanding,
judicial 
independence continues to face threats that compromise 
not only individual judges but more so the institutions 
vested with the responsibility of dispensing justice. To 
that end, judicial independence remains one of the 
cornerstones of democracy and constitutionalism the 
479 http :l/www.sabar.co .za/Jaw-iournals/201 O/decem ber/2010-decem ber-
H 
voJ023-no3-pp43-48.odf
SUPREME COURT ADVOCATES-ON-RECORD 
917 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
world over, remaining the central goal of most legal 
A 
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. 
B 
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 c 
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 o 
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 E 
independence and public confidence in the judiciary."480 
522. It was pointed out by the learned Attorney-General 
that at all times since Independence, the Law Minister has been 
a part of the process in the appointment of judges. In fact it is 
F 
through the Law Minister that important inputs are placed 
before the
Chief Justice of India particularly with regard to 
matters that the Chief Justice of India may not be aware of, 
such as the antecedents and personal traits of the person being 
considered for appointment as a judge. There is, therefore, 
G 
no reason to now exclude the Law Minister from this process. 
523. There is a distinction, as mentioned above, between 
480 http://www. lawsoci ety.org bw/news/Positio n %20 Pa per%20on%20 
Appointment%20of%20Judges%20Einal%2014%2Qjune%2Q2012%2Q'Einal'pdf 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A the Law Minister providing inputs to the Chief Justice of India 
and the Law Minister having a say in the final decision 
regarding the appointment of a judge of a High Court or the 
Supreme Court. While the former certainly cannot be objected 
to and in fact would be necessary, it is the participation in the 
B decision-taking process that is objectionable. In other words, 
the Law Minister might be a part of the decision-making 
process (as the position was prior to the 991h Constitution 
Amendm·ent Act) but ought not to be a part of the decision-
taking process. This distinction is quite crucial. The voting 
C participation of the Law Minister in the decision-taking process 
goes against the grain of the debates in the Constituent 
Assembly and clearly amounts to an alteration of the basic 
structure of the Constitution. 
o 
524. It was faintly contended by Mr. Nariman that having 
only the Law Minister of the Government of India as a member 
of the NJAC and not having his/her counterpart from the State 
Government as a member of the NJAC may have an impact 
on federalism in our Constitution. Apart from mentioning it, no 
E serious argument was advanced in this regard, perhaps 
because the principal objection is to the representation of the 
Government of India in the NJAC. In view of the fact that no 
detailed submissions were made in this regard, I would not 
F 
like to express any opinion on this contention. 
525. The sum
and substance of this discussion is that 
the struggle for the independence of the judiciary has always 
been pivoted around the exclusion of the executive in decision-
taking, but the inclusion of the Law Minister in the NJAC is 
G counter-productive, historically counter-majoritarian and goes 
against the grain of various views expressed in various 
committees- more so since the Law Minister can exercise a 
veto in the decision-taking body; the presence of the Law 
Minister in the NJAC is totally unnecessary and ill-advised; 
H
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
the presence of the Law Minister in the NJAC casts a doubt A 
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 
B 
made it mandatory for the President to consultthe Chief Justice 
of India in the appointment of judges. The rationale behind this 
has already been discussed. The 99
111 Constitution Amendment 
Act completely does away with the mandatory consultation. 
The President is not expected to consult anybody in the C 
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 D 
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 process and in a sense reduces the President 
(as an individual) to a rubber stamp.481 Similarly, as mentioned 
above the Chief Justice of India is reduced to just another 
number in the NJAC. 
527. Mandatory consultation between the President and 
E. 
the Chief Justice of India was well thought out by the Drafting 
Committee and the Constituent Assembly but has now been 
F 
made farcical by the 991h Constitution Amendment
Act, for the 
reasons mentioned above. Article 124(2) of the Constitution 
(prior to its c:imendment) placed the President and the Chief 
Justice of India on an equal pedestal. It is this that made the 
consultation between these two constitutional authorities G 
meaningful and made one constitutional authority act as a 
check on the other. This was the 'partnership approach' that 
the Constituent Assembly had in mind and this was given flesh 
481 This may be contrasted with the direct exchange of views between the 
President and the Chief Justice of India referred to earlier. 
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SUPREME COURT REPORTS 
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A 
and blood through, what Dr. Rajeev Dhavan referred to as 
'institutional participation' in the Second Judges case. The 
importance of the Second Judges case lies not so much in 
the shared responsibility but the 'institutional participation' of 
the judiciary in the appointment process integrated with the 
B participation of the President. This is now missing. 
528. What is the importance of the mandatory 
consultation? There are two crucial factors to be carefully 
considered before a person is appointed as a judge of the 
c Supreme Court or a High Court. These are: (1) The 
professional skills, judicial potential, suitability and 
temperament of a person to be a good judge, and (2) The 
personal strengths, .weaknesses, habits and traits of that 
person. As far as the professional skills, judicial potential, 
o suitability and temperament of a person being a good judge 
is concerned, the most appropriate person to make that 
assessment would be the Chief Justice of India (in consultation 
with the other judges) and not somebody from outside the legal 
fraternity. On the other hand, as far as the personal strengths, 
l:: 
weaknesses, habits and traits of a person are concerned, 
appropriate inputs can come only from the executive, since 
the Chief Justice of India and other judges may not be aware 
of them. It is for this reason that the Constituent Assembly made 
it mandatory for consultation between the Chief Justice of
India 
F (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 
G appointment as. a judge. In other words, the Chief Justice of 
India is the 'expert' with regard to potential while the executive 
is ttie 'expert' with regard to the antecedents and personal 
traits. Since these two facets of the personality of a would-be 
H judge are undoubtedly distinct, there cannot be a difference of
SUPREME COURT ADVOCATES-ON-RECORD 
921 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
opinion between the judiciary and the executive in this regard 
A 
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 
B 
judiciary to manage the justice delivery system and it is for 
him/her to take the final call whether the antecedents or 
personal traits of a person will or will not interfere in the 
discharge of functions as a judge or will, in any manner, impact c 
on the potential of becoming a good judge. As stated by Jack 
Straw, what is important is that iris necessary to get it right the 
first time and every time. There can be a situation where the 
personal traits of a person may be such as to disqualify that 
person from being appointed as a judge and there can be a 
D 
situation where the personal traits, though otijected to, would 
not have any impact whatsoever on the potential of that person 
becoming a good judge. For example, in the recent past, there 
has been considerable debate and discussion, generally but 
not relating to the judiciary, with regard to issues of sexual 
E 
orientation. It is possible that the executive might have an 
objection to the sexual orientation of a person being considered 
for
appointment as a judge but the Chief Justice of India may 
be of the opinion that that would have no impact on his/her 
ability to effectively discharge judicial functions or the potential 
F 
of that person to be a good judge.482 In situations such as this, 
it is the opinion of the Chief Justice of India that should have 
greater weight since, as mentioned earlier, it is for the Chief 
Justice of India to efficiently and effectively manage the justice 
delivery system and, therefore, the last word should be with 
G 
the Chief Justice of India, unanimously expressed. 
482 Australia and South Africa have had a gay judge on the Bench. The present 
political executive in India would perhaps not permit the appointment of a gay 
person to the Bench. 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
530. The 991h Constitution AmendmentAct and the NJAC 
Act not only reduce the Chief Justice of India to a number in 
the NJAC but also convert the mandatory consultation between 
the President and the Chief Justice of India to a dumb charade 
with the NJAC acting as an intermediary. On earlier occasions, 
B Parliament enhanced its power through constitutional 
amendments, which were struck down, inter alia, in Indira 
Nehru Gandhi and Minerva Mil/s.483 The ggih Constitution 
Amendment Act unconstitutionally minimizes the role of the 
Chief Justice of India and the judiciary to a vanishing point in 
C 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 
0 
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 the 
President to consult the Chief Justice of India for the 
E appointment of judges of the Supreme Court or the High Court 
when equally important, if not more important constitutional 
authorities could be appointed by the President without 
consulting anybody and in his/her 'unfettered discretion'? The 
483 In l.R. Coelho v. State of
Tamil Nadu, (2007) 2 SCC 1 this Court observed 
F 
in paragraph 138 of the Report: "The relevance of Indira Gandhi case, Minerva 
Mills case and Waman Rao case [(1981) 2 SCC 362] lies in the fact that every 
improper enhancement of its own power by Parliament, be it clause (4) of 
Article 329-A or clauses (4) and (5) of Article 368 or Section 4 of the 42nd 
Amendment has been held to be incompatible with the doctrine of basic 
G 
structure as they introduced new elements which al\ered ~he 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." 
H
·'"' 
SUPREME COURT ADVOCATES-ON-RECORD 
923 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
reason for the 'special' treatment in the case of appointments A 
to the judiciary is because the Constituent Assembly 
appreciated and acknowledged and, therefore, accepted the 
necessity of preserving and protecting the independence of 
the judiciary, a significant pillar of parliamentary democracy. It 
also acknowledged that the most appropriate person to guide B 
and advice the President in the appointment of judges would 
be none other than the Chief Justice of India. It was known to 
the Constituent Assembly that the rights of the people, including 
their fundamental rights, need protection against arbitrary 
executive power and excessive legislative action and unless C 
the judiciary steps in and grants that protection, such arbitrary 
power or excessive action can be misused and abused. This 
had happened in pre Independent India and has happened in 
our recent history. The 991h Constitution Amendment Act and 
the NJACAct positively indicate (unconstitutionally) that now D 
the Chief Justice of India and the other judges are not 
necessarily the best persons to advise the President on the 
appointment of judges. 
532. Underscoring the importance of the appointment of E 
independent judges (toAmericans, and this would equally apply 
to Indians) it has been said that: 
"Judicial appointments are important because judges 
matter, not just to academics, politicians, and 
F
practitioners, but to all Americans. Judges play an 
increasingly significant role in everyday life decisions. It 
follows that the process by which they are selected 
matters. It likewise follows that because of the perceived 
importance of appointing judges, the appointments G 
process breeds contention."484 
533. Without an independent judiciary, not only 'everyday 
484 Carly Van Orman, Introduction to the Symposium: The Judicial Process 
Appointments Process. 10 Wm. & Mary Bill Rts. J. 1 (2001 ). http:// 
scholarship.law.wm.edu/wmborj/vol1 O/iss1 /2 
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924 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
life decisions' are affected but a dominant executive can ensure 
that the statutory rights would have no meaning and the 
fundamental rights of the people of the country can be easily 
trampled upon. Highlighting the impact of the judiciary 
(generally) on the Rule of Law and particularly on the rights 
B 
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 
c 
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."485 
D 
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 
E judiciary and perhaps spent more time debating it than any 
other topic. 
535. In this regard, it is worth recalling the submission of 
Mr. Palkhivala in Kesavananda Bharatiwhile laying the basis 
F for the 'width of power' test (later adopted in M. Nagaraj) that: 
G 
H 
" ... the test of the true width of a power is not how probable 
it is that it may be exercised but what can
possibly be 
done under it; that the abuse or misuse of power is entirely 
irrelevant; that the question of the extent of the power 
cannot be mixed up with the question of its exercise and 
that when the real question is as to the width of the power, 
485 'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE, 
formerly Chief Justice of Australia http://www judcom nsw gov au/publications/ 
educatjon-monographs-1 /monograph 1 /fbmason .htm
SUPREME COURT ADVOCATES-ON-RECORD 
925 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
expectation that it will never be used is as wholly irrelevant A 
as an imminent danger of its use. The court does not 
decide what is the best and what is the worst. It merely 
decides what can possibly be done under a power if the 
words conferring it are so construed as to have an 
unbounded and limitless width, as claimed on behalf of B 
the respondents."486 
536. Now, consider this - given the width of the power 
available under the 991h Constitution Amendment Act if 
committed judges are appointed (as was propagated at one c 
point of time and it can get actualized after the 991h Constitution 
Amendment Act) then no one can expect impartial justice as 
commonly understood from a 'committed' Supreme Court or 
a High Court. The Constituent Assembly wished to completely 
avoid this and that is why considerable importance was given D 
to the process of appointing judges and the independence of 
the judiciary. 'Common to all forms of judicial function is 
independent, impartial and neutral adjudication, though there 
is a question as to the possibility of achieving completely neutral 
adjudication.'487 The 991h Constitution Amendment Act and the E 
NJAC Act lead to the clear possibility of a committed judiciary 
being put in place. If this does not violate the basic structure of 
the Constitution, what does? 
537. The sum and substance of this discussion is that 
F 
mandatory consultation
between the President and the Chief 
Justice of India postulated in the Constitution is by-passed -
bringing about a huge alteration in the process of appointment 
of judges; the 991h Constitution Amendment Act and the NJAC 
Act have reduced the consultation process to a farce - a 
G 
meaningful participatory consultative process no longer exists; 
486 Paragraph 531 
487 'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE. 
formerly Chief Justice of Australia http:Uwww.judcom nsw gov au/publications/ 
education-monographs-1/monograph1/fbmason htm 
H 
\
926 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
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 
B 
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 
C 
is concerned, the ggth 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 
D 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 
E 
convention that has developed over the last several decades 
is that a recommendation for the appointment of a judge of the 
High Court originates from the Chief Justice of the High Court. 
This has now been given a go-bye by the 991h Constitution 
F Amendment Act and the NJAC Act. The entire initiation of the 
appointment process has now been
overhauled. 
539. In terms of Section 6(2) of the NJAC Act, the 
recommendation for the appointment of a judge of a High Court 
cannot originate from the Chief Justice of the High Court but 
G the NJAC will seek a nomination for that purpose from the Chief 
Justice of the High Court. In other words, the initiative for the 
appointment of a judge of the High Court is wrested from the 
Chief Justice of the High Court by the NJAC. There is a 
qualitative difference between the Chief Justice of a High Court 
H
SUPREME COURT ADVOCATES-ON-RECORD 
927 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
nominating a person for appointment as a judge of a High Court A 
on the initiative of the NJAC (Section 6(2) of the NJAC Act) 
and the Chief Justice of a High Court recommending a person 
for appointment as a judge of a High Court (Article 217(1) of 
the Constitution). With such a major departure from the 
constitutional obligation and the constitutional convention 
B 
established over the last several decades, the dispensation 
might encourage canvassing support for a nomination - a 
somewhat similar occurrence was looked down upon by the 
LCI in its 141h Report. 
540. However, what is more disturbing and objectionable 
is that the consultation process with the Chief Justice of the 
High Court after a nomination is made by him/her of a person 
c 
for appointment as a judge of that High Court has been done 
away with. The process of consultation is an integrated and 
D 
participatory process but by virtue of the 991h Constitution 
Amendment Act and the NJACAct only a nomination is sought 
from the Chief Justice of a High Court by the NJAC. Thereafter, 
the Chief Justice has no role to play. This is clear from Section 
6(7) of the NJAC Act which mandates the NJAC to elicit in 
E 
writing the views of the Governor and the Chief Minister of the 
State before recommending a person for appointment as a 
judge of the High Court, but not the views of the Chief Justice, 
who is reduced to a mere
nominating officer, whose assigned 
task is over as soon as the nomination is made. 
F 
541. The combined effect of the 991h Constitution 
Amendment Act and Section 6 of the NJAC Act is that the 
entire control over the appointment of a judge of a High Court 
is taken over by the NJAC and the paradigm is completely G 
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 
H
928 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 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 
B Court judges that most Supreme Court judges would be 
appointed, ifthe 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. 
c 
D 
E 
F 
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 Shetreet488 it is stated by Sarkar 
Ali Akkas of the University of Rajshahi, Bangladesh that: 
"The appointment of judges is an important aspect of 
judicial independence which requires that in 
administering justice judges should be free from all sorts 
of direct or indirect interference or influences. The 
principle of the independence of the judiciary seeks to 
ensure the freedom of judges to administer justice 
impartially, without any fear or favour. This freedom of 
judges has a close relationship with judicial appointment 
because the appointment system has a direct bearing 
on the impartiality, integrity and independence of 
judges."489 
543. Essentially, the ggth Constitution
Amendment Act 
replaces or substitutes the collegium system of appointment 
of judges by the NJAC. It must be realized that a judicial 
G appointments commission (by whatever name called) is a 
488 Shimon Shetreet, Judges on Trial (North-Holland Publishing Company, 
Amsterdam, (1976), p 46. 
469 Akkas, Sarkar Ali (2004) "Appointment of Judges: A Key Issue of Judicial 
Independence," Bond Law Review: Vol. 16: lss. 2, Article 8. Available at: http:/ 
H 
/epublications.bond.edu.au/blr/vol 16/iss2/8
SUPREME COURT ADVOCATES-ON-RECORD 
929 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
worldwide reaction to the executive taking over and appointing A 
judges. No system following the Rule of Law would like to retain 
a system of appointment of judges where the executive plays 
a major role or has the last word on the subject, hence the 
occasional clamour for a judicial appointments commission. 
As the Hamlyn lecture of Jack Straw illustrates, the executive 
B 
desires greater control in the appointment of judges but the 
judiciary eventually has the upper hand, as it should - but not 
so with the NJAC. 
544. The decision of this Court in Kumar Pad ma Prasad c 
v. Union of lndia490 is an example of how wrong the executive 
can be in the matter of appointment of judges. In that case, a 
judicial officer was recommended for appointment as a judge 
of the Gauhati High Court at the instance of the Chief Minister 
of Mizoram. The recommendation was agreed to by the Chief D 
Justice of India and the warrant of appointment of the 
recommended person was issued by the President but it was 
subsequently not given effect to since the person was found 
not qualified to be appointed as a judge of the High Court. 
Recently, the Canadian Supreme Court answered a reference E 
made by the Governor General in Council as a result of which 
the appointment and swearing in of a judge of the Supreme 
Court was declared void ab initio since he did not possess 
the eligibility requirement.491
Instances of this nature, fortunately 
few and far between have shaken public confidence in a system F 
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 G 
NJAC system downgrading the President and the Chief Justice 
of India and incorporating a host of other features that severely 
490 (1992) 2 sec 428 
491 Reference Re Supreme Court Act, sections 5 and 6, [2014] 1 SCR 433 
H
930 
SUPREME COURT REPORTS 
[2015] 13 S.C.R 
A 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 
8 
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 ggth Constitution 
Amendment Act has achieved. The learned Attorney-General 
referred to the NJAC as the third chapter in the appointment 
c of judges - the first chapter being one in which the executive 
had the 'ultimate power' in the appointment process and the 
second chapter being one in which the Executive and the 
Judiciary have a shared responsibility with the judiciary having 
institutional participation. This may be so, but through the ggth 
o Constitution Amendment Act the NJAC takes away the 
responsibility not only of the executive but also the shared 
responsibility of the judiciary and the executive, completely 
decapitating the appointment system given to us by the 
Constituent Assembly -
a system that ensures the 
E independence of the judiciary. 
546. Working within the parameters suggested by the 
learned Attorney-General, namely, the presumption of 
constitutionality of the 991h Constitution Amendment Act, that 
F the basis of the judgment in the Second Judges case has 
been removed, the wisdom of Parliament and the needs of 
the people cannot
be questioned and that this Court must 
recognize that society and its requirements have changed with 
the passage of time, it is not possible to uphold the 
G constitutional validity of the ggth Constitution Amendment Act. 
The recipe drastically alters the process of appointment of 
judges of the Supreme Court and the High Courts by taking 
away its essential ingredients leading to a constitutional 
challenge that must be accepted. 547. Taking an overall and 
H composite view of the ggth Constitution Amendment Act and
SUPREME COURT ADVOCATES-ON-RECORD 
931 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the NJAC Act, rather than a piecemeal discussion or a 
A 
dissection of each provision, there can be little doubt thatArticle 
124A of the Constitution (as amended) is unconstitutional. 
Article 124A of the Constitution having been declared 
unconstitutional, there is nothing of substance left in Article 
1248 and Article 124C of the Constitution and the other B 
provisions of the 991h ConstitutionAmendmentAct, which are 
not severable and therefore these provisions must be and are 
declared unconstitutional being in violation of and altering the 
basic structure of the Constitution. 
548. The sum and substance of this discussion is that 
the process of initiating a recommendation for the appointment 
c 
of a judge, generally accepted since Independence, has been 
radically changed, with well entrenched constitutional 
conventions being given short shrift; the Chief Justice of the D 
High Court has been reduced to the role of a nominating officer, 
whose opinion is taken only for nomination purposes but not 
taken as a consultant in so vital a matter as the appointment of 
a judge; the constitutional importance given to the Chief Justice 
of a High Court has been completely whittled down virtually to E 
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 F 
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 G 
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 H
932 
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[2015] 13 S.C.R. 
A 
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 
B 
upon the Consolidated Fund of India. The 'independence' of 
these officers is maintained while that of the Secretary to the 
Government of India in the Department of Justice is not. 
Moreover, the Secretary holds a transferable position and can 
be changed at the whims and fancies of the executive, 
C depriving the NJAC of continuity and, in a sense, leaving it 
high and dry whenever it pleases the executive. This is clearly 
objectionable. However, to be fair to the learned Attorney-
General, it was submitted that if necessary a Registrar in the 
D Supreme Court may be appointed as the convenor, but with 
respect that is not at all an answer to the issue raised. 
Transparency 
551. In the context of confidentiality r~uirements, the 
submission of the learned Attorney-General was that the 
E functioning of the NJAC would be completely transparent. 
Justifying the need for transparency it was submitted that so 
far the process of appointment of judges in the collegium 
system has been extremely secret in the sense that no one 
F outside the collegium or the Department of Justice is aware of 
the recommendations made by
the Chief Justice of India for 
appointment of a judge of the Supreme Court or the High 
Courts. Reference was made to Renu v. District Judge492 to 
contend that in the matter of appointment in all judicial 
G institutions 'complete darkness in the light house has to be 
removed.'493 
552. In addition to the issue of transparency a submission 
was made that in the matter of appointment of judges, civil 
4" (2014) 14 sec 50 
H 
493 Paragraph 4
SUPREME COURT ADVOCATES-ON-RECORD 
933 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
society has the right to know who is being considered for A 
appointment. In this regard, it was held in Indian Express 
Newspapers v. Union of lndia494 that the people have a right 
to know. Reliance was placed on Attorney General v. Times 
Newspapers Ltd. 495 where the right to know was recognized 
as a fundamental principle of the freedom of expression and 
B 
the freedom of discussion. 
553. In State of U.P. v. Raj Narain496 the right to know 
was recognized as having been derived from the concept of 
freedom of speech. 
c 
554. Finally, in Reliance Petrochemicals Ltd. v. 
Proprietors of Indian Express Newspapers Bombay (P) 
Ltd. 497 it was held that the right to know is a basic right which 
citizens of a free country aspire in the broader horizon of the 
right to live in this age in our land under Article 21 of our D 
Constitution. 
555. The balance between transparency and 
confidentiality is very delicate and if some sensitive information 
about a particular person is made public, it can have a far E 
reaching impact on his/her reputation and dignity. The 991h 
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 
F 
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 G 
the Supreme Court. The right to know is not a fundamental 
4' 4 (1985) 1 sec 641 
495 1973 3 All ER 54 
.,. (1975) 4 sec 428 
497 (1988) 4 sec 592 
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SUPREME COURT REPORTS 
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A 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 ggth 
Constitution Amendment Act and the NJAGAct do not even 
B attempt to consider, let alone achieve that balance. 
556. It is possible to argue that information voluntarily 
supplied by a person who is recommended for appointment 
as a judge might not have a right to privacy, but at the same 
c time, since the information is supplied i.n confidence, it is 
possible to argue that it ought not to be disclosed to third party 
unconcerned persons. Also, if the recommendation is not 
accepted by the President, does the recommended person 
have a right to non-disclosure of the adverse information 
o supplied by the President? These are difficult questions to 
which adequate thought has not been given and merely on the 
basis of a right to know, the reputation of a person cannot be 
whitewashed in a dhobi-ghat. 
E 
Doctrine of Revival 
557. The learned Solicitor-General submitted that when 
a law is amended and the amendment is declared 
unconstitutional, the pre-amendment law does not revive. 
Therefore, even if the ggth Constitution Amendment Act is 
F declared as altering the basic structure of the Constitution, 
Article 124(2) of the Constitution as it existed prior to the ggth 
Constitution
Amendment Act will not automatically revive and 
the collegium system will not resurface.~ 
G 
558. An interesting discussion is to be found in this regard 
in West U.P. Sugar Mills Assn. v. State of U.P. 498 This Court 
referred to B.N. Tewari v. Union of /ndia499 and Firm A. T.B. 
Mehtab Majid & Co. v. State of Madras500 in both of which it 
49• (2002) 2 sec 645 
. 499 AIR 1965 SC 1430 (Five Judges Bench) 
H 
500 AIR 1963 SC 928 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
935 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
was held that if a statutory rule substitutes a rule and the new A 
rule is struck down or declared invalid, the substituted or old 
rule does not revive since it ceased to exist on its substitution. 
The same rationale was applied to a notification in Indian 
Express Newspapers (Born) (P) Ltd. v. Union of India. 501 
559. However, it was further held that if a subsequent 
law is held to be void such as in a case where the Legislature 
had no competence to enact the law, then the earlier or the old 
law would revive. It was held: 
B 
"It would have been a different case where a subsequent C 
law which modified the earlier law was held to be void. In 
such a case, the earlier law shall be deemed to have 
never been modified or repealed and, therefore, 
continued to be in force. Where it is found that the 
legislature lacked competence to enact a law, still D 
amends the existing law and subsequently it is found that 
the legislature or the authority was denuded cif the power 
to amend the existing law, in such a case the old law 
would revive and continue."502 
560. In State of T.N. v. K. Shyam Sunder5°3 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 
E 
is effectively obliterated from the statute books and even if the 
amending [repealing] statute is declared unconstitutional on 
F 
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 
'" (1985) 1 sec 641 
502 Paragraph 15 
5• 3 (2011) a sec 737 
G 
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936 
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[2015] 13 S.C.R. 
A 
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 
B 
provisions stand obliterated/abrogated/wiped out 
wholly i.e. pro tantO repeal. ... " 
c 
D 
E 
F 
. Thus, undoubtedly, submission made by the learned 
Senior Counsel on behalf of the respondents that once 
the Act stands repealed and the amending Act is struck 
down by the Court being invalid and ultra vires/ 
unconstitutional on the ground of legislative 
incompetence, the repealed Act will automatically revive 
is preponderous [preposterous] and needs no further 
consideration. This very Bench in State of U.P. v. Hirendra 
Pal Singh, after placinQ reliance upon a large number of 
earlier judgments particularly in Ameer-un-Nissa Begum 
v. Mahboob Begum, B.N. Tewariv. Union oflndia, India 
Tobacco Co. Ltd. v. CTO, Indian Express Newspapers 
(Bombay) (P) Ltd. v. Union of India, West UP. Sugar 
Mills Assn. v. State of U.P., Zile Singh v. State of Haryana, 
State of Kera/a v. Peoples Union for Civil Liberties and 
Firm A. T.B. Mehtab Majid and Co. reached the same 
conclusion." (Internal citations omitted) 
On the other hand, it is pointed out in paragraph 57 of 
the Report that if a statute is repealed and the new statute is 
declared unconstitutional on the
ground that it violates the 
fundamental rights chapter, then the repealed statute revives. 
G It was said: 
H 
"There is another limb of this legal proposition, that is, 
where the Act is struck down by the Court being invalid, 
on the ground of arbitrariness in view of the provisions of 
Article 14 of the Constitution or being violative of
SUPREME COURT ADVOCATES-ON-RECORD 
937 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
fundamental rights enshrined in Part Ill of the Constitution, A 
such Act can be described as void ab initio meaning 
thereby unconstitutional, stillborn or having no existence 
at all. In such a situation, the Act which stood repealed, 
stands revived automatically. (See Behram Khurshid 
Pesikaka and Mahendra Lal Jaini.)" (Internal citations B 
omitted) 
There does appear to be a doubt (if not a subtle conflict 
of views) that needs to be resolved in the sense that if a statute 
is repealed and obliterated from the statute books, under what c 
circumstances does the obliteration vanish, if at all. However, 
none of these decisions make any reference to an amendment 
of the Constitution, and for the present it is not necessary to 
dive into that controversy. This is for the simple reason that the 
issue requires considerable debate, of which we did not have D 
the benefit. Justice Khehar has elaborately dealt wit~ this issue 
in his draft judgment but I would like to leave the question open 
for debate on an appropriate occasion. 561. 
But, quite 
apart from this, if the contention of the learned Solicitor-General 
is accepted, then on the facts of this case; the result would be 
E 
calamitous. The simple reason is that if the ggth 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 991h Constitution Amendment Act) and 
F 
minus the words struck down (those inserted by the ggth 
Constitution AmendmentAct) would read as follows: 
Article 
Article 124(2) Article 124(2) after the 
124(2) 
after the gglh ggth 
Constitution 
G 
as it was Constitution 
Amendment 
is 
struck 
originally 
Amendment 
down and the original 
Act 
Article 
124(2) 
is 
not 
revived 
H
938 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
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(2) Every Judge 
(2) Every 
(2) Every Judge 
of the Supreme 
Judge of the 
of the Supreme 
Court shall be 
Supreme Court 
Court shall be 
appointed by the 
shall be 
appointed by the 
President by 
appointed by 
President by 
warrant under his the President 
warrant under 
hand and seal 
by warrant 
his hand and 
after consultation ·under his hand 
seal and shall 
with such of the 
and seal on the 
hold office until 
Judges of the 
recommendatio he attains the 
Supreme Court 
n of the 
age of sixty-five 
and of the High 
National 
years: 
Courts in the 
Judicial 
States as the 
Appointments 
President may 
Commission 
deem necessary 
referred to in 
for the purpose 
article 124A 
and shall hold 
and shall hold 
office until he 
office until he 
attains the age of 
attains the age 
· sixty-five years: 
of sixty-five 
years: 
562. This would give absolute power to the President to 
appoint a judge to the Supreme Court without consulting the 
F Chief Justice of India (and also to appoint a judge to a High 
Court). The result of accepting his submission would be to 
create a tyrant, as James Madison put it in the Federalist 
Papers No. 47: 
G 
H 
"The accumulation of all powers, legislative, executive, 
and judiciary, in the same hands, whether of one, a few, 
or many, and whether hereditary, self-appointed, or 
elective, may justly be pronounced the very definition of 
tyranny."
SUPREME COURT ADVOCATES-ON-RECORD 
939 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
563. This was put to the learned Solicitor-General and it A 
was also put to him that if his submissions are correct, then it 
would be better for the Union of India to have the 99 1.h 
Constitution Amendment Act struck down so that absolute 
power resides in the President making him/her an /mperium 
in lmperio as far as the appointment of judges is concerned. 
B 
The learned Solicitor-General smiled but obviously had no 
answer to give. It must, therefore, be held that the constitutional 
provisions amended by the 991h Constitution Amendment Act 
spring back to life on the declaration that the 991h Constitution 
AmendmentAct is unconstitutional. 
C 
Conclusions 
564. Very briefly, Dr. Ambedkar was of the view that the 
President should have some discretion but not unfettered 
discretion in the appointment of judges. The Second Judges D 
case acknowledged that the President has the discretion to 
turn down a recommendation made by the Chief Justice of 
India, but only under certain circumstances. This was the fetter 
on the discretion of the President. However, the 99 1h 
Constitution Amendment Act and the NJAC Act have 
E 
completely taken away the discretion of the President to turn 
down a recommendation for the appointment of a judge, 
reducing the constitutional significance of the President. 
565. Dr. Ambedkar was of the view that the President 
F 
should have the discretion to consult
judges of the Supreme 
Court 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 G 
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 991h Constitution Amendment 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 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 
B 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 
C mandatory for the Chief Justice of India to take the opinion of 
other judges and also left it open to the Chief Justice of India 
to consult persons other than judges in this regard. The opinion 
of the Chief Justice of India ceased to be an individual opinion 
(as per the 'desire' of Dr. Ambedkar) but became a collective 
D or institutional opinion, there being a great deal of difference 
between the two. However, the ggth Constitution Amendment 
Act and the NJAC Act have considerably limited and curtailed 
the authority of the Chief Justice of India (both individually as 
well as institutionally) and the Chief Justice of India is now 
E precluded from taking the opinion of other judges or of any 
person outside the NJAC. The Chief Justice of India has been 
reduced to an individual figure from an institutional head. 
567. Dr. Ambedkar was not prepared to accept the 
F 
opinion of the Chief Justice of India (as an individual) as the
final word in the appointment of judges. This is because the 
Chief Justice of India has frailties like all of us. The 
apprehension of Dr. Ambedkar was allayed by the Second 
Judges case and the Third Judges case which made it 
G mandatory for the Chief Justice of India to express a collective 
opinion and not an individual opinion. The collective and 
unanimous opinion (duly reiterated if necessary) would bind 
the President being the collective and unanimous opinion of 
persons who were ex hypothesi 'well qualified to give proper 
H
SUPREME COURT ADVOCATES-ON-RECORD 
941 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
advice in matters of this sort.' However, the 99th Constitution A 
Amendment Act and the NJACAct reversed the process well 
thought out in the Second Judges case and the Third Judges 
case and have taken away the constitutional authority of the 
Chief Justice of India and placed it on a platter for the NJAC to 
exploit. 
B 
568. Given our constitutional history, the established 
conventions, the views of various committees over the last 
seventy years and the views of scores of legal luminaries 
beginning with Mr. Motilal Setalvad, the throes through which c 
the judiciary has gone through over several decades and the 
provisions of our Constitution, I hold that the Article 124A as 
introduced in the Constitution by the Constitution (Ninety-ninth 
Amendment) Act, 2014 impinges on the independence of the 
judiciary and in the matter of appointment of judges (which is D 
a foundational and integral part of the independence of the 
judiciary) and alters the basic structure of the Constitution. It is 
accordingly declared unconstitutional. The other provisions of 
the Constitution (Ninety-ninth Amendment) Act, 2014 cannot 
stand by themselves and are therefore also declared 
E 
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 
F 
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 G 
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 
H
942 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 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 
B matter for steps to be taken in the future to streamline the 
process and procedure of appointment of judges, to make it 
more responsive to the needs of the people, to make it more 
transparent and in tune with societal needs, and more 
particularly, to avoid a fifth judges case! I would, therefore, 
C allow the petitions but list them for a 'consequence hearing' on 
an appropriate date. 
ORDER 
KURIAN, J. 1. I wholly agree with the view taken by my 
D esteemed brother, Chelameswar, J. that there is no situation 
warranting recusal of Justice Khehar in this case. Now, that 
we have to pass a detailed and reasoned order as to why a 
Judge need not recuse from a case, I feel it appropriate also 
to deal with the other side of the coin, whether a Judge should 
E state reasons for his recusal in a particular case. 
F 
2. One of the reasons for recusal of a Judge is that 
litigants/the public might entertain a reasonable apprehension 
about his impartiality. As Lord Chief Justice Hewart said: 
"It is not merely of some importance but is of fundamental 
importance that justice should not only be done, but 
should manifestly and
undoubtedly be seen to be done."1 
And therefore, in order to uphold the credibility of the 
G integrity institution, the Judge recuses from hearing the case. 
3. A Judge of the Supreme Court or the High Court, while 
assuming Office, takes an oath as prescribed under Schedule 
Ill to the Constitution of India, that: 
1 R v. Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256, (1923] All ER Rep. 
H 
233
SUPREME COURT ADVOCATES-ON-RECORD 
943 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
" ... I will bear true faith and allegiance to the Constitution A 
of India as by law established, that I will uphold the 
sovereignty and integrity of India, that I will duly and 
faithfully and to the best of my ability, knowledge and 
judgment perform the duties of my office without fear or 
favour, affection or ill-will and that I will uphold the 
B 
Constitution and the laws." 
4. Called upon to discharge the duties of the Office 
without fear or favour, affection or ill-will, it is only desirable, if 
not proper, that a Judge, for any unavoidable reason like some c 
pecuniary interest, affinity or adversity with the parties in the 
case, direct or indirect interest in the outcome of the litigation, 
. family directly involved in litigation on the same issue 
elsewhere, the Judge being aware that he or someone in his 
immediate family has an interest, financial or otherwise that D 
could have a substantial bearing as a consequence of the 
decision in the litigation, etc., to recuse himself from the 
adjudication of a particular matter. No doubt, these examples 
are not exhaustive. 
5. Guidelines on the ethical conduct of the Judges were 
E 
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 
F 
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: 
G 
"Principle: 
Impartiality is essential to the proper discharge of the 
judicial office. It applies not only to the decision itself but 
H
944 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
also to the process by which the decision is made. 
Application: 
2.1 A judge shall perform his or her judicial duties without 
fc;ivour, bias or prejudice. 
2.2 A judge shall ensure that his or her conduct, both in 
and out of court, maintains and enhances the 
confidence of the public, the legal profession and 
litigants in the impartiality of the judge and of the 
judiciary. 
2.3 A judge shall, so far as is reasonable, so conduct 
himself or herself as to minimise the occasions on 
which it will be necessary for the judge to be . 
disqualified from hearing or deciding cases. 
2.4 A judge shall not knowingly, while a proceeding is 
before, or could come before, the judge, make any 
comment that might reasonably be expected to affect 
the outcome of such proceeding or impair the manifest 
fairness of the process. Nor shall the judge make any 
comment in public or otherwise that might affect ttie 
fair trial of any person or issue. 
2.5 A judge shall disqualify himself or herself from 
participating in any proceedings in which the judge is 
unable to decide the matter impartially or in which it 
may appear to a reasonable observer that the judge 
is unable to decide the matter impartially. Such 
proceedings include, but are not limited to, instances 
where 
2.5.1 the judge has actual bias or prejudice concerning 
a party or personal knowledge of disputed 
evidentiary facts concerning the proceedings;
·SUPREME COURT ADVOCATES-ON-RECORD 
945 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
2.5.2 the judge previously served as a lawyer or was A 
a material witness in the matter in controversy; or 
2.5.3 the judge, or a member of the judge's family, 
has an economic interest in the outcome of the 
matter in controversy: 
Provided that disqualification of a judge shall not be 
required if no other tribunal can be constituted to deal 
with the case or, because of urgent circumstances, failure 
to act could lead to a serious miscarriage of justice." 
B 
6. The simple question is, whether the adjudication by C 
the Judge concerned, would cause a reasonable doubt in the 
mind of a reasonably informed litigant and fair-minded public 
as to his impartiality. Being an institution whose hallmark is 
transparency, it is only proper that the Judge discharging high D 
and noble duties, at least broadly indicate the reasons for 
recusing from the case so that the litigants or the well-meaning 
public may not entertain any misunderstanding that the recusal 
was for altogether irrelevant reasons like the cases being very 
old, involving detailed consideration, decision on several 
E 
questions of law, a situation where the Judge is not happy with 
the roster, a Judge getting unduly sensitive about the public 
perception of his image, Judge wanting not to cause 
displeasure to anybody, Judge always wanting not to decide 
any sensitive or controversial issues, etc. Once reasons for 
F 
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, G 
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. 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
7. In Public Utilities Commission of District of 
Columbia et al. v. Pollak et al.2, 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 
B 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 
C this issue. Therefore, stating so, he recused from participating 
D 
E 
F 
G 
in the case. To quote his words, 
"The judicial process demands that a judge move within 
the framework of relevant legal rules and the covenanted 
modes of thought for ascertaining them. He must think 
dispassionately and submerge private feeling on every 
aspect of a case. There is a good deal of shallow talk 
that the judicial robe does not change the man within it. 
It does. The fact is that on the whole judges do lay aside 
private views in discharging their judkial functions. This 
is achieved through training, professional habits, self-
discipline and that fortunate alchemy by which men are 
loyal to the obligation with which they are entrusted. But 
it is also true that reason cannot control the subconscious 
influence of feelings of which it is
unaware. When there 
is ground for believing that such unconscious feelings 
may operate in the ultimate judgment, or may not unfairly 
lead others to believe they are operating, judges recuse 
themselves. They do not sit in judgment. They do this 
for a variety of reasons. The guiding consideration is 
that the administration of justice should reasonably 
appear to be disinterested as well as be so in fact. 
H 
2 343 U.S. 451 (1952)
SUPREME COURT ADVOCATES-ON-RECORD 
947 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
This case for me presents such a situation. My feelings A 
are so strongly engaged as a victim of the practice in 
controversy that I had better not participate in judicial 
judgment upon it. I am explicit as to the reason for my 
non-participation in this case because I have for some 
time been of the view that it is desirable to state why one B 
takes himself out of a case." 
8. According to Justice Mathew in S. Parthasarathi v. 
State of A.P. 3, in case, the right-minded persons entertain a 
feeling that there is any likelihood of bias on the part of the c 
Judge, he must recuse. Mere possibility of such a feeling is 
not enough. There must exist circumstances where a 
reasonable and fair-minded man would think it probably or 
likely that the Judge would be prejudiced against a litigant. To 
quote: 
D 
"The tests of "real likelihood" and "reasonable suspicion" 
are really inconsistent with each other. We think that the 
reviewing ·authority must make a determination on the . 
basis of the whole evidence before it, whether a 
reasonable man would in the circumstances infer that E 
there is real likelihood of bias. The Court must look at 
the impression which other people have. This follows 
from the principle that Justice must not only be done but 
seen to be done. If right minded persons would think F 
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 
G 
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 
'(1974) 3 sec 459 
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948 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
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 Others, etc. [(1968) 3 WLR 694 at 707]). 
B 
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." 
c 
9. There may be situations where the mischievous 
litigants wanting to avoid a Judge may be because he is known 
to them to be very strong and thus making an attempt for forum 
shopping by raising baseless submissions on conflict of 
interest. In the Constitutional Court of South Africa in The 
o President of the Republic of South Africa etc. v. South 
African Rugby Football Union etc.4 , has made two very 
relevant observations in this regard: 
E 
F 
G 
"Although it is important that justice must be seen to be 
done, it is equally important that judicial officers discharge 
their duty to sit and do not, by acceding too readily to 
suggestions of appearance of bias, encourage parties 
to believe that by seeking the disqualification of a judge, 
they will have their case tried by someone thought to be 
more likely to decide the case in their favour." 
"It needs to be said loudly and clearly that the ground of 
disqualification is a reasonable apprehension that the
judicial officer will not decide the case impartially or 
without prejudice, rather than that he will decide the case 
adversely to one party." 
10. Ultimately, the question is whether a fair-minded and 
reasonably informed person, on correct facts, would 
reasonably entertain a doubt on the impartiality of the Judge. 
H 
4 1999 (4) SA 147.
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [KURIAN, J.] 
The reasonableness of the apprehension must be assessed 
A 
in the light of the oath of Office he has taken as a Judge to 
administer justice without fear or favour, affection or ill-will and 
his ability to carry out the oath by reason of his training and 
experience whereby he is in a position to disabuse his mind 
of any irrelevant personal belief or pre-disposition or B 
unwarranted apprehensions of his image in public or difficulty 
in deciding a controversial issue particularly when the same is 
highly sensitive. 
11. These issues have been succinctly discussed by the c 
Constitutional Court in The President of the Republic of 
South Africa (supra), on an application for recusal of four of 
the Judges in the Constitutional Court. After elaborately 
considering the factual matrix as well as the legal position, the 
Court held as follows:-
D 
"While litigants have the right to apply for the recusal of 
judicial officers where there is a reasonable 
apprehension that they will not decide a case impartially, 
this does not give them the right to object to their cases 
being heard by particular judicial officers simply because E 
they believe that such persons will be less likely to decide 
the case in their favour, than would other judicial officers 
drawn from a different segment of society. The nature of 
the judicial function involves the performance of difficult F 
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. 
G 
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) 
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12. 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 
B 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 
C 
prejudicially any case or cause or interest of someone else, 
the Judge is free to state that on account of personal reasons 
which the Judge does not want to disclose, he has decided to 
recuse himself from hearing the case. 
D 
JUDGMENT 
KURIAN, J. 1. Entia Non Sunt Multiplicanda Sine 
Necessitate (Things should not be multiplied without 
necessity). This is the first thought which came to my mind 
after reading the judgments authored by my noble brothers 
E Khehar, Chelameswar, Lokur and Goel, JJ., exhaustively 
dealing with the subject. The entire gamut of the issue has 
been dealt with from all possible angles after referring 
extensively to the precedents, academic discourses and 
judgments of various other countries. Though I cannot, in all 
F humility, claim to match the level of such masterpieces, it is a
fact that I too had drafted my judgment. However, in view of the 
principle enunciated above on unnecessary multiplication, I 
decided to undo major portion of what I have done, also for the 
reason that the judgment of this Bench should not be accused 
G of Bharati fate (His Holiness Kesavananda Bharati 
Srjpadagalvaru v. State of Kerala and another1 has always 
been criticized on that account). 
1 (1973) 4 sec 225 
H
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ASSOCIATION v. U.0.1. [KURIAN, J.] 
2. Leaving all legal jargons and using a language of the A 
common man, the core issue before us is the validity of the 
Constitution 99th amendment. It is to be tested on the 
touchstone of the theory of the basic structure. The amendment 
has introduced a new constitutional scheme for appointment 
of Judges to the High Courts and the Supreme Court. During B 
the first phase of the working of the Constitution, the Executive 
claimed an upper hand in the appointment and the Chief Justice 
of India or the Chief Justices of the High Courts concerned 
were only to be 'consulted', the expression often understood 
in its literal sense. In other words, the decision was taken by C 
the Executive with the participation of the Chief Justice. This 
process fell for scrutiny in one of the celebrated decisions of 
this Court in Samsher Singh v. State of Punjab and 
another2. 
3. In Samsher Singh case (supra), a seven-Judge 
Bench of this Court, in unmistakable terms, held at paragraph 
149 as follows: 
D 
"149 . ... The independence of the Judiciary, which is a 
cardinal principle of the Constitution and has been relied 
E 
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 
F 
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 G 
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. 
2 (1974) 2 sec 831 
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A 
In this view it is immaterial whether the President or the 
Prime Minister or the Minister for Justice formally decides 
the issue." 
(Emphasis supplied) 
B 
4. 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 
C case and author of the majority vie·w, was a member who 
concurred with the majority in Samsher Singh case (supra) 
and yet there was not even a reference to that judgment in the 
lead judgment! Had there been a proper advertence to 
Sams her Singh case (supra), probably there would not have 
D been any need for the Second Judges Case. 
5. It appears, the restlessness on the incorrect 
interpretation of the constitutional structure and position of 
judiciary in the matter of appointments with the super voice of 
E the Executive, as endorsed in the First Judges Case, called 
for a serious revisit leading to the Second Judges Case. 
Paragraph 85 of the Judgment gives adequate reference to 
the background. To quote: 
F 
G 
H 
"85. Regrettably. there are some intractable problems 
concerned with judicial administration starting from the 
initial stage of selection of candidates to man the 
Supreme Court and the High Courts leading to the 
present malaise. Therefore, it has
become inevitable that 
effective steps have to be taken to improve or retrieve 
the situation. After taking note of these problems and 
realising the devastating consequences that may flow, 
· one cannot be a silent spectator or an old inveterate 
optimist, looking upon the other constitutional 
functionaries, particularly the executive, in the fond hope
SUPREME COURT ADVOCATES-ON-RECORD 
953 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
of getting invigorative solutions to make the justice A 
delivery system more effective and resilient to meet the 
contemporary needs of the society, which hopes, as 
experience shows, have never been successful. 
Therefore, faced with such a piquant situation, it has 
become imperative for us to solve these problems within 
B 
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." 
(Emphasis supplied) 
6. The nine-Judges Bench in the Second Judges Case 
overruled the First Judges Case, after a threadbare analysis 
c 
of the relevant provisions 'in the light of the letter and spirit of 
the Constitution', holding that appointment of Judges to the 
D 
High Courts and the Supreme Court forms an integral part of 
the independence of judiciary, that independence of judiciary 
is part of the basic structure of the Constitution of India, and 
therefore, the Executive cannot interfere with the primacy of 
the judiciary in.the matter of appointments. Third Judges Case, 
E 
in 1998, is only an explanatory extension of the working of the 
principles in the Second Judges Case by institutionalizing the 
procedure of appointment, introducing the Collegium. 
7. Thus, the structural supremacy of the judiciary in the 
F 
constitutionally allotted sphere was restored by the Second
and Third Judges Cases. 
8. 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 G 
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 
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A 
Constitution 991h 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 991h Amendment. The validity of the Act is also 
B 
under challenge. 
9. '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 
c included an unusual two weeks long sitting during the summer 
vacations with the hearing in three different Courts, viz., Court 
Nos. 3, 4 and 6. When it is held, and rightly so, that there is no 
requirement for reconsideration of the Second Judges Case, 
the fate of the case is sealed; there is no need for any further 
o deal, big or small. Though I generally agree with the analysis 
and statement of law, in the matter of discussion and 
summarization of the principles on reconsideration of 
judgments made by Lokur, J. at paragraph 263, I would like to 
add one more, as the tenth. Once this Court has addressed 
E an issue on a substantial question of law as to t~e structure of 
the Constitution' and has laid down the law, a request for revisit 
shall not be welcomed unless it is shown that-the structural 
interpretation is palpably erroneous. None before us could blur 
the graphic picture on the scheme of appointment
of Judges 
F 
and its solid structural base in the Constitution portrayed in 
the Second Judges Case. This Bench is bound by the ratio 
that independence of judiciary is part of the basic structure of 
Constitution and that the appointment of Judges to the High 
Courts and the Supreme Court is an integral part of the concept 
G of independence of judiciary. And for that simple reason, the 
Constitution 991h Amendment is bound to be declared 
unconstitutional and I do so. Thus, I wholly agree with the view 
taken by Khehar, Lokur and Goel, JJ., that the amendment is 
H unconstitutional and I respectfully disagree with the view taken ·
SUPREME COURT ADVOCATES-ON-RECORD 
955 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
by Chelameswar, J. in that regard. Since it is being held by the A 
majority that the amendment itself is bad, there is no point in 
dealing with the validity of the creature of the amendment, viz., 
the National Judicial Appointments Commission Act, 2014. It 
does not exist under law. Why then write the horoscope of a . 
stillborn child! 
B 
10. However, I would like to provide one more prod. 
Professor Philip Bobbit in his famous book 'Constitutional Fate 
Theory_ of the Constitution', has dealt with a typology of 
constitutional arguments. To him, there are five archetypes: c 
historical, textual, structural, prudential and doctrinal. To quote 
from Chapter 1: 
"Historical argument is argument that marshals the 
intent of the draftsmen of the Constitution and the people 
who adopted the Constitution. Such arguments begin with 
D 
assertions about the controversies, the attitudes, and 
decisions of the period during which the particular 
constitutional provision to be construed was proposed 
and ratified. 
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 
E 
is confused with historical argument, which requires the 
consideration of evidence extrinsic to the text. The third 
F 
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 
G 
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), 
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B 
c 
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[2015] 13 S.C.R. 
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." 
11. Professor (Dr.) Upendra Baxi has yet anothertool-
'episodic', which according to him, is often wrongly used in 
interpreting the Constitution. To Dr. Baxi, 'structural' is the most 
important argument while interpreting the Constitution". 
12. Structural argument is further explained in Chapter 
6. To quote a few observations: 
"Structural arguments are inferences from the existence 
of constitutional structures and the relationships which 
the Constitution ordains among these structures. They 
are to be distinguished from textual and historical 
arguments, which construe a particular constitutional 
passage and then use that construction in the reasoning 
of an opinion." 
xxx. 
xxx 
xxx 
"Structural arguments are largely tactless and depend 
on deceptively simple logical moves from the entire 
Constitutional text rather than from one of its parts. At the 
F 
same time, they embody a macroscopic prudentialism 
drawing not on the peculiar facts of the case but rather 
arising from general assertions about power and social 
choice." 
G 
H 
xxx 
xxx 
xxx 
"Notice that the structural approach, unlike much 
doctrinalism, is grounded in the actual text
of the 
Constitution. But, unlike textualist arguments, the 
passages that are significant are not those of express
SUPREME COURT ADVOCATES-ON-RECORD 
957 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
grants of power or particular prohibitions but instead A 
those which, by setting up structures of a certain kind, 
permit us to draw the requirements of the relationships 
among structures." 
13. Professor Bobbit has also dealt with a sixth approach 
8 
-
ethical, which according to him, is seldom used in 
constitutional law. In interpreting the Constitution, all the tools 
are to be appropriately used, and quite often, in combination 
too. The three constitutional wings, their powers and functions 
under the Constitution, and their intra relationship being the c 
key issues to be analysed in the present case, I am of the view 
that the 'structural tool' is to be prominently applied for resolving 
the issues arising in the case. In support, I shall refer to a recent 
judgment of the U.S. Supreme Court in State v. Arizona 
Independent Redistricting Commission 3, decided on D 
29.06.2015. It is an interesting case, quite relevant to our 
discussion. U.S. Constitution Article I, Section 4 ,Clause 1 
(Election Clause) reads as follows: 
"The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in 
E 
each State by the Legislature thereof; but the Congress 
may at any time by Law make or alter such Regulations, 
except as to the Places of chusing Senators." 
14. Arizona Constitution, Article IV, Part 1 , to the extent 
F 
relevant, reads as follows:
"Section 1. (1) Senate; house of representatives; 
reseNation of power to people. The legislative authority 
of the state shall be vested in the legislature, consisting G 
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 
3 Manu/USSC/0060/2015 
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[2015] 13 S.C.R. 
A 
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." 
8 
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 
c omission' by the Legislature while the referendum corrects 'sins 
of commission' by the Legislature. 
15. In 2000, Arizona voters adopted Proposition 106, an 
initiative aimed at the problem of gerrymandering. Proposition 
106 amended Arizona's Constitution, removing redistricting 
D authority from the Arizona Legislature and vesting it in an 
independent commission, the Arizona Independent 
Redistricting Commission (AIRC). After the 2010 census, as 
after the 2000 census, the AIRC adopted redistricting maps 
for congressional as well as state legislative districts. The 
E Arizona Legislature challenged the map which the Commission 
adopted in 2012 for congressional districts arguing that the 
AIRC and its map violated the "Elections Clause" of the U.S. 
Constitution. 
F 
G 
H 
16. Justice Ginsburg and four other Justices formed the 
majority and held that the independent commission is 
competent to provide for redistricting. To
quote the main 
reasoning: 
"The Framers may not have imagined the modern 
initiative process in which the people's legislative powers 
is coextensive with the state legislature's authority, but 
the invention of the initiative was in full harmony with the 
Constitution's conception of the people as the font of 
governmental power."
SUPREME COURT ADVOCATES-ON-RECORD 
959 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
17. However, Chief Justice Roberts and three other A 
Justices dissented. Chief Justice Roberts pointed out that the 
majority position has no basis in the text, structure, or history 
of the Constitution and it contradicts precedents from both 
Congress and the Sup·reme Court. The Constitution contains 
seventeen provisions referring to the 'Legislature' of a State, 
B 
many of which cannot possibly be read to mean 'the people'. 
To quote further: 
"The majority largely ignores this evidence, relying 
instead on disconnected observations about direct c 
democracy, a contorted interpretation of an irrelevant 
statute, and naked appeals to public policy. Nowhere 
does the majority explain how a constitutional provision 
that vests redistricting authority in "the Legislature" 
permits a State to wholly exclude "the Legislature" from D 
redistricting. Arizona's Commission might be a "noble 
endeavor" although it does not seem so "independent" 
in practice but the "fact that a given law or procedure is 
efficient. convenient. and useful ... will not save it if it is 
contrary to the Constitution" INS v. Chadha, 462 U.S. 
E 
919, 944 (1983)." 
xxx 
xxx 
xxx 
"The constitutional text, structure, history, and precedent F 
establish a straightforward rule: Under the Elections 
Clause, "the Legislature" is a representative body that, 
when it prescribes 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 G 
legislature need not be exclusive in congressional 
districting, but neither may it be excluded." 
xxx 
xxx 
xxx 
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[2015] 13S.C.R. 
"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) 
18. While wholly agreeing with the historic, textual, 
prudential and doctrinal approaches made by Khehar and 
D 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. 
19. Separation of powers or say distribution of powers, 
E as brother Lokur, J. terms it, is the tectonic structure of the 
Constitution of India. The various checks and balances are 
provided only for maintaining a proper equilibrium amongst 
the structures and that is the supreme beauty of our Constitution. 
Under our constitutional scheme, one branch does not interfere 
F impermissibly with the constitutionally assigned powers and 
functions of another branch. The permissible areas of 
interference are the checks and balances. But there are certain 
exclusive areas for each,
branch which Khehar, J. has stated 
as 'core functions', and which I would describe as powers 
G central. There shall be no interference on powers central of 
H 
· each branch. What the Constitution is, is only for the court to 
define; whereas what the constitutional aspirations are forthe 
other branches to detail and demonstrate. As held in Sam sher
SUPREME COURT ADVOCATES-ON-RECORD 
961 
ASSOCIATION v. U.0.1. [KURIAN, J.] 
Singh case (supra) and the Second and Third Judges Cases, 
A 
selection of Judges for appointment in High Courts and the 
Supreme Court belongs to the powers central of the Judiciary 
and the permissible checks and balances are provided to other 
branches lie in the sphere of appointment. If the alignment of 
tectonic plates on distribution of powers is disturbed, it will 
B 
quake the Constitution. Once the constitutional structure is 
shaken, democracy collapses. That is our own painful history 
of the Emergency. It is the Parliament, in post-Emergency, 
which corrected the constitutional perversions and restored 
the supremacy of rule of law which is the cornerstone of our C 
Constitution. As guardian of the Constitution, this Court should 
vigilantly protect the pristine purity and integrity of the basic 
structure of the Constitution. Direct participation of the 
Executive or other non-judicial elements would ultimately lead D 
to structured bargaining in appointments, if not, anything worse. 
Any attempt by diluting the basic structure to create a committed 
judiciary, however remote be the possibility, is to be nipped in 
the bud. According to Justice Roberts, court has no power to 
gerrymanderthe Constitution. Contextually, !would say, the 
E 
Parliament has no power to gerrymander the Constitution. The 
Constitution ggth amendment impairs the structural distribution 
of powers, and hence, it
is impermissible. 
20. One word on the consequence. Though elaborate 
arguments have been addressed that even if the constitutional 
F 
amendment is struck. down, the Collegium does not resurrect, 
according to me, does not appeal even to common sense. 
The ggth 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 G 
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 
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A 
parlance and common parlance may be different but there 
cannot be any legal sense of an issue which does not appeal 
to common sense. 
21. All told, all was and is not well. To that extent, I agree 
8 
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 
c beeri raised that its approach has been highly subjective. 
Deserving persons have been ignored wholly for subjective 
reasons, social and other national realities were overlooked, 
certain appointments were purposely delayed so as either to 
benefit vested choices or to deny such benefits to the less 
o patronised, selection of patronised or favoured persons were 
made in blatant violation of the guidelines resulting in 
unmerited, if not, bad appointments, the dictatorial attitude of 
the Collegium seriously affecting the self-respect and dignity, 
if not, independence of Judges, the court, particuiarly the 
E Supreme Court, often being styled as the Court of the 
Collegium, the looking forward syndrome affecting impartial 
assessment, etc., have been some of the other allegations in 
the air for quite some time. These allegations certainly call for 
a deep introspection as to whether the institutional trusteeship 
F has
kept up the expectations of the framers of the Constitution. 
G 
H 
Though one would not like to go into a detailed analysis of the 
reasons, I feel that it is not the trusteeship that failed, but the 
frailties of the trustees and the collaborators whi'ch failed the 
system. To me, it is a ~urable situation yet. 
22. There is no healthy system in practice. No doubt, the 
fault is not wholly of the Collegium. The active silence of the 
Executive in not preventing such unworthy appointments was 
actually one of the major problems. The Second and Third
SUPREME COURT ADVOCATES-ON-RECORD 
963 
"ASSOCIATION v. U.0.1. 
Judges Case had provided effective tools in the hands of the A 
Executive to prevent such aberrations. Whether 'Joint venture', 
as observed by Chelameswar, J., or not, the Executive seldom 
effectively used those tools. 
23. Therefore, the Collegium system needs to be 
8 
improved requiring a 'glasnost' and a 'perestroika', and hence 
the case needs to be heard further in this regard. 
JUDGMENT 
ADARSH KUMAR GOEL, J. Introduction 1. Articles 
124, 127, 128, 217, 222, 224 and 231 of the Constitution of C 
India ('the Constitution') deal with the appointment of the judges 
of the Supreme Court and the High Courts ('the Constitutional 
courts'), and other allied matters. The Constitution (Ninety-Ninth 
Amendment) Act, 2014 ('the Amendment Act') inter alia seeks 
to amend these constitutional provisions. The National Judicial D 
Appointments Commission Act, 2014 ('the NJAC Act'), 
enacted simultaneously, purports to regulate the procedure of 
the National Judicial Appointments Commission (NJAC). The 
present batch of petitions challenge the constitutional validity 
oftheAmendmentAct and the NJACAct.. The Supreme Court E 
Advocates-on-Record Association has filed Writ Petition (Civil) 
No.13 of 2015, which has been treated as the lead petition. 
2.1 have perused the erudite opinions of my esteemed 
brothers. While I respectfully agree with the conclusions arrived 
F 
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 
G 
. 3. The scheme of appointment and transfer of Judges in 
force prior to the amendment is set out in two memoranda 
dated 301h June, 1999 issued by the Government of India -
first for appointment of Chief Justice of India (CJI) and judges H
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[2015] 13 S.C.R. 
A 
of the Supn:~me 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 
8 
be of the senior most judge of the Supreme Court considered 
fit to hold the office. For this purpose, recommendation is 
sought from the outgoing CJI and if there is doubt about the 
fitness of the senior most judge, consultation is made with the 
other judges under Article 124(2). Thereafter, the Law Minister 
c puts up the matter to the Prime Minister (PM) who advises the 
President. After approval of the President, the appointment is 
notified. For appointment as judges of the Supreme Court, 
the CJI initiates the proposal and forwards his 
recommendation to the Union Minister of Law who puts up the 
o matter to the PM, who in turn advises the President. Opinion 
of the CJ 1 is formed in consultation with four senior most judges 
and if successor CJI is not in the said four s.enior most judges, 
he is also made part of the collegium. CJI also ascertains the 
views of the senior most judge in the Supreme Court who hails 
E from the High Court from where a person recommended 
comes. Opinions in respect of the recommendation are in 
writing and are transmitted to the Government of India for 
record. If the views of non-judges are solicited, a memorandum 
thereof and its substance is conveyed to
the Government of 
F 
India. Once appointment is approved by the President of India, 
certificate of physical fitness is obtained and after the warrant 
of appointment is signed by the President, the appointment is 
announced and a notification issued in the Gazette of India. 
G 
3.2 The procedure laid down in the second 
memorandum deals with the appointments to the Hign Courts 
and tran~fers. The Chief Justices of High Courts are appointed 
from outside. Inter se seniority in a particular High Court is 
considered for appointment as Chief Justice from that High 
H
SUPREME COURT ADVOCATES-ON-RECORD 
965 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
. 
Court. Initiation of proposal for appointment of Chief Justice A 
of a High Court is by the CJI. The CJI consults two senior most 
Judges of the Supreme Court and also ascertains the views 
of his senior most colleague in the Supreme Court who is 
conversant with the affairs of the High Court in which the 
recommendee has been functioning and whose opinion is 
B 
likely to be significant in adjudging the suitability of the 
candidate. The views of the Judges are sent along with the 
proposal of the Union Minister of Law who obtains the views 
of the concerned State Government and then submits the 
proposal to the PM who advises the President. As soon as 
C 
appointment is approved by the President, notification is 
issued in the Gazette of India. As regards the appointment of 
a Judge of the High Court, the Chief Justice of the High Court 
communicates to the Chief Minister his views, after consulting D 
two of his senior most colleagues regarding suitability of the 
person to be selected. All consultations must be in writing and 
these opinions are sent to the Chief Minister, along with the 
recommendation. If the Chief Minister desires to recommend 
a name, he has to forward the same to the Chief Justice for E 
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 1.8. 
F 
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 G 
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 
H
966 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
the State Constitutional Authorities, opinion of the CJI must be 
obtained. The Law Minister then puts up the recommendation 
to the PM who advises the President. The correspondence 
between the Chief Justice, the Chief Minister and Governor 
inter seisin writing. As soon as the appointment is approved 
B by the President, physical fitness is ascertained and as soon 
as warrant of appointment is signed by the President, 
notification is issued in the Gazette of India. 
3.3 Proposal for transfer is initiated by the CJI. Consent 
C of the Judge concerned is not necessary. The CJI consults 
four senior most Judges of the Supreme Court and takes into 
account the views of the Chief Justice of the High Court from 
which the Judge is to be transferred and Chief Justice of the 
High Court to which the transfer is to be effected. CJI also 
o takes into account the views of one or more Supreme Court 
Judges who are in a position to offer his/their views. The views 
are expressed in writing, and are considered by the CJI and 
four senior most Judges. The personal facts relating to the 
Judge and his response to the proposal are invariably taken 
E into account. The proposal is then referred to the Government. 
The Law Minister submits the recommendation to the PM who 
advises the President. After the President approves the 
transfer, a notification is issued in the Official Gazette. 
F 
3.4 The above memoranda were issued by the
Government of India in the light of unamended Constitutional 
provisions and the judgment of this Court dated 281h October, 
1998 in Special Reference No.1of1998 1 (Third Judges' 
case) which in substance reiterates the earlier Nine Judge 
G Bench judgment in SCA ORA vs. Union of lndia2 (Second 
Judges' case). 
H 
3.5 Reference may also be made to the unamended 
1 (1998) 7 sec 739 
2 (1993) 4 sec 441
SUPREME COURT ADVOCATES-ON-RECORD 
967 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
constitutional provisions. Article 124 (2) provides that a Judge A 
of the Supreme Court shall be appointed by the President after 
consultation with such Judges of the Supreme Court and the 
High Courts as are deemed necessary. However, the CJI is 
always to be consulted. Article 217 provides that a Judge of 
the High Court shall be appointed by the President after B 
. consultation with CJI, Governor of the State and in case of a 
Judge other than the Chief Justice, the Chief Justice of the 
High Court. The question arose before this Court on several 
occasions as to the value of the opinion of the CJI in the process 
of 'consultation'. This Court held that under the scheme of the C 
Constitution a proposal for appointment to the Supren:ie Court 
must emanate from the CJI and for appointment to the High 
Court it should emanate from the Chief J.ustice of the High 
Court and the last word on appointment must rest with the CJl3. 
D 
This Court noted that by convention proposals for appointments 
were always initiated by the judiciary and appointments were 
made with the concurrence of the CJ I. This view was reiterated 
in Third Judges' case on the basis of which the above 
memoranda were issued by the Government of India. 
E 
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 
F 
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 forthe Supreme Court and other scheme as reflected 
G 
in the memoranda earlier mentioned and as laid down in 
decisions of this Court has been replaced. The amendment 
3 Paras 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J., Para 486, 
Verma, J., Para 505, Punchhi, J. in Second Judges' case 
H
968 
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[2015] 13 S.C.R. 
A 
inserts a new Article 124A, under which the NJAC is to be 
constituted. It will comprise the CJ I, two senior most judges of 
Supreme Court next to the CJI, Union Law Minister and two 
eminent persons to be nominated by the Committee 
comprising of the PM, the CJI and the Leader of the Opposition 
B 
in the House of the People/Leader of single largest Opposition 
Party in the House of the People. The nomination of one of · 
these eminent persons is reserved for persons belonging to 
the Scheduled Castes, the Scheduled Tribes, OBC, minorities 
or women. Under the new scheme, for any proposal five out of 
C six members must concur. If any two members disagree, no 
proposql can be made. 
5. The Amendment Act also provides for the Parliament 
to enact law to regulate the procedure for appointment of 
o judges of higher courts and to empower the Commission to 
lay down, by regulations, the procedure for discharge of its 
functions, the manner of selection of its members and such 
other matters, as may be considered necessary (Section 3). 
6. The NJAC Act provides for the appointment of the 
E senior most judge of the Supreme Court as CJI, if considered 
fit to hold the office; and for recommendation for appointment 
as judge of the Supreme Court (Section 5). The Second 
proviso to Section 5(2) of the NJAC Act states that the 
F Commission shall not recommend a person if two members 
of the Commission do not agree. Apart from its
other functions, 
the Commission would also recommend appointments of Chief 
Justice and judges of High Courts (Section 6(1 ), (3)). 
Alternatively, the Commission can seek a nomination from the 
G Chief Justice of the High Court for recommending appointment 
as judge of the High Court( Section 6(2)). For appointment of 
judges of High Courts, however, the Commission must seek 
prior consultation with the Chief Justice of the concerned High 
Court, who in turn has to consult two senior most judges of the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
969 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
said High Court and such other judges and eminent advocates A 
as may be specified. (Section 6(4 )). The Commission is also 
to seek views of the Governor and Chief Minister of the 
concerned State. The power of appointment of officers and 
employees of the Commission is with the Central Government. 
The Convener of the Commission is the Secretary, Government B 
of India, in the Department of Justice. Central Government is 
authorised to make rules for carrying out the provisions of the 
Act( section 11 ). The Commission is authorised to make 
regulations consistent with the Act and the Rules. The Rules 
and the Regulations framed under the Act are required to be 
C 
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 
D 
"consultation" as "concurrence" in Articles 124(2) and 217 (2) 
·of the Constitution (S.2). It further states that after review of 
the constitutional provisions, pronouncements of this Court and ·' 
consultation with eminent jurists, it was felt that a broad based 
National Judicial Appointments Commission should be 
E 
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 
F 
transparency in the selection process (S.3). 
7.1 Though by notification dated 13th April, 2015, the 
Amendment and the Act have been brought into force, the 
Commission has not been constituted so far, as two eminent G 
persons have not been so far appointed. 
7.2 Key Constitutional unamended provisions and the 
provisions of the Amendment and the Act are as follows:-
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970 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Unamended Provisions 
Article 124 xxxx 
xxxx 
xxxx 
(2) Every Judge of the Suprema 
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: 
Article 217. Appointment and 
conditions of the office of a 
Judge of a High Court - Every 
Judge of a High Court shall be 
appointed by the .President by 
warrant under his hand and 
seal after consultation with 
the Chief Justice of India, the 
Governor of the State, and, in 
the case of appointment of a 
Judge other than the Chief 
Justice, the Chief Justice of 
the High court, and shall hold 
office, 
in 
the 
case of an 
additional or acting Judge, as 
provided in Article 224, and in 
any other case, until he attains 
the age of sixty two years: 
. 
Provisions of the Amend mer 
"124A (1) 
There shall be a 
Commission to be known as 
the 
National 
Judicial 
Appointments 
Commission 
consisting of the follo'Ning, 
namely:-
(a)the Chief Justice of India, 
Chairperson, ex officio; 
(b two other senior Judges of 
the Supreme Court next to 
the Chief Justice of India -
Members, ex officio; 
(c)the 
Union 
Minister 
in 
charge of Law and Justice -
Member, ex officio; 
(d)two eminent persons to be 
nominated by the committee 
consisting 
of 
the 
Prime 
Minister, the Chief Justice of 
India and 
the 
Leader of 
Opposition ·in the House of 
the People or where there is 
no such Leader of Opposition, 
then, the Leader . of single 
largest Opposition Party in 
the House of the People -
Members: 
Provided that one of the 
eminent person 
shall 
be 
nominated from amongst the 
persons belonging 
to 
the 
Scheduled 
Castes, 
the 
Scheduled 
Tribes, 
Other 
Backwatd Classes, Minorities 
or Woman: 
Provided 
further 
that 
an 
eminent person 
shall 
be 
nominated for a period of 
three years and shall not be 
eligible for renorrination.
SUPREME COURT ADVOCATES-ON-RECORD 
971 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
(2) 
f:Jo act or proceedings of 
the . 
National 
Judicial 
Appointments' Commission shall 
be questioned or be invalidated 
merely on the ground of the 
A 
existence of any vacancy or 
B 
defect in the constitution of the 
Commission. 
1248. It shall be the duty of the 
National Judicial Appointments 
Commission t<>-
(a) 
recommend persons for 
appointment as Chief Justice of 
India, Judges of the Supreme 
Court, Chief Justices of High 
Courts and other Judges of High 
Courts; 
(b) 
recommend transfer of 
Chief Justices and other Judges 
of High Courts from one High 
Court to any other High Court; 
and 
(c) 
ensure that the person 
recommended is of ability and 
integrity. 
124C. Parliament may, by law, 
regulate the procedure for the 
appointment of Chief Justice of 
India and other Judges of the 
Supreme 
Court 
and 
Chief 
Justices and other Judges of 
High Courts and empower the 
Commission to lay down by 
regulations the procedure for the 
discharge of its functions, the 
manner of selection of persons 
for appointment and such other 
matters as may be considered 
necessary by it.". 
c 
D 
E 
F 
G 
H 
•
972 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
· 7 .3 The relevant constitutional and statutory provisions 
are set out separately in an Appendix to this opinion. 
Rival Contentions 
8. The Amendment Act is challenged as ultra vires, inter 
B a/ia for being beyond the competence of the Parliament as it 
alters and destroys the basic structure of the Constitution, as 
embodied in the independence of judiciary in the context of 
appointment of judges of the higher judiciary. The petitioners 
submit that the power of the Parliament to amend the 
C Constitution under Article 368 is limited and does not extend. 
to altering or destroying the basic structure or basic features 
of the Constitution. The independence of the judiciary is a 
constitutional concept, regarded as a basic feature of the 
· Constitution, and includes insulating the judiciary from 
D executive or legislative control, primacy of higher judiciary in 
the matter of appointment of judges to the High Courts and the 
Supreme Court, non-amendability of conditions of service of 
judges of the Supreme Court and the High Court to their 
disadvantage. The Amendment takes away the primacy of 
E the collective opinion of the CJI and the senior most Supreme 
Court judges by stalling an appointment unanimously proposed 
by them if the same is not concurred by two non-judge 
Commission members [second proviso to Section 5(2) and 
F Section 6(6)]. This endows unchecked veto power to non-
judges in appointing judges to
higher courts, compromising 
the judiciary's independence. The Amendment also dilutes the 
judiciary's constitutionally-conferred power by granting 
unbridled power on the Parliament to control, by ordinary law, 
G the manner of selection of a person for appointment to higher 
judiciary, which also damages the independence of judiciary. 
This power enables the Parliament to substitute judiciary's 
primacy with that of the executive. If allowed to stand, the 
provision could easily be further amended thereby denying any 
H
SUPREME COURT ADVOCATES-ON-RECORD 
973 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
effective role for the senior most judges of the higher judiciary A 
in appointment of judges of the Supreme Court and the High 
Courts. Thus, the Amendment does not envisage predominant 
voice for the judges and makes the executive element in 
appointment of judges dominant which alters and damages 
the basic structure of the Constitution. It is also contended 
B 
that the NJAC Act was void as it was passed by the Parliament 
before theAmendmentAct became operative. 
9. Thus, the contentions on behalf of the petitioners are:-
(i) Constitution is supreme and powers of all organs are C 
defined and controlled thereunder; 
(ii) Amending power of Parliament is limited by the 
concept of basic structure as judicially interpreted; 
(iii) Final interpreter of the Constitution and the scope of D 
powers thereunder is this Court; 
(iv) Independence of judiciary and separation of powers 
are part of basic structure; 
(v) Primacy of judiciary in appointment of judges is crucial 
E 
part of independence of judiciary and separation of 
powers and thus part of basic structure; 
(vi) Role of executive and legislature in appointment of 
judges beif:lg kept at minimum was also part of basic F 
structure; 
(vii) The composition of the Commission in the impugned 
Amendment severally damages the basic structure 
of the Constitution by destroying primacy of judiciary 
in appointment of judges and giving
controlling role 
G 
to the executive and legislature in such appointments; 
(viii) The impugned amendment enables stalling of 
appointment of judges proposed by the judiciary 
unless candidates suggested by the executive are 
H
974 
A 
B 
c 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
appointed thereby compromising independence of 
judiciary; 
(ix) The impugned amendment expands the power of 
amendment by delegating crucial issues of 
appointment of judges to Parliament which is against 
the basic structure of the Constitution; 
(x) The composition of the Commission will shake 
confidence of people in Judiciary if Executive or 
Legislature have dominant voice; and 
(xi) The impugned Act is beyond legislative competence 
of the Parliament. 
10. The Joint Secretary, Department of Justice has filed 
a counter affid~vit on behalf of the Union of India (UOI), 
D defending the Amendment and the Act. UOl's case is that 
independence of judiciary is only post appointment. 
Appointment is an executive act and the judiciary's 
independence has no relevance with the executive act of 
appointment. UOI submits that judicial independence is to be 
E coupled with checks and balances and that a contextual 
reading of Articles 124(2) and 217(1) with the Constituent 
Assembly Debates (CAD) makes it evident that there is no 
primacy of the CJI in appointment of judges. Consultation with 
the CJI was only by way of a check on executive, which had 
F the final say in the matter. Further, provision for consultation 
with other judges does not justify creation of a collegium. UOl's ' 
submission refers to impeachment provisions for removal of 
judges (Article 124(4 ); Parliament's power to regulate 
procedure for
presentation of an address and investigation 
G and proof of misbehaviour or incapacity of a judge (Article 
124(5)) and to determine salary of judges and provisions 
pertaining to other aspects of judicial functioning conferring 
power on Parliament to legislate (Article .125). UOI submits 
H that the decisions of this Court in Second Judges' case and
SUPREME COURT ADVOCATES-ON-RECORD 
975 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Third Judges' case laying down primacy of the judiciary in A 
the context of consultative process under Articles 124(1) and 
217(1) have no relevance to test the validity of the impugned 
Ninety Ninth Amendment by which provisions of Artides 124(2) 
and 217(1) stand amended. However, it is contended that the 
view taken in the said judgments that the judiciary has primacy B 
in appointment is erroneous, and needs to be revisited. In any 
case, the UOI contends that the primacy of judiciary in the 
matter of appointment of judges of the higher judiciary has no 
connection with independence of judiciary and is not the basic 
feature of the Constitution. In several countries, such as C 
Australia, independence of judiciary exists without primacy of 
the judiciary in appointments of judges to the higher judiciary. 
UOI submits that the power conferred on Parliament to enact 
law to regulate the procedure of the NJAC or to modify the 
D 
regulations framed by the NJAC is valid. The NJAC is 
accountable to Parliament in framing regulations. The 
presence of Law Minister as a member of the NJAC ensures 
accountability to public. The presence of two eminent persons 
is a check and balance on the functioning of other members. 
E 
Diversity of members will ensure greater accountability of each 
member to the other. This will ensure greater public confidence 
in the functioning of the judiciary. The
NJAC will fall unde.r the 
purview of Right to Information Act, 2005 which will ensure 
transparency. Even if the Amendment was struck down, original 
F 
provisions could not be revived as doctrine of revival does not 
apply to Constitutional Amendments. The issue was raised in 
Property Owners' Association vs. State of Maharashtra 4 
with respect to Article 31 C of the Constitution which is pending 
before a nine-judge Bench. It is also submitted that the writ G 
petition is pre-mature as the new system has not been given a 
chance to operate and no rights have been affected. 
11. The contentions on behalf of the respondents can be 
• (1996) 4 sec 49 
H
976 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
summed up as follows:-
B 
c 
D 
E 
F 
G 
H 
( a) Power of appointment of judges rests with the 
executive and role of judiciary is confined to 
consultation which may or may not be accepted by 
the executive; 
(b) Primacy of judiciary in appointments was recognised 
by erroneous interpretation of unamended provisions 
of the Constitution and by way of amendment such 
interpretation has been corrected and thus there is no 
violation of basic structure. Alternatively larger Bench 
be constituted to correct the earlier interpretation; 
(c) Primacy of judiciary in appointments was not 
inalienable and in changed situation, in the light of 
experiences gained, the primacy could be done away 
with or modified; 
(d) Wisdom of constituent body in making a choice was 
not open to judicial review; . 
(e) Taking the Constitution as a whole, value of 
independence of judiciary could be balanced with other 
constitutional values of democracy, accountability and 
checks and balances; 
(f) Power of amendment was plenary and could not be 
questioned unless it results in destruction of a pillar of 
Constitution; 
(g) Even with power being with executive or power of 
veto being with executive, independence of judiciary 
could survive so long as there was protection of tenure 
and service conditions of judges; 
(h)Accountability and transparency in functioning of every 
constitutional organ was part of democracy in which 
case exclusive power of
appointment of judges with
SUPREME COURT ADVOCATES-ON-RECORD 
977 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
the judiciary was undemocratic; 
A 
(i) The impugned amendment retains primacy by having 
three out of six members, out of which two could stop 
an undesirable appointment. The executive did not 
have predominant role as two eminent persons were 
8 
appointed by a committee having the Prime Minister, 
the CJI and the Leader of Opposition thereby role of 
Prime Minister being limited. Law Minister and 
eminent persons as members ensured giving of 
relevant feedback and ensuring accountability and c 
transparency.; 
U) The impugned amendment in conferring power on 
Parliament and the Central Government in procedural 
matters did not violate independence of judiciary; and 
D 
(k) The impugned Act was within legislative competence 
of Parliament. 
12. Shri Fali S. Nari man, learned senior counsel led the 
arguments on behalf of the petitioners in the lead petition 
followed by S/Shri Ram Jethmalani, Anil B. Divan, K.N. Bhat, 
E 
Arvind Datar, Dr. Rajeev Dhawan, learned senior counsel and 
other counsel appearing either in person or as intervenor or 
otherwise. They have been opposed by learned Attorney 
General Shri Mukul Rohtagi, learned Solicitor General Shri 
Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. 
F 
Venugopal, Harish N. Salve, T.R.Andhyarujina, Dushyant Dave 
learned senior counsel and other learned counsel for various 
States and intervenors or otherwise. I record
my gratitude to 
learned counsel for their painstaking assistance to the Court 
with their exceptional ability and skill for deciding important G 
issues arising for consideration. Their contentions will be 
referred to at appropriate stage to the extent necessary. 
13. While generally learned counsel on either side have 
H
978 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A taken identical stand, Shri Venugopal, appearing for the State 
of M.P., which is otherwise supporting the amendment, in his 
alternative submission, filed on 141h July, 2015 by way of 
additional propositions, inter alia submitted as follows: 
B 
c 
D 
E 
"3 Looking at the scheme of the 99'h Amendment and 
the National Judicial Commission Appointments Act, 
2014 (NJACAct), the scheme evolved provides for the 
constitution of a 6 member Commission and under 
Article 124-C, for the procedure to be provided under a 
law made by the Parliament. The NJA C Act has certain 
salient features that includes under the second proviso 
to Section 5(2), a provision in the nature of a 'veto', as 
no appointment can be made if two members of the 
Commission do not agree to that appointment. This 
provision is challenged by the Petitioners as the 991h 
Amendment Act does not make any such provision and 
to provide for a 'veto', as it were, by two out of six 
members, is stated to be ultra vires the Amendment 
Act or, in any event, not a matter of procedure. 
4 This submission appears to be correct for the following 
reasons: 
a. The principle of 'primacy' of the judiciary, which is a 
part of judicial independence, must necessarily be read 
F 
into the NJAC Act as well. Any Act providing for 
procedure would be ultra vires the Constitutional 
provision if it does not satisfy the requirement of 
primacy. 
The 'veto' provision, therefore, is
clearly 
antithetical to the concept of 'primacy' and must be 
G 
struck down as being ultra vires the amendment. 
H 
xxxxxx 
xx xx xx 
xxxxx 
6. Irrespective of the nine Judges' Bench judgment, 
certain concepts in law exist in the matter of the
SUPREME COURT ADVOCATES-ON-RECORD 
979 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
functioning of the judiciary in a democracy. 
The 
A 
existence of an independent judiciary is a sine qua non 
for democracy to flourish. Here, we are concerned with 
the issue of appointment of judges to the higher 
judiciary. Whether, the power is executive or not, it 
cannot be gainsaid that it impinges on the B 
independence of the judiciary in case the executive 
were to exclusively have the power to appoint the 
judges. Such a system of appointment could result in 
brining into existence judges who are subservient to . 
the will of the Government, which would be a major C 
litigant in the Courts. Independence therefore, would 
stand affected. 
7. If the 'veto' is invalid, then the common law principle 
of majority would apply. The Chief Justice of India and D 
the two other judges have expertise in the matter of 
selection of judges to the higher judiciary and also have 
full knowledge of the functioning of the potential 
candidates. However, the unanimous view of the three 
judges would not carry the day if opposed by the other E 
three members. In every other case, where all six are 
in agreement on a candidate, no problem in making 
the right decision would arise. 
The real question, 
therefore, is what would be the position if a deadlock 
arises when the unanimous decision of the three judges F 
is opposed by the other three members. Needless to 
state, that if the three judges
are not ad idem on a 
candidate, no 'issue of primacy' would arise and the 
majority would prevail. 
8. It is true that the nine judges case can no more hold 
the field for the purpose of nullifying the ggth 
amendment, which, obviously, is inconsistent with the 
Collegium system evolved by the nine judges 
G 
H
980 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
judgment. But that does not mean that the principles 
enunciated by the said judgment could not be relied 
upon as being a juristic principle that would be 
applicable in such cases. 
In other words, these 
principles can be said to be relevant for all time to come 
because of the following reasons: 
a. The power of appointment can be used to affect 
or subvert the independence of the appointees 
when functioning as members of the superior 
judiciary. 
b. A system of appointment where the executive 
voice predominates would affect such 
independence. 
c. If however, the voice of the Chief Justice of India, 
representing the judiciary prevails, even in a 
system where the executive or anyone else has 
a minor part to play, this will nevertheless not 
affect the independence and on the other hand 
would sub-serve independence. In other words, 
primacy in the matter of appointment has to be 
with the judiciary. 
xxxxx 
xxxxx 
xxxxx 
F 
11. These are general principles enunciated by the 
Supreme Court based on the concept of independence 
of the judiciary. 
That concept is all pervasive and 
whenever that situation arises, the Court would, in the 
same manner as it did in the Second Judges' case , 
G 
interpret the present Article 124-A. This would mean 
that the principle of independence underlying the 
appointment of judges of the higher judiciary would 
require that the views of the three judges of the 
Commission,
speaking with a single voice would have 
H
SUPREME COURT ADVOCATES-ON-RECORD 
981 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
primacy. This would be the result not because the 
A 
judgment in the Second Judges' case would bind the 
Court but because the concept of judicial 
independence applicable in the case of appointment 
of judges to the higher judiciary would be applicable 
wherever and whenever a situation arose where no 
B 
explicit provision in the Constitution gave primacy to 
the judicial wing. In such cases, the validity of the 
constitutional provision would be upheld and legitimized 
exactly on the same basis as the cqncept was evolved 
in the Second Judges' case. As a result, the 99th C 
amendment to the Constitution, would always be 
deemed to have been a valid exercise of Constituent 
power. In the absence of the existence of a 'veto', if the 
three Judges speak with a single voice, their decision D 
would prevail. The President would then have to issue 
the warrant of appointment. 
xx~xx 
xxxxx 
xxxxx 
16. 
Apart from the above, petitioners have also 
contended that the term 'eminent person' is too broad E 
and that the appointment of eminent persons who have 
nothing to do with the law and who are not aware of the 
working of the judicial system would result in a violation 
of the principle of judicial independence. 'The rule of F 
purposive interpretation' can be applied to this provision. 
By application of this rule, the Court can interpret 
eminent persons to mean only 'persons trained in
law' 
or 'eminent jurists' (see in this regard, P. Vaikunta 
Shenoy v. P. Hari Sharma (2007) 14 SCC 29 7@ Paras G 
11-13 and VG Shukla v. State (DelhiAmn.) (1980 Supp. 
sec 249@ para 28)" 
The Issue 
14. There being no dispute that a Constitutional 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Amendment can be valid only if it is consistent with the basic 
structure of the Constitution, the core issue for consideration 
is whether the impugned amendment alters or damages the 
said basic structure and is void on that ground. According to 
the petitioners the primacy of judiciary in appointment of judges 
B and absence of interference by the Executive therein is by itself 
a part of basic feature of the Constitution being integral part of 
independence of judiciary and separation of judiciary from the 
Executive. According to the respondents primacy of judiciary 
in appointment of judges is not part of independence of 
C judiciary. Even when appointments are made by Executive, 
independence of judiciary is not affected. Alternatively in the 
amended scheme, primacy of judiciary is retained and 
independence of judiciary is strengthened. The amendment 
0 
promotes transparency and accountability and is a part of 
needed reform without affecting the basic structure of the 
Constitution. To determine the question one has to look at the 
concept of basic feature which controls the amending power 
of the Parliament. This understanding will lead to the decision 
E whether primacy of judiciary and absence of Executive 
interference in appointment of judges is part of such basic 
structure. 
F 
Discussion 
A. Concept of Basic Features - As limitation on 
Power of the Parliament to amend the 
Constitution 
15. Article 368 of
the Constitution provides for power to 
amend the Constitution and procedure therefor. 
In 
G Kesavananda Bharti vs. State of Kera/a 5 (Kesavananda 
Bharti case), the scope of amending power was gone into by 
a bench of 13-Judges. In the concluding para signed by 9-
Judges it was held that "Article 368 does not enable 
'1973 (4) sec 225 
H
SUPREME COURT ADVOCATES-ON-RECORD 
983 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Parliament to alter the basic structure or framework of the 
A 
Constitution". The conclusion was based on interpretation of 
the word 'amendment'. It was observed that the word was 
capable of wide as well as narrow meaning and while wide 
meaning was to be preferred but consistent with the intention 
of Constitution makers and the context. It could not be given 
B 
too wide meaning so as to permit damage to the constitutional 
values which depict the identity of the Constitution.6 
15.1 The basic structure or framework was not 
exhaustively defined but some of the features of the c 
Constitution were held to be the illustrations of the basic 
structure by the majority of seven Judges- Sikri CJ, Shelat, 
Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. Illustrations 
by them include Supremacy of the Constitution, democratic 
form of Government, secular character of the Constitution, 
D 
separation of powers between the Judiciary, the Executive and 
the Legislature, federal character of the Constitution, dignity 
of the individual secured by basic rights in accordance with 
Parts Ill and IV, unity and integrity of the nation.7 
15.2 It was held that the power of the Parliament to amend 
E 
the Constitution was limited by the requirement that basic 
foundation and structure of the Constitution remains the same. 
Power of amendment was envisaged to meet the challenge of 
the problems which
may arise in the course of socio economic 
F 
progress of the country but it was never contemplated that in 
exercise of the power of amendment certain inalienable 
features of the Constitution will be changed. The court referred 
to various decisions in different jurisdictions dealing with the 
.scope of amendment of the Constitution. Sikri, CJ. observed G 
that having regard to importance of freedom of the individual 
and the importance of economic, social and political justice, 
6 (Para 284, Sikri, CJ.); (Para 583, Shela! & Grover, JJ.); (Para 651 Hegde & 
Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna, J.) 
7 Paras 292, 582, 666, 1159, 1426 
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A 
mentioned in the preamble the word "amendment" could not 
be read in its widest sense. The Fundamental Rights could 
not be amended out of existence. Fundamental features of 
secularism, democracy and freedom of individual should 
always subsist. The expression "amendment" had a limited 
B meaning. Otherwise a political party with two-third majority 
could so amend the Constitution as to debar any other party 
from functioning, establish totalitarianism and enslave the 
people and thereafter make the Constitution unamendable. 
Thus, the appeal to democratic principles to justify absolute 
C amending power, if accepted, could damage the very 
democratic principles. Thus, the amendment m~ant addition 
or change within the broad contours of the preamble of the 
Constitution. The Parliament could adjust the Fundamental 
0 
Rights to secure the objectives of the Directive Principles while 
maintaining freedom and dignity of every citizen. The dignity 
and freedom of the individual was held to be of supreme 
importance. The basic features were held to be discernible 
not only from the preamble but .the whole scheme of the 
E Constitution. Shelat & Grover, JJ. observed that the Constitution 
makers did not desire that the citizens will not enjoy the basic 
freedoms, equality, freedom of religion etc. so that dignity of 
an individual is maintained. The economic and social changes 
were to be made without taking away dignity of the
individual. 
F The vital provisions of Part Ill or Part IV could not be cut out or 
denuded of their identity. Hegde and Mukherjea, JJ. observed 
that the power of amendment was conferred on the Parliament. 
People as such were not associated with the amendment. The 
Constitution was given by the people to themselves. The voice. 
G of the members of the Constituent Assembly was of the voice 
of the people. Two-third members of the two Houses of 
Parliament did not necessarily represent even the majority of 
the people. Thus, the two-third members of the two Houses of 
Parliament could not speak on behalf of the entire people of 
H
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
the country8• Even best of the Government was not averse to 
A 
have more and more powers to carry out their plans and 
programmes which they believe to be in public interest, but 
freedom once lost could hardly be regained. Every 
encroachment of freedom sets a pattern for further 
encroachment. The development was envisaged without 
B 
destruction of individual freedoms. Reddy, J. observed if any 
of the essential features was altered, the Constitutional 
structure could not maintain its identity. There could be no 
justice, liberty or equality without democracy. There could be 
no democracy without justice, equality and liberty. The structure C 
of the Constitution was an organic instrument. The core 
commitment to social revolution lies in Parts Ill and IV. They 
are the conscience of the Constitution. They had roots deep 
in the struggle for independence. They were included with the 
D 
hope that one day victory of people would bloom in India. They 
connect India's future, present and past. The demand for 
Fundamental Rights had its inspiration in Magna Carta, the 
English Bill of Rights, the French Revolution, the American Bill 
of Rights incorporated in the US Constitution. Referring to the 
E 
statement of Dr. Ambedkar, that Article 32 was the soul of the 
Constitution and the very heart of it, it was observed that such 
an article could not be abrogated by an amendment. Kha~na,
J. observed that as a result of amendment, the old Constitution 
could not be done away with. Basic structure of framework 
F 
must be retained. It was not permissible to touch the foundation 
or to alter the basic institutional pattern. What can be amended 
is the existing Constitution and what must emerge as a result 
of amendment is not a new and different Constitution but the 
existing Constitution. What was contemplated by amendment G 
was varying of the Constitution here and there and not 
elimination of its basic structure resulting in losing its identity. 
15.3 One of the questions considered was validity of 
' Paras 652 and 653 
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[2015] 13 S.C.R. 
A 
Section 3 of the Twenty-Fifth Amendment Act, 1971 adding 
Article 31-C as follows:-
B 
c 
D 
E 
"416. Section 3 of the twenty-fifth amendment, reads thus: 
3. After Article 31 B of the Constitution, the following 
article shall be inserted, namely: 
31. C. Notwithstanding anything contained in Article 
13, no law giving effect to the policy of the State 
towards securing the principles specified in Clause 
(b) or Clause (c) of Article 39 shall be deemed to be 
void on the ground that it is inconsistent with, or takes 
away or abridges any of the rights conferred by Article 
14, Article 19 or Article 31; and no law containing a 
declaration that it is for giving effect to such policy 
shall be called in question in any court on the ground 
that it does not give effect to such policy: 
"Provided that where such law is made by the legislature 
of a State, the provisions of this article shall nof apply 
thereto unless such law, having been reserved for the 
consideration of the President, has received his assent." 
The highlighted part was held by majority to be 
unconstitutional, for granting immunity from challenge thereby 
affecting the basic feature of judicial review9 
F 
9 Para 1535 A. (Khanna, J.) In my opinion, the second part of Article 31-C is 
liable to be quashed on the following grounds: 
(1) It gives a carte blanche to the Legislature to make any law violative of 
Articles 14, 19 and 31 and make it immune from attack
by inserting the 
requisite declaration. Article 31-C taken along· with its second part gives in 
effect the power to the Legislature, including a State Legislature, to amend 
G 
the Constitution. 
(2) The Legislature has been made the final authority to decide as to 
whether the law made by it is for the objec!S mentioned in Article 31-C. The 
vice of second part of Article 31-C lies in the fact that even if the law enacted 
is not for the object mentioned in Article 31-C, the declaration made by the 
Legislature precludes a party from showing that the law is not for that 
H 
object and prevents a court from going into the question as to whether the
SUPREME COURT ADVOCATES-ON-RECORD 
987 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
15.4 The scope of amending power was again A 
considered by this Court in the cours(lof challenge to Thirty-
Ninth Amendment which debarred any challenge to the election 
of PM and Speaker of the Lok Sabha in Indira Nehru Gandhi 
vs. Raj Narain10• Chandrachud, J. (later the Chief Justice) 
observed that it is not that only certain named features of the 
B 
Constitution are part of its basic structure. The features named 
by individual judges in Kesavananda Bharti case were merely 
illustrations and were not intended to be exhaustive. Having 
regard to its place in the scheme of the Constitution, its object 
and purpose and the consequences of its denial on the integrity C 
of the Constitution, a feature of the Constitution could be held 
to be a basic feature 11 • He added that undoubted unamendable 
basic features are:-
"(i) India is a Sovereign Democratic Republic; (ii) 
Equality of status and opportunity shall be secured to 
all its citizens; (iii) The State shall have no religion of 
its own and all persons shall be equally entitled to 
law enacted is really for that object. The exclusion by the Legislature, including 
a State Legislature, of even that limited judicial review strikes at the basic 
structure of the Constitution. The second.part of Article 31-C goes beyond the 
permissible limit of what constitutes amendment under Article 368.The 
second part of Article 31-C can be
severed from the remaining part of 
Article 31-C and its invalidity would not affect the validity of the remaining part. 
I would, therefore, strike down the following words in Article 31-C: 
"and no law containing a declaration that it is for giving effect to such policy 
shall be called in question in any court on the ground that it does not give 
effect to such policy." 
10 (1975) supp. sec 1 
11 Para 663 - For determining whether a particular feature of the Constitution 
D 
E 
F 
is a part of its basic structure, one has perforce to examine in each individual 
G 
case the place of the particular feature in the scheme of our Constitution, its 
object and purpose, and the consequences of its denial on the integrity of the 
Constitution as a fundamental instrument of country's governance. But it is 
needless for the purpose of these appeals to ransack every nook and cranny 
of the Constitution to discover the bricks of the basic structure. Those that are 
enumerated in the majority judgments are massive enough to cover the 
requirements of Shri Shanti Bhushan's challenge. 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
freedom of conscience and the right freely to profess, 
practise and propagate religion and that (iv) the Nation 
shall be governed by a Government of laws not of men". 
391h Amendment debarring challenge to election inter alia 
8 
of PM was struck down as being against the basic features of 
the Constitution.12 Article 329A, Clause (4) (added by way of 
Amendment) provided that election law will not apply to a 
person holding office of PM and Speaker and election of such 
persons shall not be deemed to be void under any such law. It 
c was held that the democracy was the part of the basic structure 
which contemplated free and fair election. Without there being 
machinery for resolving an election dispute, the elections could 
not be free and fair which in turn will damage the basic feature 
of democracy. In absence of any law to deal with validity of 
o election of PM, the basic feature of rule of law will be violated. 
Referring to the writing of Madison in "The Federalist'; it was 
observed that all powers of the Government could not be vested 
in one Department. No Constitution could survive without 
adherence to checks and balances. "Just as courts ought not 
E to enter into problems entwined in the "political thicket'', 
Parliament must also respect the preserve of the courts 13." 
15.5. Validity of Forty-Second Amendment was 
considered by this Court in Minerva Mills Ltd. vs. Union of 
F /ndia 14• The court considered
the validity of Sections 4 and 55 
of the 42"d Amendment Act. By Section 4, Article 31 C was 
sought to be amended to provide that a law giving effect to 
Part IV of the Constitution could not be deemed to be void for 
being inconsistent with Articles 14, 19 and 31 and could not 
G be challenged on the ground that the said law was not for giving 
12 Khanna and Mathew, JJ held that free and fair election was essential for 
democracy and was part of basic structure. Chandrachud, J. held that right 
of equality was part of basic structure which was violated. Ray, CJ held that 
rule of law was basic structure of the Constitution which was violated. 
13 Para 688 
H 
1• (1980) 3 sec 625
SUPREME COURT ADVOCATES-ON-RECORD 
989 
ASSOCIATION v. U.0.1. [ADARSH·KUMAR GOEL, J.] 
effect to the said Part IV. By Section 55, it was provided that A 
no amendment of the Constitution could be challenged on any 
ground and that there will be no limitation on the constituent 
power of Parliament to amend the Constitution. This Court 
observed that the Constitution had conferred limited amending 
power on the Parliament which itself was a basic feature of B 
the Constitution. The Parliament could not expand its amending 
power so as to destroy the said basic feature of the 
Constitution. The limited power could not be converted into 
unlimited one. Clauses 4 and 5 of Article 368 added by Forty-
Second Amendment were struck down as violative of basic C 
structure of the Constitution. It was observed that the balance 
between Part Ill and Part IV of the Constitution was basic 
feature of the Constitution15• Limited amending power of 
Parliament was also part of basic structure. 16 It was also held D 
that judicial review to determine whether a law was to give 
effect to Part IV could not be excluded as judicial review was 
part of the basic structure. 17 It was also observed that though 
there is no rigid separation of powers in three departments of 
the State - the Executive, the Legislature and the Judiciary, 
E 
there is broad demarcation. Fine balance between the three 
organs could not be upset as it will destroy the fundamental 
premise of a democratic government. The
judiciary is entrusted 
with the duty to keep the Executive and the Legislature within 
the limits of power conferred on them which is also a b·asic 
F 
feature of the Constitution. 18 
15.6. In L. Chandra Kumar vs. Union of lndia 19, part 
of Article 323 -A(2)(d) and 323 - B (3)(d) to the extent it 
excluded the jurisdiction of High Courts in respect of specified 
matters for which jurisdiction was conferred on Tribunals was G 
15 Para 56 
1• Paras 17 and 88 
17 Paras 12, 88 
1• Paras 21, 86 and 87 
" (1997) 3 sec 251 
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A struck down as violative of basic structure. Power of judicial 
review conferred on this Court and the High Courts was held 
to be integral to constitutional scheme in view of earlier 
decisions and conferment of power of judicial review on another 
judicial body could not justify exclusion of jurisdiction of the 
B High Courts.20 
15. 7. In l.R. Coelho vs. State of Tamil Nadu 21, bench 
of nine Judges, considered the scope of judicial review of 
inclusion of a law in Ninth Schedule by a constitutional 
C amendment thereby giving immunity from challenge in view of 
Article 31 B of the Constitution. It was held that every such 
amendment shall have to be tested on the touchstone of 
essential features of the Constitution which included those 
reflected in Articles 14, 19 and 21 and principles underlying 
o them. Such amendments are not immune from the attack on 
the ground they destroy or damage the basic structure. The 
Court will apply the 'rights test' and the 'essence of the rights' 
test taking synoptic view of Articles in Part Ill of the Constitution. 
It was further observed that the Court has to be guided by the 
E ·'impact test' in determining whether a basic feature was 
violated. The Court will first determine if there is violation of 
rights in Part Ill by impugned Amendment, its impact on the 
basic structure of the Constitution and the consequence of 
invalidation of such Amendment22• 
F 
15.8 In M. Nagaraj vs.
Union of lndia 23 , Eighty-Fifth 
and allied amendments to the Constitution were called in 
question on the ground of violation of right of equality as a 
basic feature of the Constitution. 
While considering the 
G challenge, it was observed that the Constitution sets out 
20 Judicial review by constitutional courts was held to be part of basic 
structure. (Paras 77, 78) 
21 (2001) 2 sec 1 
22 Fundamental Rights under Articles 14, 15, 19 and 21 were held to be part 
of basic structure. (Paras 109 and 147) 
H ,, (2006) s sec 212.
SUPREME COURT ADVOCATES-ON-RECORD 
991 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
principles for an expanding future. This called for a purposive A 
approach. to the interpretation. It was observed that a 
constitutional provision must not be construed in a narrow sense· 
but in a wide and liberal sense so as to take into account 
changing conditions and emerging problems and challenges. 
The content of the rights is to be defined by the Courts. Some B 
of the concepts like federalism, secularism, reasonableness 
and socialism reasonableness are beyond the words ofa 
particular provision. They give coherence to the Constitution 
and make the Constitution an organic whole. They are part of 
constitutional law even if they are not expressly stated in the C 
form of rules. To qualify as essential feature, a principle has to 
be established as part of constitutional law and as such binding 
on the legislature. Only then, it could be examined whether it 
was a part of basic feature. Theory of basic feature was based D 
on concept of constitutional identity. The personality of the 
Constitution must remain unchanged. The word 'amendment' 
postulated that the Constitution survived without loss of identity 
despite the change. 24 
Conclusion: 
15.9 It can safely be held that a constitutional amendment 
has to pass the test of basic structure. Whether or not the 
basic structure was violated has to be finally determined by 
this Court from case to case. 
B. Whether Primacy of
Judiciary in Appointment of 
Judges is Part of Basic Structure 
16. Whether a feature of the Constitution is basic feature 
E 
F 
or part of basic structure is to be determined having regard to G 
its place in the scheme of the Constitution and consequence 
of its denial on the working of the Constitution. 
16.1 The judiciary has been assigned the role of 
24 Identity test discussed in M. Nagaraj case (supra) (Para 28) 
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[2015] 13 S.C.R. 
A determining powers of every Constitutional organ as also the 
rights of individuals. The disputes may arise between the 
Government of India and the States, between a citizen and the 
State or between a citizen and a citizen. Disputes relating to 
the powers of Union Legislature and the State Legislature or 
B the exercise of the executive power may involve issues of 
constitutionality or legality. It may involve allegations of 
malafides even against highest constitutional dignitaries. This 
requires an impartial and independent judiciary. The judiciary 
is required to be separate from the executive control. Judiciary 
C has to inspire confidence of the people for its impartiality and 
competence. It has not been disputed by learned Attorney 
General that independence of judiciary is part of the basic 
structure. It is also undisputed that judicial review is part of 
basic structure. The decisions of this Court expressly lay down 
D that independence of judiciary and judicial review are part of 
basic structure. Broad separation of powers between the three 
departments of the State is a part of doctrine of checks and 
balances. It is also a part of democracy. Independence of 
E judiciary is integral to the entire scheme of the Constitution 
without which neither primacy of the Constitution nor Federal 
character, Social Democracy nor rights of equality and liberty 
can be effective. 
16.2 The judiciary has apolitical
commitment in its 
· 
F functioning. Once independence of judiciary is acknowledged 
as a basic feature of the Constitution, question is whether 
power of appointing Judges can be delinked from the concept 
of independence of judiciary or is integral part of it. Can the 
independence of judiciary be maintained even if the 
G appointment of Judges is controlled directly or indirectly by 
the executive? 
H 
16.3 To what extent primacy of judiciary in appointment 
of judges is part of unamendable basic feature of the
SUPREME COURT ADVOCATES-ON-RECORD 
993 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Constitution. Since the issue has been gone into in earlier A 
binding precedents, reference to such decisions is apt. As 
already mentioned, it remains undisputed that power of judidal 
review, independence of judiciary, broad separation of power~ 
in three departments of the State, federalism and democracy 
are the basic features of the Constitution. Stand of the 
B 
respondents is that power of appointment of judges does not 
have impact on such basic features as independence of judges 
is envisaged post appointment. By an amendment, process 
of appointment of judges can be altered to reduce the role of 
judiciary and to increase the role of Executive and Legislature. C 
Alternatively, it is submitted that no substantial change has 
taken place in the said roles. 
16.4 In Second Judge's case, a Bench of 9-Judges of 
this Court examined the question of interpretation of D 
unamended constitutional scheme dealing with the 
appointment of judges of the Constitution case. The issue 
was referred to the Bench of 9-Judges on account of doubts 
having arisen as to the correctness of the view expressed in 
S.P. Gupta vs. Union of lndia25 (First Judges' case), laying 
E 
down that primacy in the matter of appointment of judges rested 
with the Central Government26• The basis of the said decision 
was that the word 'consultation' used in Articles 124, 217 etc. 
implied that the views of the
consultee need not be treated as 
binding as the ultimate power of appointment rested with the 
F 
Central Government. It was held that the views of the CJ I or 
other Judges who were consulted may be entitled to great 
weight but the final view in case of difference of opinion could 
be taken by the Central Government. The word 'consultation' 
G 
25 1981 Supp. SCC 87, Para 30 (Primacy in appointment of judges is held to 
be of Central Government by holding that obligation of the President (the 
Central Government) was only to consult the judiciary which could not be 
treated as binding) 
26 Para 25, Pandian J. (Second Judges Case) : Reasons which led to 
reconsideration of First Judges' case 
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[2015] 13 S.C.R. 
A 
could not be read as 'concurrence'. 
16.5 The view taken was doubted in Subhash Sharma 
vs. Union of lndia27• The question whether opinion of CJ I with 
regard to appointment of Judges was entitled to primacy was 
8 
referred for consi.deration of a larger bench, as already 
mentioned. This Court observed that Constitutional 
phraseology was required to be read and expounded in the 
context of Constitutional philosophfof separation of powers 
and the cherished values of judicial independence. The role of 
c the CJI was required to be recognised as of crucial importance 
for which the view taken in First Judges' case required 
reconsideration by a larger Bench. It was noted that there was 
an anxiety on the part of the Government of the day to assert 
choice in selection of Judges and if the power to recommend 
o appointment of Judges was vested in the State Government 
or the Central Government, the picture was likely to be blurred 
and process of selection may turn out to be difficult. It was 
also observed that the judiciary had apolitical commitment and 
the assurance of non-political complexion of judiciary should 
E 
not be divorced from the process of appointment. The phrase 
"consultation" had to be understood consistent with and to 
promote the constitutional spirit. The constitutional values 
could not be whittled down by calling the appointment of judges 
as an executive act. The appointment was rather the result of
F 
collective constitutional process. It could not be said that power 
to appoint solely vested with the executive·or that the executive 
was free to take such decision as it deems fit after consultation 
with the judiciary. The word "consultation" was used in 
recognition of the status of high constitutional dignitary and 
G could not be interpreted literally. Moreover, the appointment 
not recommended' by Chief Justice of the State and the CJI 
would be inappropriate and arbitrary exercise of power. The 
CJI should have preponderant role. Primacy of CJI will improve 
H 
21 1991 Supp (1) sec 574 - Paras 31-34, 42-46
SUPREME COURT ADVOCATES-ON-RECORD 
995 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
the quality of selection. The view of the Chief Justices of States A 
and CJI .should be detisive unless the executive had material 
indicating that the appointee will be undesirable. The view of 
the majority in First Judges' case did not recognise the said 
pivotal position of the institution of the CJI and correctness of 
the said opinion required reconsideration. It was noted that B 
the Union Government had often stated before Parliament and 
outside that as a matter of policy it had not made any 
appointment without the name being given by the CJI and the 
executive must be held to the standard by which it professed 
its actions to be judged. Upon reference to larger Bench, the C 
view taken in First Judges case was overruled in Second 
Judges' case which was reiterated in the Third Judges case. 
It held that the term "consultation" in Article .124 should not be 
literally construed. It was to be construed in the constitutional D 
background of its purpose and to maintain and uphold 
independence of judiciary. So interpreted, it was held that in 
the event of conflicting opinions of the constitutional 
functionaries, the opinion of the judiciary as symbolized by the 
view of the CJI and formed in the manner indicated, would 
E 
have primacy. 
16.6 Pandian, J. held that the requirement of consultation 
was not relatable to any other service and only applied to 
appointment of judges
in contrast to other high ranking offices. 
The consultation with the CJI was condition precedent for 
F 
appointment and advice given by the judiciary in the process 
had sanctity. The executive power of appointment comes into 
play by virtue of Articles 7 4 a11d 163 though it was not 
specifically provided for in Articles 124 and 217. The State 
was major litigant. The superior courts were faced with 
G 
controversies with political flavour and in such a situation if the 
executive had absolute say in appointment of judges, the 
independence of judiciary will be damaged. The Law 
Commission Reports and opinion of jurists suggested radical 
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[2015] 13 S.C.R. 
A 
change in appointment of judges by cu~bing the executive 
power28• 
16.7 Kuldip Singh, J. observed that the concept of judicial 
independence did not only mean the security of tenure to 
8 
individual judges. There has to be independence of judiciary 
as an institution so that it could effectively act as an impartial 
umpire between the Governments and the individuals or 
between the Governments inter se. It would be illogical to say 
that the judiciary could be independent when power of 
c appointment vested in the Executive. The framers of the 
Constitution never intended to give this power to the Executive 
which was the largest litigant before the courts29• There was 
established constitutional convention recognising the primal 
and binding opinion of CJI in the matter of appointment of 
D judges. All appointments since the commencement of the 
Constitution were made with the concurrence of the CJI. The 
14th Report of the Law Commission and discussion in the 
Parliament on 23rd and 24th November, 1959 were referred 
to30• With regard to the statement of Dr. Ambedkar on 24th 
E May, 1949 before the Constituent Assembly that the CJI could 
not be given a veto on appointment of judges, it was observed 
that primacy of the CJI acting in representative as against 
individual capacity would not be against the objective of the 
said statement31 • 
F 
16.8 Verma, J. observed that the scheme of the 
Constitution of separation of
powers, with the Directive 
Principles of separation of judiciary from Executive, and role 
of the judiciary to secure rule 'of law required that appointment 
G of judges in superior judiciary could not be left to the discretion 
of the Executive. Independence of judges was required even 
H 
" Paras 195 and 207 
29 Paras 334, 335 
30 Para 357 
31 Para 392
SUPREME COURT ADVOCATES-ON-RECORD 
997 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 
at the time of their appointment instead of confining it to the 
A 
provisions for security of tenure and conditions of service. It 
was necessary to prevent influence of political consideration 
on account of appointments by the Executive. In choice of a 
candidate, opinion of CJI should have greatest weight. The 
role of the Executive in the participatory consultative process 
B 
was intended to be by way of a check on the exercise of power 
by the CJI. The Executive element was to be the minimum to 
eliminate political influence32. 
16.9 Accordingly, conclusions were recorded in para 486 C 
to the effect that initiation of proposal for appointment and 
transfer could be initiated by the judiciary and in case of 
conflicting opinions, the opinion of the CJI had the primacy. In 
exceptional cases the appointment could be declined by 
disclosing the reasons but if the reasons were not accepted 
D 
by the CJI acting in representative capacity, the appointment 
was required to be made as a healthy convention. The CJI 
was to be appointed by seniority. The senior most judge, 
considered fit to hold the office, was to be the CJI. 
16.10 Conclusions in Third Judges' case in para 44 E 
reiterated this view with only slight modification. On that basis, 
memoranda of procedure mentioned in earlier part of this 
opinion were issued. The National Commission to Review 
the Working of the Constitution
(NCRWC) headed by Justice 
F 
M.N. Venkatachaliah, in its report dated 31 •1 March, 2002, 
observed that appointment of judges was part of independence 
of judiciary. It was observed that the Executive taking over the 
power of appointment and playing a dominant role will be 
violative, of basic structure of the Constitution, of independence G 
of judiciary33• 
16.11 Contention of the petitioners is that the said 
32 Paras 421, 422, 447 and 450 
33 Paras 9.6 and 9.7 . 
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A 
decisions conclusively recognise primacy of judiciary in 
appointment of judges inferred from the scheme of the 
Constitution and such primacy was part of basic structure. 
16.12 It is submitted that if the Executive has primacy, 
8 
the power of appointment of Judges can be used to affect or 
subvert the independence of the appointees as members of 
the Constitutional Courts. This would be against the intention 
of the Constitution makers. The unamended provision could 
not be replaced by the new mechanism unless the new 
c mechanism ensured that a role of the Judiciary was not 
·decreased and the role of the Executive was not increased 
and the change made had no adverse impact on the functioning 
of the Constitution. If this contention i~ upheld, the impugned 
amendment will have to be struck down unless it could be held 
o that the amended provisions also retained the said primacy. 
E 
If primacy of judiciary is held not to be a part of basic structure 
of the Constitution or it is held that the same is still retained, 
the amendment will have to be upheld. 
C. Plea of the Respondents for re-visiting earlier 
binding precedents 
17. The correctness of the view taken in the above 
decisions was sought to be challenged by learned counsel for 
the respondents. The ground on which reconsideration of the 
F earlier view is sought is that the interpretation in Second and 
Third Judges cases is patently erroneous. Members of the
Constituent Assembly never intended that the CJI should have 
last word on the subject of appointment of Judges. The text 
which was finally approved and which became part of the 
G Constitution did not provide for concurrence of the CJI as has 
been laid down by this Court. It is also submitted that the 
interpretation taken by this Court may have been justified on 
account of the abuse of powers by the Executive specially 
during emergency (as noticed in Union of India vs. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
999 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Sankalchand Himatla/ Sheth34 ) anq in the Law Commission A 
Reports (particularly 14th and 121 st Reports), the same situation 
no longer continues. More over there is global trend for Judicial 
Appointment Commissions. Even without primacy of the 
judiciary in appointment of judges, the judiciary could function 
independently. Judicial Appointment Commission was B 
suggested even earlier. The eminent jurists had criticized the 
existing mechanism for appointment of Judges and particularly 
the working of the collegium system. 
17 .1 Referring to the scheme of Chapter IV of the c 
Constitution, learned Attorney General submitted that Executive 
and the Legislature had the role in the working of the judiciary. 
Salary and Conditions of Service of Judges are fixed by the 
Parliament. The Rules for functioning of the Supreme Court 
are framed with the approval of the President and are subject • D 
to the law made by the Parliament. Parliament could confer 
supplementary powers on the Supreme Court. Conditions of 
service of officers and servants of the Supreme Court are 
subject to law made by the Parliament. The rules framed by 
the CJI require approval of the President. There was inter E 
play of Executive and Legislature in the functioning of the 
judiciary. Independence of judges was in respect of their 
security of tenure and service conditions. 
Manner of 
appointment did not affect
independence of judiciary. 
Executive appointing Comptroller General of India or Election F 
Commission did not affect their independence. Power of 
appointment of judges is the Executive power to be exercised 
by the President with the advice of the Council of Ministers 
after consultation with the judiciary. The doctrine of separation 
of powers or separation of judiciary from Executive does not G 
require that the Executive could have no role in appointment 
of judges. Primacy of judiciary in appointment of judges 
ignores the principles of checks and balances. The 
34 1977 (4) sec 193 (referred to in Paras 125 to 130 Second Judges' case) 
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A 
interpretation placed in the earlier decisions ignores the 
principles of transparency and accountability. Even without 
there being manifest error in earlier decisions, having regard 
to the sensitive nature of the issue and also the fact that an 
amendment has now been brought about, the earlier decisions 
B need to be revisited. 
17.2 The stand of learned Attorney General and other 
learned counsel appearing for the respondents was contested 
by learned counsel for the petitioners. It was submitted that all 
c issues sought to be raised by the respondents were duly 
considered by the Bench of nine-judges. The Central 
Government sought opinion of this Court under Article 143. A 
statement was made by the then learned Attorney General that 
the Second Judges' case was not sought to be reconsidered. 
o. The view of the nine-Judge Bench was based on earlier binding 
decisions in Shamsher Singh vs. State of Punjab35 and 
Sankalchand case (supra) laying down that the last word on 
such matters was of the CJI. The expert studies and the 
Constituent Assembly Debates ruled out pre-dominant role for 
E the Executive or Legislature in appointment of judges. The 
constitutional scheme did not permit interference of the 
Executive in appointment of judges. The Executive could give 
feed back and carry out the Executive functions by making 
appointments but the proposal had to be initiated and finalised 
F by the judiciary. Frequent
reconsideration of opinions by larger 
Benches of this Court was not desirable in absence of any 
doubt about the correctness of the earlier view. 
17 .3 Parameters for determining as to when earlier 
G binding decisions ought to be reopened have been repeatedly 
laid down by this Court. The settled principle is that court 
should not, except when it is demonstrated beyond all 
reasonable doubts that its previous ruling given after due 
deliberation and full hearing was erroneous, revisit earlier 
H 
"1974 (2) sec a31