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
104 
A 
B 
c 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
be seen as such; always bearing in mind that if the 
Constitution Amendment and the statute pertaining 
thereto are held constitutionally valid and are upheld, 
the present presiding Judge would no longer be part of 
the Collegium-the Collegium it must be acknowledged 
exercises significant constitutional power. 
9. In other words would it be inappropriate for the 
Hon'ble Presiding Judge to continue to sit on a Bench 
that adjudicates whether the Collegium system, (as it is 
in place for the past two decades and is stated (in the 
writ petitions) to be a part of the basic structure of the 
Constitution), should continue or not continue. The 
impression in peoples mind would be that it is 
inappropriate if not unfair if a sitting member of a 
Collegium sits in judgment over a scheme that seeks to 
replace it. This is apart from a consideration as to 
whether or not the judgment is (or is not) ultimately 
declared invalid or void: whether in the first instance or 
by Review or in a Curative Petition." 
The above prayer for my recusal was supported by Mr. 
Mathews J. Nedumpara, petitioner-in-person, in writing, as 
under: 
" ..... Hon'ble Shri Justice J.S. Khehar, the presiding Judge, 
a Judge whom the Petitioner holds in high esteem and 
respect, a Judge known for his uprightness, impartiality 
and erudition, the Petitioner is afraid to say, ought not to 
preside over the Constitution Bench deciding the
constitutional validity or otherwise of the Constitution 
(Ninety-ninth Amendment) Act, 2014 and the National 
Judicial Appointments Commission Act, 2014 ("the said 
Acts", for short). His Lordship will be a member of the 
collegium if this Hon'ble Court were to hold that the said 
Acts are unconstitutional or to stay the operation of the 
said Acts, for, if the operation of the Acts is stayed, it is
SUPREME COURT ADVOCATES-ON-RECORD 
105 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
likely to be construed that the collegium system continues A 
to be in force by virtue of such stay order. Though Hon'ble 
Shri Justice J.S. Khehar is not a member of the National 
Judicial Appointments Commission, for, if the NJAC is to 
be constituted today, it will be consisting of the Hon'ble 
Chief Justice of India and two seniormost Judges of this 
B 
Hon'ble Court. With the retirement of Hon'ble Shri H.L. 
Dattu, Chief Justice of India, His Lordship Hon'ble Shri 
Justice J.S. Khehar will become a member of the 
collegium. Therefore, an ordinary man, nay, an informed 
onlooker, an expression found acceptance at the hands of C 
this Hon'ble Court on the question of judicial recusal, will 
consider that justice would not have been done if a Bench 
of th.is Hon'ble Court headed by Hon'ble Shri Justice J.S. 
Khehar were to hear the above case. For a not so informed 
D 
onlooker, the layman, the aam aadmi, this Hon'ble Court 
hearing the Writ Petitions challenging the aforesaid Acts is 
nothing but a fox being on the jury at a goose's trial. The 
Petitioner believes that the Noble heart of his Lordships 
Justice Khehar could unwittingly be influenced by the 
E 
nonconscious, subconscious, unconscious bias, his 
Lordships having been placed himself in a position of 
conflict of interest. 
3. This Hon'ble Court itself hearing the case involving the 
power of appointment of Judges between
the collegium 
F 
and the Government, nay, the executive, will not evince 
any public confidence, except the designated senior 
lawyers who seem to be supporting the collegium system. 
The collegium system does not have any confidence in 
the ordinary lawyers who are often unfairly treated nor the G 
ordinary litigants, the Daridra Narayanas, to borrow an 
expression from legendary Justice Krishna Iyer, who 
considered that the higher judiciary, and the Supreme Court 
in particular, is beyond the reach of the ordinary man. An 
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[2015] 13 S.C.R. 
A 
ordinary lawyer finds it difficult to get even an entry into the 
Supreme Court premises. This is the stark reality, though 
many prefer to pretend not to notice it. Therefore, the 
Petitioner with utmost respect, while literally worshipping 
the majesty of this Hon'ble Court, so too the Hon'ble 
B 
presiding Judge of this Hon'ble Court, in all humility, with 
an apology, if the Petitioner has erred in making this plea, 
seeks recusal by Hon'ble Shri Justice J.S. Khehar from 
hearing the above case." 
c 
13. As a Judge presiding over the reconstituted Bench, I 
found myself in an awkward predicament. I had no personal 
desire to participate in the hearing of these matters. I was a 
part of the Bench, because of my nomination to it, by Hon'ble 
the Chief Justice of India. My recusal from the Bench at the 
o asking of Mr. Fali S. Nariman, whom I hold in great esteem, 
did not need a second thought. It is not as if the prayer made 
by Mr. Mathews J. Nedumpara, was inconsequential. 
14. But then, this was the second occasion when 
proceedings in a matter would have been deferred, just 
E because, Hon'ble the Chief Justice of India, in the first instance, 
had nominated Anil R. Dave, J. on the Bench, and thereafter, 
had substituted him by nominating me to the Bench. It was 
therefore felt, that reasons ought to be recorded, after hearing 
F 
learned counsel, at least for the guidance of Hon'ble the Chief 
Justice of India, so that
His Lordship may not make another 
nomination to the Bench, which may be similarly objected to. 
This, coupled with the submissions advanced by Mr. Mukul 
Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, that 
G parameters should be laid down, led to a hearing, on the issue 
ofrecusal. 
15. On the basis of the submissions advanced by the 
learned counsel, the Bench examined the prayer, whether I 
should remain on the reconstituted Bench, despite my being a 
H member of the 1 +4 collegium. The Bench, unanimously
SUPREME COURT ADVOCATES-ON-RECORD 
107 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
concluded, that there was no conflict of interest, and no other A 
justifiable reason in law, for me to recuse from the hearing of 
these matters. On 22.4.2015, the Bench passed the following 
short order, which was pronounced by J. Chelameswar, J.: 
"A preliminary objection, whether Justice Jagdish Singh 
B 
Khehar should preside over this Bench, by virtue of his 
being the fourth senior most Judge of this Court, also 
happens to be a member of the collegium, was raised by 
the petitioners. Elaborate submissions were made by the 
learned counsel for the petitioners and the respondents. C 
After hearing all the learned counsel, we are of the 
unanimous opinion that we do not see any reason in law 
requiring Justice Jagdish Singh Khehar. to recuse himself 
from hearing the matter. Reasons will follow." 
16. After the order was pronounced, I disclosed to my D 
colleagues on the.Bench, that I was still undecided whether I 
should remain on the Bench, for I was toying with the idea of 
recusal, because a prayer to that effect, had been made in the 
face of the Court. · My colleagues on the Bench, would have 
nothing of it. They were unequivocal in their protestation. 
E 
17. Despite the factual position noticed above, I wish to 
record, that it is not their persuasion or exhortation, which made 
me take a final call on the matter. The decision to remain a 
member of the reconstituted Bench
was mine, and mine alone. 
F 
The choice that I made, was not of the heart, but that of the 
head. The choice was made by posing two questions to myself. 
Firstly, whether a Judge hearing a matter should recuse, even 
though the prayer for recusal is found to be unjustified and 
unwarranted? Secondly, whether I would stand true to the oath G 
of my office, if I recused from hearing the matters? 
18. The reason that was pointed out against me, for 
seeking my recusal was, that I was a part of the 1 +4 collegium. 
But that, should have been a disqualification for Anil R. Dave, J. H
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[2015] 13 S.C.R. 
A 
as well. When he commenced. hearing of the matters, and till 
7.4.2015, he suffered the same alleged disqualification. Yet, 
the objection raised against me, was not raised against him. 
When confronted, Mr. Fali S. Nariman vociferously contested, 
that he had not sought the recusal of Anil R. Dave, J. He 
B 
supported his assertion with proof. One wonders, why did he 
not seek the recusal of Anil R. Dave, J.? There is no doubt 
about the fact, that I have been a member of the 1 +4 collegium, 
and it is likely that I would also shortly become a Member of 
the NJAC, if the present challenge raised by the petitioners 
C 
was not to succeed. I would therefore remain a part of the 
selection procedure, irrespective of the process which prevails. 
That however is the position with reference to four of us (on 
the instant five-Judge Bench). Besides me, my colleagues on 
the Bench - J. Chelameswar, Madan B. Lokur and Kurian 
D Joseph, JJ. would in due course be a part of the collegium (if 
the writ-petitioners before this Court were to succeed), or 
alternatively, would be a part of the NJAC (if the writ-petitioners 
were to fail). In such eventuality, the averment of conflict of 
E 
interest, ought to have been raised not only against me, but 
also against my three colleagues. But, that was not the manner 
in which the issue has been canvassed. In my considered view, 
the prayer for my recusal is not well founded. If I were to
accede 
to the prayer for my recusal, I would be initiating a wrong 
F 
practice, and laying down a wrong precedent. A Judge may 
recuse at his own, from a case entrusted to him by the Chief 
Justice. That would be a matter of his own choosing. But recusal 
at the asking of a litigating party, unless justified, must never to 
be acceded to. For that wo·uld give the impression, of the Judge 
G had been scared out of the case, just by the force of the 
·objection.A Judge before he assumes his office, takes an oath 
to discharge his duties without fear or favour. He would breach 
his oath of office, if he accepts a prayer for recusal, unless 
justified. It is my duty to discharge my responsibility with 
H absolute earnestness and sincerity. It is my duty to abide by
SUPREME COURT ADVOCATES-ON-RECORD 
109 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
my oath of office, to uphold the Constitution and the laws. My A 
decision to continue to be a part of the Bench, flows from the 
oath which I took, at the time of my elevation to this Court. 
THE REFERENCE ORQER 
I. THE CHALLENGE: 
B 
1. The question which has arisen for consideration, in 
the present set of cases, pertains to the constitutional validity 
of the Constitution (Ninety-ninth Amendment) Act, 20~4 
(hereinafter referred to as, the Constitution (99thAmendment) C 
Act), as also, that of the National Judicial Appointments 
Commission Act, 2014 (hereinafter referred to as, the NJAC 
Act). 
2. During the course of hearing on the merits of the 
controversy, which pertains to the selection and appointment D 
of Judges to the higher judiciary (i.e., Chief Justices and 
Judges of the High Courts and the Supreme Court), and the 
transfer of Chief Justices and Judges of one High Court to. 
another, it emerged that learned counsel for the respondents, 
were inter alia relying on the judgment rendered in S.P. Gupta 
E 
v. Union of lndia1, (hereinafter referred to as, the First Judges 
case); whereas, the learned counsel for the petitioners were 
inter alia relying on thejudgment in Supreme CourtAdvocates-
on-Record Association v. Union of lndia2 (hereinafter referred 
to as, the Second Judges case), and the judgment in Re: · F 
Special Reference No.1 of 19983, (hereinafter referred to
as, 
the Third Judges case). 
3. Per se, the stance adopted by learned counsel for the 
respondents in placing reliance on the judgment in the First G 
Judges case, was not open to them. This, for the simple reason, 
that the judgment rendered in the First Judges case, had been 
1 1981 (Supp) sec 87 
2 (1993) 4 sec 441 
' (1998) 1 sec 739 
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[2015] 13S.C.R. 
A overruled by a larger Bench, in the Second Judges case. And 
furthermore, the exposition of law declared in the Second 
Judges case, was reaffirmed by the Third Judges case. 
4. Visualizing, that the position adopted by the 
8 
respondents, was not legally permissible, theAttomey General, 
the Solicitor General, and other learned counsel representing 
the respondents, adopted the only course open to them, namely, 
to seek reconsideration of the decisions rendered by this Court 
in the Second and Third Judges cases. For the above objective 
c it was asserted, that various vital aspects of the matter, had 
not been brought to the notice of this Court, when the controversy 
raised in the Second Judges case was canvassed. It was 
contended that, had the controversy raised in the Second 
Judges case, been examined in the right perspective, this 
b Court would not have recorded the conclusions expressed 
therein, by the majority. It was submitted, thattill the respondents 
were not permitted to air their submissions, with reference to 
the unacceptability of the judgments rendered in the Second 
and Third Judges cases, it would not be in the fitness of 
E matters, for this Court to dispose of the present controversy, 
by placing reliance on the said judgments. 
5. Keeping in mind the importance and the sensitivity of 
the controversy being debated, as also, the vehemence with 
F which learned counsel representing the respondents,
pressed 
for a re-examination of the judgments rendered by this Court, 
in the Second and Third Judges cases, we permitted them, to 
detail the basis of their assertions. 
6. Before embarking on the issue, namely, whether the 
G judgments rendered by this Court in the Second and Third 
Judges cases, needed to be revisited, we propose first of all, 
to determine whether or not it would be justified for us, in the 
peculiar facts and circumstances of this case, keeping in view 
the technical parameters laid down by this Court, to undertake 
H
SUPREME COURT ADVOCATES-ON-RECORD 
111 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the task. In case, we conclude negatively, and hold that the 
A 
prayer seeking a review of the two judgments was not justified, 
that would render a quietus to the matter. However, even if the 
proposition canvassed at the behest of the respondents is not 
accepted, we would still examine the submi.ssions canvassed 
at their behest, as in a matter of such extreme importance and 
B 
sensitivity, it may not be proper to reject a prayer for review, on 
a mere technicality. We shall then endeavour to determine, 
whether the submissions canvassed at the hands of the 
respondents, demonstrate clear and compelling reasons, for 
a review of the conclusions recorded in the Second and Third C 
Judges cases. We shall also venture to examine, whether the 
respondents have been able to prima facie show, that the 
earlier judgments could be seen as manifestly incorrect. For 
such preliminary adjudication, we are satisfied, that the present D 
bench-strength satisfies the postulated requirement, 
expressed in the proviso under Article 145(3). 
7. Consequent upon the above examination, if the 
judgments rendered in the Second and Third Judges cases, 
are shown to prima facie require a re-look, we would then delve E 
on the merits of the main controversy, without permitting the 
petitioners to place "reliance on either of the aforesaid two 
judgments. 
8. In case, we do not accept the submissions
advanced 
F 
at the hands of the petitioners on merits, with reference to the 
main controversy, that too in a sense would conclude the 
matter, as the earlier regime governed by the Second and Third 
Judges cases, would become a historical event, of the past, 
as the new scheme contemplated under the impugned G 
Constitution (99thAmendment)Act, along with the NJACAct, 
would replace the earlier dispensation. In the above eventuality, 
the question of re-examination of the Second and Third Judges 
cases would be only academic, and therefore uncalled for. 
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[2015] 13 S.C.R. 
A 
9. However, if we accept the submissions advanced at 
the hands of the learned counsel for the petitioners, resulting 
in the revival of the earlier process, and simultaneously 
conclude in favour of the respondents, that the Second and 
Third Judges cases need a re-look, we would be obliged to 
B refer this matter to a nine-Judge Bench (or even, to a larger 
Bench), for re-examining the judgments rendered in the Second 
and Third Judges cases. 
II. THE BACKGROUND TO THE CHALLENGE: 
C 
10. Judges to the Supreme Court of India and High Courts 
·of States, are appointed under Articles 124 and 217 
respectively. Additional Judges and acting Judges for High 
Courts are appointed under Articles 224 and 224A. The 
transfer of High Court Judges and Chief Justices, of one High 
D Court to another, is made under Article 222. For the controversy 
in hand, it is essential to extract the original Articles 124 and 
217, hereunder: 
E 
F 
G 
H 
"124. Establishment and constitution of Supreme Court. 
(1) There shall be a Supreme Court of India consisting 
of a Chief Justice of India and, until Parliament by law 
• 
prescribes a larger number, of not more than seven 
other Judges. 
(2) Every Judge of the Supreme Court shall be 
appointed by the President by warrant under his hand 
and seal after consultation with such of the Judges of 
the Supreme Court and of the High Courts in the States 
as the President may deem necessary for the purpose
and shall hold office until he attains the age of sixty-five 
years: 
Provided that in the case of appointment of a Judge 
other than the Chief Justice, the Chief Justice of India 
shall always be consulted: 
Provided further that-
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(a) a Judge may, by writing under his hand addressed A 
to the President, resign his office; 
(b) a Judge may be removed from his office in the 
manner provided in clause (4 ). 
(2A) The age of a Judge of the Supreme Court shall be 8 
determined by such authority and in such manner as 
Parliament may by law provide. 
(3) A person shall not be qualified for appointment as a 
Judge of the Supreme Court unless he is a citizen of 
lndiaand-
(a) has been for at least five years a Judge of a High 
Court or of two or more such Courts in succession; or 
(b) has been for at least ten years an advocate of a 
High Court or of two or more such courts in succession; 
or 
(c) is, in the opinion of the President, a distinguished 
jurist. 
c 
D 
Explanation /.-In this clause "High Court" means a High 
Court which exercises, or which at any time before the 
E 
commencement of this Constitution exercised, 
jurisdiction in any part of the territory of India. 
Explanation 1/.-ln computing for the purpose of this 
clause the period during which a person has been an 
advocate, any period during which a person has held 
F 
judicial office not inferior to that of a district Judge after 
he became an advocate shall be included. 
(4) A Judge of the Supreme Court shall not be removed 
from his office except by an order .of the President G 
passed after an address by each House of Parliament 
supported by a
majority of the total membership of that 
House and by a majority of not less than two-thirds of 
the members of the House present and voting has been 
presented to the President in the same session for such 
Ir!
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[2015] 13 S.C.R. 
removal on the ground of proved misbehaviour or 
incapacity. 
(5) Parliament may by law regulate the procedure for 
the presentation of an address and for the investigation 
and proof of the misbehaviour or incapacity of a Judge 
under clause (4 ). 
(6) Every person appointed to be a Judge of the 
Supreme Court shall, before he enters upon his office, 
make and subscribe before the President, or some 
person appointed in that behalf by him, an oath or 
affirmation according to the form set out for the purpose 
in the Third Schedule. 
(7) No person who has held office as a Judge of the 
Supreme Court shall plead or act in any court or before 
any authority within the territory of India." 
"217. Appointment and conditions of the office of a 
Judge of a High Court.-(1) Every Judge of a High Court 
shall be appointed by the President by warrant under 
his hand and seal after consultation with the Chief Justice 
of India, the Governor of the State, and, in the case of 
appointment of a Judge other than the Chief Justice, 
the Chief Justice of the High Court, and shall hold office, 
in the case of an additional or acting Judge, as provided 
in article 224, and in any other case, until he attains the 
age of sixty-two years: 
Provided that-
( a) a Judge may, by writing under his hand addressed 
to the Pres)dent, resign his office; 
(b) a Judge may be removed from his office by the 
President in the manner
provided in clause ( 4) of article 
124 for the removal of a Judge of the Supreme Court; 
(c) the office of a Judge shall be vacated by his being 
appointed by the President to be a Judge of the
SUPREME COURT ADVOCATES-ON-RECORD 
115 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Supreme Court or by his being transferred by the 
A 
President to any other High Court within the territory of 
India. 
(2) A person shall not be qualified for appointment as a 
Judge of a High Court unless he is a citizen of India 
and-
B 
(a) has for at least ten years held a judicial office in the 
territory of India; or 
(b) has for at least ten years been an advocate of a High 
Court or of two or more such courts in succession; 
c 
Explanation.- For the purposes of this clause -
(a) in computing the period during which a person has 
held judicial office in the territory of India, there shall be 
included any period, after he has held any judicial office, 
D 
during which the person has been an advocate of a High 
Court or has held the office of a member of a tribunal or 
any post, under the Union or a State, requiring special 
knowledge of law; 
(aa) in computing the period during which a person has E 
been an advocate of a High Court, there shall be · 
included any period during which the person has held 
judicial office or the office of a member of a tribunal or 
any post, under the Union or a State, requiring special 
knowledge of law after he became an advocate; 
F 
(b) in computing the period during which a person has 
held judicial office in the territory of India or been an 
advocate of High Court, there shall be included any 
period before the commencement of this
Constitution 
during which he has held judicial office in any area whic:h 
G 
was.comprised before the fifteenth day of August, 194 7, 
within India as defined by the Government of India Act, 
1935, or has been an advocate of any High Court in 
any such area, as the case may be. 
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[2015] 13S.C.R. 
A 
(3) If any question arises as to the age of a Judge of a 
High Court, the question shall be decided by the 
President after consultation with the Chief Justice of India 
and the decision of the President shall be final." 
11. The true effect and intent of the provisions of the 
B 
Constitution, and all other legislative enactments made by the 
Parliament, and the State legislatures, are understood in the 
manner they are interpreted and declared by the Supreme 
Court, under Article 141. The manner in which Articles 124 
and 217 were interpreted by this Court, emerges principally 
C from three-Constitution Bench judgments of this Court, which 
are now under pointed consideration. The first judgment was 
rendered, by a seven-Judge Bench, by a majority of 4:3, in the 
First Judges case on 30.12.1981. The correctness of the First 
Judges case was doubted by a three-Judge Bench in Subhash 
D Sharma v. Union of lndia4, which opined that the majority view, 
in the First Judges case, should be considered by a larger 
Bench. The Chief Justice of India constituted a nine-Judge 
Bench, to examine two questions: Firstly, whether the opinion 
of the Chief Justice of India in regard to the appointment of 
E Judges to the Supreme Court and to the High Courts, as well 
as, transfer of Chief Justices and Judges of High Courts, was 
entitled to primacy? And secondly, whether the fixation of the 
judge-strength in High Courts, was justiciable? By
a majority 
of 7:2, a nine-Judge Bench of this Court, in the Second Judges 
F 
case, overruled the judgment in the First Judges case. The 
instant judgment was rendered on 6.10.1993. Consequent 
upon doubts having arisen with the Union of India, about the 
interpretation of the Second Judges case, the President of 
India, in exercise of his power under Article 143, referred nine 
G questions to the Supreme Court, for its opinion. A nine-Judge 
Bench answered the reference unanimously, on 28.10.1998. 
12. After the judgment of this Court in the Second Judges 
case was rendered in 1993, and the advisory opinion of this 
H • 1991 Supp (1) sec 574
SUPREME COURT ADVOCATES-ON-RECORD 
117 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Court was tendered to the President of India in 1998, the term A 
"consultation" in Articles 124(2) and 217(1 ), relating to 
appointment (as well as, transfer) of Judges of the higher 
judiciary, commenced to be interpreted as vesting primacy in 
the matter, with the judiciary. This according to the respondents, 
had resulted in the term "consultation" being understood as 
B 
"concurrence" (in matters governed by Articles 124, 217 and 
222). The Union of India, then framed a Memorandum of 
Procedure on 30.6.1999, for the appointment of Judges and 
Chief Justices to the High Courts and the Supreme Court, in 
consonance with the above two judgments. And appointments C 
came to be made thereafter, in consonance with the 
Memorandum of Procedure. 
13. As per the position expressed before us, a feeling 
came to be entertained, that a Commission for selection and o 
appointment, as also for transfer, of Judges of-the higher 
judiciary should be constituted, which would replace the 
prevailing procedure, for appointment of Judges and Chief 
Justices of the High Courts and the Supreme Court of India, 
contemplated under Articles 124(f) and 217(1 ). It was felt, 
E 
that the proposed Commission should be broad based. In 
that, the Commission should comprise of members of the 
judiciary, the executive and eminent/important persons from 
public life. In the above manner, it was proposed to
introduce 
transparency in the selection process. 
F 
14. To achieve the purported objective, Articles 124 and 
217 were inter alia amended, and Articles 124A, 1248 and 
124C were inserted in the Constitution, through the Constitution 
(99th Amendment) Act, by following the procedure G 
contemplated under Article 368(2), more particularly, the 
proviso thereunder. The amendment, received the assent of 
the President on 31.12.2014. It was however given effect to, 
with effect from 13.4.2015 (consequent upon its notification in 
the Gazette of India (Extraordinary) Part 11, Section 1 ). 
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[2015]13S.C.R. 
/'\ Simultaneously therewith, the Parliament enacted the NJAC 
Act, which also received the assent of the President on 
31.12.2014. The same was also brought into force, with effect 
from 13.4.2015 (by its notification in the Gazette of India 
(Extraordinary) Part 11, Section 1 ). The above constitutional 
B amendment and the legislative enactment, are subject matter 
of challenge through a bunch of petitions, which are collectively 
being heard by us. In order to effectively understand the true 
purport of the challenge raised by the petitioners, and the 
nuances of the legal and constitutional issues involved, it is 
C imperative to have a bird's eye view of the First Judges case, 
upon which reliance has been placed by the learned counsel 
for the respondents, in their attempt to seek a review of the 
Second and Third Judges cases. 
D 
The First Judges case -1981 Supp SCC 87. 
15. The Union Law Ministeraddressed a letter dated 
18.3.1981 to the Governor of Punjab and to Chief Ministers of 
all other States. The addressees were inter a/ia informed, 
that" ... one third of the Judges of High Court, should as far as 
E possible be from outside t~e State in which the High Court is 
situated ... ". Through the above letter, the addressees were 
requested to " ... (a) obtain from all additional Judges working 
in the High Courts ... their consent to be appointed as 
F permanent Judges in any other High Court in the country ... " 
The
above noted letter required, that the concerned appointees 
" ... be required to name three High Courts, in order of 
preference, to which they would prefer to be appointed as 
permanent Judges; and (b) obtain from persons who have 
G already been or may in the future be proposed by you for initial 
appointment their consent to be appointed to any other High 
Court in the country along with a similar preference for three 
High Courts ... ". The Union Law Minister, in the above letter 
clarified, that furnishing of their consent or indication of their 
H preference, would not imply any commitment, at the behest of
SUPREME COURT ADVOCATES-ON-RECORD 
119 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the Government, to accommodate them in accordance with 
A 
their preferences. In response, quite a few additional Judges, 
gave their consent to be appointed outside their parent State. 
(i) Iqbal Chagla (and the other petitioners) felt, that the letter 
dated 18.3.1981 was a direct attack on the "independence of B 
the judiciary", and an uninhibited assault on a vital/basic feature 
of the Constitution. A series of Advocates' Associations in 
Bombay passed resolutions, condemning the letter dated 
18.3.1981, as being subversive of "judicial independence". 
They demanded the withdrawal of the letter. Since that was c 
not done, a writ petition was filed by the above Associations in 
the Bombay High Court, challenging the letter dated 18.3.1981. 
An interim order was passed by the High Court, restraining 
the Union Law Minister and the Government from implementing 
the letter dated 18.3.1981. A Letters Patent Appeal preferred D 
against the above interim order, came to be dismissed by a 
Division Bench of the High Court. The above interim order, 
was assailed before this Court. While the matter was pending · 
before this Court, the Union Law Minister and the Government 
of India, filed a transfer petition under Article 139A. The transfer E 
petition was allowed, and the writ petition filed in the Bombay 
High Court, was transferred to the Supreme Court. 
(ii) A second petition was filed
by V.M. Tarkunde, in the High 
Court of Delhi. It raised a challenge to the constitutional validity F 
of the letter dated 18.3.1981. One additional ground was 
raised with reference to the three additional Judges of the Delhi 
High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad, 
JJ., whose term was expiring on 6.3.1981. Ratherthan being 
appointed for a further term of two years, their appointment G 
was extended for three months, from 7 .3.1981. These short 
term appointments were assailed, as being unjustified under 
Article 224, besides being subversive of the "independence 
of the judiciary". This writ petition was also transferred for 
hearing to the Supreme Court. So far as the circular letter H
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[2015] 13 S.C.R. 
A 
dated 18.3.1981 is concerned, the Supreme Court, on an oral 
prayer made by the petitioner, directed that any additional 
Judge who did not wish to respond to the circular letter may 
not do so, and that, he would neither be refused extension nor 
permanent appointment, on the ground that he had not sent a 
B 
reply to the letter dated 18.3.1981. Thereafter, the appointment 
of S.B. Wad, J., was continued, as an additional Jud!;Je for a 
period of one year from 7.6.1981, but O.N. Vohra and S.N. 
Kumar, JJ., were not continued beyond 7.6.1981. 
C 
(iii & iv). A third writ petition, was filed by J.L. Kalra and others, 
who were practicing Advocates, in the Delhi High Court. And 
a fourth writ petition was filed by S.P. Gupta, a practicing 
Advocate, of the Allahabad High Court. The third and fourth 
writ petitions were for substantially the same reliefs, as the 
D earlier two petitions. 
(v) A fifth writ petition, was filed by Lily Thomas. She challenged. 
a transfer order dated 19.1.1981, whereby the Chief Justice 
of the High Court of Madras was transferr;ed as the Chief 
Justice of the High Court of Kerala. The above order had been 
E 
passed by the President, under Article 222(1 ), after consultation 
with the Chief Justice of India. Likewise, the transfer of the 
Chief Justice of the High Court of Patna to the Madras High 
Court was challenged by asserting, that the power of transfer 
F 
under Article 222(1 )was limited to
Judges of the High Courts, 
and did not extend to Chief Justices. Alternatively, it was 
contended, that transfers could only be made with the consent 
of the concerned Judge, and only in public interest, and after 
full and effective consultation with the Chief Justice of India. 
G (vi & vii) A sixth writ petition was filed by A. Rajappa, principally 
challenging the order dated 19.1.1981, whereby some Chief 
Justices had been transferred. One additional submission was 
raised in this petition, namely, that the transfer of the Chief 
Justices had been made without the prior consultation of the 
H Governors of the concerned States, and further, that the said
SUPREME COURT ADVOCATES-ON-RECORD 
121 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
transfers we:ire not in public interest, and therefore, violated 
A 
the procedural requirements contained in Article 217(1 ). The 
seventh writ petition was filed by P. Subramanian, on the same 
grounds, as the petition filed by A. Rajappa. 
(viii) An eighth writ petition was filed by D.N. Pandey and Thakur 8 
Ramapati Sinha, practicing Advocates, of the Patna High 
Court. In this petition, Justice K.B.N. Singh, the Chief Justice 
of the Patna High Court was impleaded as respondent no.3. 
On a prayer made by respondent no.3, he was transposed as 
petitioner no.3. As petitioner no.3, Justice K.B.N. Singh filed c 
a detailed affidavit asserting, that his transfer had been made 
as a matter of punishment, and further, that it had been made 
on irrelevant and on insufficient grounds, and not in public 
interest. And further that, it was not preceded by a full and 
effective consultation with the Chief Justice of India, 
D 
It is therefore apparent, that the above mentioned 
petitions related to two different sets of cases. Firstly, the issue 
pertaining to the_ initial appointment of Judges, and the 
extension of the term of appointment of additional Judges, on 
the expiry of their original term. And secondly, the transfer of E 
Judges and Chief Justices from one High Court to another . 
• 
16. The opinions recorded in the First Judges case, 
insofar as they are relevant to the present
controversy, are being 
summarized herein: 
F 
P. N. Bhagwati. J. (as he then was): 
(i) On the subject of independence of the judiciary, it was 
opined, that" ... Th~ concept of independence of judiciary is a 
noble concept which inspires the constitutional scheme and G 
constitutes the foundatiqn on which rests the edifice of our 
democratic polity. If there is one principle which runs through 
the entire fabric of the entire Constitution, it is the principle of 
the rule of law and under the Constitution, it is the judiciary 
which is entrusted with the task of keeping every organ of the 
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State within the limits of the law and thereby making the rule of 
law meaningful and effective ... The judiciary stands between 
the citizen and the State as a bulwark against executive 
excesses and misuse or abuse of power by the executive, and 
therefore, it is absolutely essential that the judiciary must be 
B free from executive pressure or influence and this has been 
secured by the Constitution makers by making elaborate 
provisions in the Constitution. " ... It was felt, that the concept 
of "independence of the judiciary" was not limited only to the 
independence from executive pressure or influence, but it was 
C a much wider concept, which took within its sweep, 
independence from many other pressures and prejudices. It 
had many dimensions, namely, fearlessness of other power 
centers, economic or political, and freedom from prejudices 
0 
acquired and nourished by the class to which the Judges 
belong. It was held, that the principle of "independence of the 
judiciary" had to be kept in mind, while interpreting the 
provisions of the Constitution (paragraph 27). 
(ii). On the subject of appointment of High Court Judges, it . 
E was opined, that just like Supreme Court Judges, who are 
appointed under Article 124 by the President (which in effect 
and substance mewitthe Central Government), likewise, the 
power of appointment of High Court Judges under Article 217, 
was to be exercised by the Central Government.
Such power, 
F it was held, was exercisable only" ... after consultation with the 
Chief Justice of India, the Governor of the State, and, the Chief 
Justice of the High Court ... " It was concluded, that it was clear 
on a plain reading of the above two Articles, that the Chief 
Justice of India, the Chief Justice of the High Court, and such 
G other Judges of the High Court and of the Supreme Court (as 
the Central Government may deem necessary to consult), were 
constitutional functionaries, having a consultative role, and the 
power of appointments rested solely and exclusively in the 
H decision of the Central Government. It was pointed out, that
SUPREME COURT ADVOCATES-ON-RECORD 
123 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the above power was not an unfettered power, in the sense, 
A 
that the Central Government could not act arbitrarily, without 
consulting the constitutional functionaries specified in the two 
Articles. The Central Government was to act, only after 
consulting the constitutional functionaries, and that, the 
consultation had to be full and effective (paragraph 29). 
B 
(iii). On the question of the meaning of the term "consultation" 
expressed in Article 124(2) and Article 217(1 ), it was held, 
that this question was no longer res integra, as the issue stood 
concluded by the decision of the Supreme Court in Union of c 
India v. Sankalchand Himatlal Sheth5, wherein its meaning was 
determined with reference to Article 222(1 ). But, since it was 
the· common ground between the parties, that the term 
"consultation" used in Article 222(1) had the same meaning, 
which it had in Articles 124(2) and 217(1 ), it was held that, 
D 
" ... therefore, it follows that the President must communicate 
to the Chief Justice all the material he has and the course he 
proposes. The Chief Justice, in turn, must collect necessary 
information through responsible channels or directly, acquaint 
himself with the requisite data, deliberate on the information 
E 
he possesses and proceed in the interests of the 
administration of justice to give the President such counsel of 
action as he thinks will further
the public interest, especially 
the cause of the justice system ... " It was further concluded, 
that the above observation in the Sankalchand Himatlal Sheth F 
case5 would apply with equal force to determine the scope 
and meaning of the term "consultation" within the meaning of 
Articles 124(2) and 217(1). Each of the constitutional 
functionaries, required to be consulted under these two Articles, 
must have for his consideration, full and identical facts bearing G 
upon appointment or non-appointment of the person 
concerned, and the opinion of each of them taken on identical 
material, must be considered by the Central Government, 
• (1977) 4 sec 193 
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[2015] 13S.C.R. 
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before it takes a decision, whether or not to appoint the person 
concerned as a Judge. It was open to the Central Government 
to take its own decision, in regard to the appointment or non-
appointment of a Judge to a High Court or the Supreme Court, 
after taking into account and giving due weight to, the opinions 
B expressed. It was also observed, that the only ground on which 
such a decision could be assailed was, that the action was 
based on ma/a tides or irrelevant considerations. In case of a 
difference of opinion amongst the constitutional functionaries, 
who were to be consulted, it was felt, that it was forthe Central 
C 
Government to decide, whose opinion should be accepted. 
The contention raised on behalf of the petitioners, that in the 
consultative process, primacy should be that of the Chief 
Justice of India, since he was the head of the Indian judiciary 
D and paterfamilias of the judicial fraternity, was rejected for the 
reason, that each of the constitutional functionaries was entitled 
to equal weightage. With reference to appointment of Judges 
of the Supreme Court, it was held, that the Chief Justice of 
India was required to be consulted, but the Central Government 
E was not bound to act in accordance with the opinion of the 
Chief Justice of India, even though, his opinion was entitled to 
great weight. It was therefore held, that the ultimate power of 
appointment, 
rested 
with 
the Central
Government 
(paragraph 30). 
F 
(iv). On the issue of appointment of Judges of the Supreme 
Court, it was concluded, that consultation with the Chief Justice 
of India was a mandatory requirement. But while making an 
appointment, consultation could extend to such other Judges 
of the Supreme Court, and of the High Courts, as the Central 
G Government may deem necessary. In response to the 
submission, where only the Chief Justice of India was consulted 
(i.e., when consultation did not extend to other Judges of the 
Supreme Court, or of the High Courts), whether the opinion 
H tendered by the Chief Justice of India should be treated as
SUPREME COURT ADVOCATES-ON-RECORD 
125 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
binding, it was opined, that there was bound to be consultation, 
A 
with one or more of the Judges of the Supreme Court and of 
the High Courts, before exercising the power of appointment 
conferred under Article 124(2). It was felt, that consultation 
with the Chief Justice of India alone, with reference to the 
appointment of Judges to the Supreme Court, was not a very 
B 
satisfactory mode of appointment, because wisdom and 
experience demanded, that no power should rest in a single 
individual howsoever high and great he may be, and howsoever 
honest and well-meaning. It was suggested, that it would be 
more appropriate if a collegium would make the C 
recommendations to the President, with regard to 
appointments to the higher judiciary, and the recommending 
authority should be more broad based. If the collegium was 
comprised of persons who had knowledge of persons, who D 
may be fit for appointment to the Bench, and possessed the 
qualities required for such appointment, it would go a long way 
towards securing the right kind of Judges, who would be truly 
independent (paragraph 31 ). 
(v) It was held, that the appointment of an additional Judge, 
E 
must be made by following the procedure postulated in Article 
217(1 ). Accordingly, when the term of an additional Judge 
expired, and he ceased to be a Judge, his reappointment could 
only be made by once again adopting the
procedure set out in 
Article 217(1 ). The contention, that an additional Judge must F 
automatically and without any further consideration be 
appointed as an additional Judge for a further term, or, as a 
permanent Judge, was rejected (paragraphs 38 to 44). 
(vi) On the question of validity of the letter of the Union Law G 
Minister dated 18.3.1981, it was opined, that the same did 
not violate any legal or constitutional provision. It was felt, that 
the advance consent sought to be obtained through the letter 
dated 18.3.1981, from additional Judges or Judges prior to 
their permanent appointment, would have no meaning, so far H
126 
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[2015] 13 S.C.R. 
A 
as the Chief Justice of India was concerned, because 
irrespective of the fact, whether the additional Judge had given 
his consent or not, the Chief Justice of India would have to 
consider, whether it would be in public interest to allow the 
additional Judge to be appointed as a permanent Judge in 
B another High Court (paragraph 54 ). 
(vii) After having determined the merits of the individual claim 
raised by S.N. Kumar, J., (who was discontinued by the Central 
Government, while he was holding the position of additional 
c Judge), it was concluded, that it would be proper if the Union 
of India could find a way, to place the letter dated 7 .5.1981 
addressed by the Chief Justice of Delhi High Court to the Law 
Minister, before the Chief Justice of India, and elicit his opinion 
with reference to that letter. And thereupon consider, whether 
o S.N. Kumar, J., should be reappointed as additional Judge. ·. 
(viii) With reference to K.B.N. Singh, CJ., it was opined that 
there was a clear abdication by the Central Government of its 
constitutional functions, and therefore, his transfer from the 
E Patna High Court to the Madras High Court was held as 
unconstitutional and void. 
A.C. Gupta. J.: 
(i). On the subject of the "independence of the judiciary", it was 
opined, that the same did not mean freedom of Judges to act 
F arbitrarily. It only meant, that Judges must be free, while 
discharging their judicial functions. In
order to maintain 
"independence of the judiciary", it was felt, that Judges had to 
be protected against interference, direct or indirect. It was 
G concluded, that the constitutional provisions should not be 
construed in a manner, that would tend to undermine the 
concept of "independence of the judiciary" (paragraph 119). 
(ii) On the questio.n, whether, on the expiry of the term of office 
of an additional Judge of a High Court, it was permissible to 
H drop him by not giving him another term, though the volume of
SUPREME COURT ADVOCATES-ON-RECORD 
127 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
work, pending in the High Court, required the services of A 
another Judge? It was opined, that the tenure of an additional 
Judge, was only dependent on the arrears of work, or the 
temporary increase in the business of a High Court. And since 
an additional Judge was not on probation, his performance 
could not be considerer.I to determine, whether he was fit for 
B 
appointment as a permanent Judge. Therefore, it was 
concluded, that if the volume of work pending in the High Court 
justified the appointment of an additional Judge, there could 
be no reason, why the concerned additional Judge should not 
be appointed for another term. The submission that the two C 
years' period mentioned in Article 224, depicted the upper limit 
of the tenure, and that the President was competent to appoint 
an additional Judge, for any shorter period, was rejected. Since 
the fitness of a Judge, had been considered at the time of his 
initial appointment, therefore, while determining whether he 
D. 
should be reappointed, under Article 217(1 ), it was opined, 
that the scope of inquiry was limited, to whether the volume of 
work pending in the High Court, necessitated his continuation. 
(iii). Referring to the opinion expressed by the Chief Justice of E 
the High Court, in connection with S.N. Kumar, J., it was opined, 
that when allegations were levelled against a Judge with 
respect to the
discharge of his duties, the only reasonable 
course open, which woul.d not undermine the "independence 
of the judiciary" was,. to proceed with an inquiry into the 
F 
allegations and remove the Judge, if the allegations were found 
to be true (in accordance with the procedure laid down under 
Article 124(4) and (5) read with Article 218). It was felt that, 
dropping an additional Judge, at the end of his initial term of 
office, on the ground that there were allegations against him, 
G 
without properly ascertaining the truth of the allegations, was 
destructive of the "independence of the judiciary" (paragraph 123). 
(iv). With reference to the non-continuation of S.N. Kumar, J., 
an additional Judge of the Delhi High Court, it was observed, 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
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that the letter of the Chief Justice of the Delhi High Court dated 
7 .5.1981, addressed to the Law Minister, was not disclosed 
to the Chief Justice of India. As the relevant material was 
withheld from the Chief Justice of India, it was concluded, that 
there was no full and effective "consultation", as contemplated 
B by Article 217(1 ). And therefore, the decision not to extend 
the term of office of S.N. Kumar, J., as additional Judge of the 
Delhi High Court, though the volume of pending work in the 
High Court required the services of an additional Judge, was 
c 
invalid. 
(v). On the question, whether the opinion of the Chief Justice 
of India would have primacy, in case of a difference of opinion 
between the Chief Justice of a High Court and the Chief Justice 
of India, the view expressed was, that the President should 
D accept the opinion of the Chief Justice of India, unless such 
opinion suffered from any obvious infirmity. And that, the 
President could not act as an umpire, and choose between 
the two opinions (paragraph 134 ). 
(vi). Referring to the judgment in the Sankalchand Himatlal 
E Sheth case5, wherein it was concluded, that mass transfers 
were not contemplated under Article 222(1 ), it was opined, 
that the President could transfer a Judge from one High Court 
to another, only after consultation with the Chief Justice of India. 
F And that, the Chief Justice of India must consider in each case,
whether the proposed transferwas in public interest (paragraph 
138). 
(vii). With referencetothetransferofK.B.N. Singh, CJ., from 
the Patna High Court to the Madras High Court, it was opined, 
G that even if the above transfer had been made for 
administrative reasons, and in public interest, it was likely to 
cause some injury to the transferee, and it would only be fair to 
consider the possibility of transferring him, where he would 
face least difficulties, namely, where the language difficulty 
H would not be acute.
SUPREME COURT ADVOCATES-ON-RECORD 
129 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
S. Murtaza FazalAli. J.: 
A 
(i) On the issue, whether the transfer of a High Court Judge 
under Article 222 required the consent of the Judge proposed 
to be transferred, it was opined, that a non-consensual transfer, 
would not amount to punishment, nor would it involve any 
8 
stigma. It was accordingly concluded, that a transfer made after 
complying with Article 222, would not mar or erode the 
"independence of the judiciary" (paragraph 345). 
(ii). With reference to appointing Chief Justices of High Courts 
from outside the State, and for having 1/3rd Judges in every C 
High Court from outside the State, it was expressed, that 
Article 222 conferred an express power with the President, to 
transfer a Judge (which includes, Chief Justice) from one State 
to another. In determining as to how this power had to be 
exercised, it was felt, th~t the President undoubtedly D 
possessed an implied power to lay down the norms, the 
principles, the conditions and the circumstances, under which 
the said power was to be exercised. A declaration by the 
President regarding the nature and terms of the policy (which 
virtually meant a declaration by the Council of Ministers) was E 
quite sufficient, and absolutely legal and constitutional 
(paragraph 410). 
(iii). On the subject of validity of the letter of the Union Law 
Minister dated 18. 3.1981, it was held, that the same did not in 
F 
any
way tarnish the image of Judges, or marthe "independence 
of the judiciary" (paragraph 433). 
(iv). On the question of appointment of additional Judges, and 
the interpretation of Article 217, the opinion expressed by P.N. 
G 
Bhagwati and E.S. Venkataramiah, JJ. were adopted 
(paragraph 434 ). 
(v). Insofar as the interpretation of Article 224 was concerned, 
the opinion of P.N. Bhagwati and D.A. Desai, JJ. were 
accepted, (paragraph 537). And accordingly, their conclusion 
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[2015] 13S.C.R. 
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about the continuation of S.N. Kumar, J., as an additional 
Judge, after the expiry of his term of appointment, was 
endorsed. 
(vi). On analyzing the decision rendered in the Sankalchand 
8 
Himatlal Sheth case5, inter alia, the following necessary 
concomitants ofan effective consultation between the President 
and the Chief Justice of India were drawn. That the consultation, 
must be full and effective, and must precede the actual transfer 
of the Judge. If consultation with the Chief Justice of India had 
c not taken place, before transferring a Judge, it was held, that 
the transfer would be unconstitutional. All relevant data and 
necessary facts, must be provided to the Chief Justice of India, 
so that, he could arrive at a proper conclusion. Only afterthe 
above process was fully complied with, the consultation would 
o be considered full and effective.-H was felt, thatthe Chief Justice 
of India owed a duty, both to the President and to the Judge 
propos.ed to be transferred, to consider every relevant fact, 
before tendering his opinion to the President. Before giving 
his opinion the Chief Justice of India, could informally ascertain 
E from the Judge, if there was any personal difficulty,. or any 
humanitarian ground, on which his transfer should not be made. 
And only after having done so, the Chief Justice of India, could 
forward his opinion to the President. Applying the above facets 
of the consultation
process, with respect to the validity of the 
F order dated 19.1.1981, by which K.B.N. Singh, CJ., was 
transferred, it was held, that the consultation process 
contemplated under Article 222, had been breached, rendering 
the order passed by the President invalid (paragraph 589). 
G V.D. Tulzapurkar. J.: 
H 
(i). Insofar as the question of "independence of the judiciary" 
is concerned, it was asserted that all the Judges, who had 
expressed their opinions in the matter, had emphasized, that 
the framers of the Constitution had taken the utmost pains, to
SUPREME COURT ADVOCATES-ON-RECORD 
131 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
secure the "independence of the Judges" of the higher judiciary. 
A 
To support the above contention, several provisions of the 
Constitution were referred to. It was also pointed out, that the 
Attorn'ey General representing the Union of India, had not 
dispute the above proposition (paragraph 639). 
B 
(ii). With reference to additional Judges recruited under Article 
224(1 ), from the fraternity of practicing Advocates, it was 
pointed out, that an undertaking was taken from them at the 
time of their initial appointment, that if and when a permanent 
judgeship of that Court was offered to them, they would not c 
decline the same. And additionally, the Chief Justice of the 
Bombay High Court would require them to furnish a further 
undertaking, that if they decline to accept such permanent 
judgeship (though offered), or if they resigned from the office 
of the additional judgeship, they would not practice before the D 
Bombay High Court, or any court or tribunal subordinate to it. 
Based on the aforesaid undertakings, the contention advanced 
was, that a legitimate expectancy, and an enforceable right to 
continue in office, came to be conferred on the additional 
Judges recruited from the Bar. It was felt, that it was impossible E 
to construe Article 224(1 ), as conferring upon the appointing 
authority, any absolute power or discretion in the matter of 
appointment of additional
Judges to a High Court (paragraphs 
622 and 624 ). 
F 
(iii)All submissions made on behalf of the respondents, that 
granting extension to an additional Judge, or making him a 
permanent Judge was akin to a fresh appointment, were 
rejected. It was concluded, that extension to an additional 
Judge, or making him permanent, did not require re-
G 
determination of his suitability under Article 217(1) (paragraph 
628). 
(iv). While dealing with the question of continuation of an 
additional Judge, in situations where there were facts 
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132 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
disclosing suspected misbehaviour and/or reported lack of 
integrity, the view expressed was, that while considering the 
question of continuation of a sitting additional Judge, on the 
expiry of his initial term, the test of suitability contemplated 
within the consultative process under Article 217(1) should not 
B be evoked -
at least till a proper mechanism, having a legal 
sanction, was provided for holding an inquiry, against the Judge 
concerned, with reference to any suspected misbehavior and/ 
or lack of integrity (paragraph 628). 
C (v) On the scope of consideration, for continuation as a sitting 
additional Judge (on the expiry of a Judge's initial term), it 
was opined, that the consultative process should be confined 
only to see, whether the preconditions mentioned in Article 
224( 1 ) existed or not, or whether, pendency of work justified 
o continuation or not. It was held, that the test of suitability 
contemplated within the consultative process under Article 
217(1 ), could not and should not, be resorted to (paragraph 629). 
(vi). On the question of primacy of the Chief Justice of India, 
with reference to Article 217(1 ), the view expressed was, that 
E the scheme envisaged therein, by implication and intent, clearly 
gave primacy to the advice tendered by the Chief Justice of 
India. It was however sought to be clarified, that giving primacy 
to the advice of the Chief Justice of India, in the matter of 
F
appointment of Judges of the High Court, should not be 
construed as a power to veto any proposal. And ~hat, if the 
advice of the Chief Justice of India, had proceeded on 
extraneous or non germane considerations, the same would 
be subject to judicial review, just as the President's final 
G decision, if he were to disregard the advice of the Chief Justice 
of India, but for justified and cogent reasons. Interpreting Article 
217(1) in the above manner, it was felt, would go a long way in 
preserving the "independence of the judiciary" (paragraph 632). 
(vii) With regard to the scope of 'consultation', contemplated 
H
SUPREME COURT ADVOCATES-ON-RECORD 
133 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
under Article 222( 1 ), the conclusion(s) drawn by the majority A 
view, in the Sankalchand Himatlal Sheth case5, were endorsed. 
(viii). Insofar as, the issue of taking the consent of the concerned 
Judge, prior to his transfer is concerned, based on the decision 
rendered in the Sankalchand Himatlal Sheth case5, it was felt, 
8 
that transfers could be made without obtaining the consent of 
the concerned .Judge. And accordingly it was held, that non-
consensual transfers, were within the purview of Article 222(1) 
(paragraphs 645 and 646). 
(ix) With reference to the letter written by the Union Law Minister C 
dated 18.3.1981, it was asserted, that even a policy transfer, 
without fixing the requisite mechanism or modality of procedure, 
would not ensure complete insulation against executive 
interference. Conversely it was felt, that a selective transfer in 
an appropriate case, for strictly objective reasons, and in public D 
interest, could be non-punitive. It was therefore concluded, 
that each case of transfer, whether based on policy, or for 
individual reasons, would have to be judged on the facts and 
circumstances of its own, for deciding, whether it was punitive 
(paragraph 649). 
E 
(x) It was concluded, that by requiring a sitting additional Judge, 
to give his consent for being appointed to another High Court, 
virtually amounted to seeking his consent for his transfer
from 
his own High Court to another High Court, falling within the 
F 
ambit of Article 222(1 ). Referring to the judgment rendered in 
the Sankalchand Himatlal Sheth case5, it was felt, that the 
circular letter dated 18.3.1981 was an attempt to circumvent 
the safeguards and the stringent conditions expressed in the 
above judgment (paragraph 652). And further, that the circular G 
letter clearly exuded an odour of executive dominance and 
arrogance, intended to have coercive effects on the minds of 
sitting additional Judges, by implying a threat to them, that if 
they did not furnish their consent to be shifted elsewhere, they 
would neither be continued nor made permanent. The above 
H
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A 
letter, was held to be amounting to, executive interference with 
the "independence of the judiciary", and thus illegal, 
unconstitutional and void. Any consent obtained thereunder, 
was also held to be void (paragraph 654). 
8 
(xi) It was also concluded that, the advice of the Chief Justice 
of India. would be robbed of its real efficacy, in the face of 
such pre-obtained consent, and it would have to be regarded 
as having been issued malafide and for a collateral purpose, 
namely, to bypass Article 222(1) and to confront the Chief 
c Justice of India, with a fait accompli, and as such, the same 
was liable to be declared as illegal and unconstitutional 
(paragraph 655) .. 
(xii) The above circular letter dated 18.3.1981, was also held 
to be violative of Article 14, since invidious discrimination was 
D writ large on the face of the circular letter. For this additional 
reason, the letter of the Union Law Minister dated 18.3.1981, 
it was felt, was liable to be struck down (paragraphs 659 and 
660). 
E (xiii) On the subject of non-continuation of S.N. Kumar, J., it 
was held, that it was abundantly clear from the correspondence 
and notings, that further details and concrete facts and 
materials relating to his integrity, though specifically asked for 
by the Chief Justice of India, were not furnished, and the letter 
F dated 7.5.1981, which contained such details and concrete 
facts and materials, were kept away from him,
leading to the 
inference, that facts which were taken into consideration by 
the Union Law Minister and the Chief Justice of Delhi High 
Court (which provided the basis to the appointing authority, 
G not to extend the appointment of S.N. Kumar, J.), were not 
placed before the Chief Justice of India, and therefore, there 
was neither full nor effective consultation, between the 
President and the Chief Justice of India, as required by Article. 
217(1 ). It was accordingly concluded, that the decision against 
H
SUPREME COURT ADVOCATES-ON-RECORD 
135 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
S.N. Kumar, J., stood vitiated by legal ma/a tides, and as such, 
A 
was liable to be held void and non est, and his case had to be 
sent back to the President, for reconsideration and passing 
appropriate orders, after the requisite consultation was 
undertaken afresh (paragraphs 664 and 666 to 668). 
B 
(xiv) With respect to the validity of the transfer of K.B.N. Singh, 
CJ., it was felt, that in the absence of any connivance or 
complicity, since no unfair play was involved in the procedure 
followed by the Chief Justice of India, it was liable to be 
concluded, that the impugned transfer had been made in public c 
interest. and not by way of punishment. The above transfer 
was accordingly held to be valid (paragraph 680). 
D.A. Desai. J.: 
(i) After noticing, that the President under Article 74, acts on 
D 
the advice of the Council of Ministers, and that, while acting 
under Article 217(3), the President performs functions of grave 
importance. It was felt, that it could not be said that while 
exercising the power of appointment of Judges to the higher 
judiciary, the President was performing either judicial or quasi E 
judicial functions. The function of appointment of Judges was 
declared as an executive function, and as such, it was held, 
that Article 74 would come into operation. And therefore 
concluded, that the President would have to act, on the advice 
of the Council of
Ministers, ·in the matter of appointment of F 
Judges under Article 217 (paragraph 715). And therefore it 
came to be held, that the ultimate power of appointment under 
Article 217, "unquestionably" rested with the President. 
(ii) It was pointed out, that before exercising the power of G 
appointment of a Judge (other than the Chief Justice of a High 
Court), the President was under a constitutional obligation, to 
consult the three constitutional functionaries, mentioned in 
Article 217 (paragraphs 718 and 719). And that the 
aforementioned three constitutional functionaries were at par H
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A 
with one another. They were coordinate authorities, without 
any relative l:iierarchy, and as such, the opinion of the Chief 
Justice of India could not be given primacy on the issue of 
appointment of Judges of High Courts (paragraphs 724, 726 
and 728). 
B (iii) It was also concluded, that on the expiry of the original 
term of appointment of an additional Judge under Article 224, 
the continuation of the concerned Judge, would envisage the 
re-adoption of the procedure contained in Article 217 
c (paragraphs 736 and 745). 
(iv) It was felt, that there was no gainsaying, that a practice 
which had been followed for over 25 years, namely, that an 
additional Judge was always considered for a fresh tenure, if 
there was no permanent vacancy, and if there was such a 
D vacancy, he was considered for appointment as a permanent 
Judge. It was held, that the contention of the Attorney General, 
that such additional Judge had no priority, preference, 
weightage or right to be considered, and that, he was on par 
with any other person, who could be brought from the market, 
E would amount to disregarding the constitutional scheme, and 
must be rejected (paragraph 759). It was held, that when a 
Judge was appointed for a term of two years, as an additional 
Judge, it was sufficient to contemplate, that his appointment 
F was not as a permanent Judge. And therefore, if a permanent 
vacancy arose, the additional Judge could not enforce
his 
appointment against the permanent vacancy (paragraph 762). 
(v) It was also concluded, that the term of an additional Judge 
could not be extended for three months or six months, since 
G such short term appointments, were wholly inconsistent and 
contrary to the clear intendment of Article 224, and also, 
unbecoming of the dignity of a High Court Judge (paragraphs 
763 and 764 ). 
H (vi) On the subject of extension of the term of an additional
• 
SUPREME COURT ADVOCATES-ON-RECORD . 
137 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Judge, it was felt, that it was not open to the constitutional 
A 
functionaries, to sit tight over a proposal, without expressing 
their opinion on the merits of the proposal, and by sheer 
inaction, to kill a proposal. It was accordingly opined, that when 
the term of an additional Judge was about to expire, it was 
obligatory on the Chief Justice of the High Court, to initiate the B 
proposal for completing the process of consultation, before 
the period of initial appointment expired (paragraph 772). 
(vii) With reference to the non-extension of the tenure of S.N. 
Kumar, J., it was felt, that when two high constitutional c 
functionaries, namely, the Chief Justice of the Delhi High Court 
and the Chief Justice of India, had met with a specific reference 
to his doubtful integrity, the act of not showing the letter dated 
7.5.1981 to the Chief Justice of India, would not detract from 
the fullness of the consultation, as required by Article 217. 
D 
Accordingly, it was held, that there was a full and effective 
consultation, on all relevant points, including those set out in 
the letter dated 7 .5.1981. And the claim of the concerned Judge 
for continuation, was liable to be rejected. It was however 
suggested, that the Government of India could even now, show E 
the letter dated 7.5.1981 to the Chief Justice of India, and 
request him to give his comments. After receiving his
comments, the Government of India could decide afresh, 
whether S.N. Kumar, J., should be re-appointed as an 
additional Judge of the Delhi High Court. It was however 
F 
clarified, that the proposed reconsideration, should not be 
treated as a direction, but a mere suggestion. 
(viii) On the question, whether the consent of the concerned 
Judge should be obtained prior to his transfer under Article G 
222(1 ), it was concluded, that the requirement of seeking a 
prior consent, as a prerequisite for exercising the power of 
transfer under Article 222(1 ), deserved to be rejected 
(paragraph 813 ). It was however observed, that the above 
power of transfer under Article 222(1) could not be exercised 
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A 
in the absence of public interest, merely on the basis of whim, 
caprice or fancy of the executive, or its desire to bend a Judge 
to its own way of thinking. Three safeguards, namely, full and 
effective consultation with the Chief Justice of India, the 
exercise of power only aimed at public interest, and judicial 
B 
review -
in case the power was exercised contrary to the 
mandate of law, were suggested to insulate the "independence 
of the judiciary", against an attempt by the executive to control 
it (paragraphs 813 to 815). 
c (ix) It was also concluded, that the transfer of an individual 
Judge, for something improper in his behavior, or conduct, 
would certainly cast a slur or attach a stigma, and would leave 
an indelible mark on his character. Even the High Court to 
which he was transferred would shun him, and the consumers 
o of justice would have little or no faith in his judicial integrity. 
Accordingly it was concluded, that a transfer on account of 
any complaint or grievance against a Judge, referable to his 
conduct or behaviour, was impermissible under Article 222(1 ). 
(x) On the question of transfer of K.B.N. Singh, CJ., it was felt, 
E that his order of transfer was vitiated for want of effective 
consultation, and his selective transfer would cast a slur or 
stigma on him. ·it was felt, that the transfer did not appear to 
be in public interest. The order of transfer dated 20.12.1980 
F was accordingly,
considered to be vitiated, and as such, was 
declared void. 
R.S. Pathak, J. las he then 'f'as): 
(i} With reference to the issue of "independence of the judiciary", 
it was observed, that while the administration of justice drew 
G its legal sanction from the Constitution, its credibility rested in 
the faith of the people. Indispensable to such faith, was the 
"independence of the judiciary". An independent and impartial 
judiciary, it was felt, gives character and content to the 
H constitutional milieu (paragraph 874).
SUPREME COURT ADVOCATES-ON-RECORD 
139 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(ii) On the subject of appointment of Judges to High Courts, it A 
was essential for the President, to consult the Governor of the 
State, the Chief Justice of India and the Chief Justice of the 
concerned High Court. It was pointed out, that three distinct 
constitutional functionaries were involved in the consultative 
process, and each had a distinct role to play (paragraph 887). 
B 
In a case where the Chief Justice of the High Court and the 
Chief Justice of India, were agreed on a recommendation, it 
was within reason to hold. that the President would ordinarily 
accept the recommendation, unless there were strong and 
cogent reasons, for not doing so (paragraph 889). It was C 
however pointed out, that the President was not always obliged 
to agree, with a recommendation, wherein the Chief Justice 
of the High Court and the Chief Justice of India, had concurred. 
In this behalf, it was observed, that even though, during the 
D 
Constituent Assembly debates, a proposal was made, that the 
appointment of a Judge should require the "concurrence" of 
the Chief Justice of India, and the above proposal was 
endorsed by the Law Commission of India, yet the proposal 
had fallen through, and as such, the Constitution as it presently 
E 
exists, contemplated "consultation" and not "concurrence" 
(paragraph 890). 
(iii) On the question, as to whether the Chief Justice of India 
had primacy,
over the recommendation made by the Chief 
Justice of the High Court, it was felt, that the Chief Justice of F 
India did not sit in appellate judgment, over the advice tendered 
by the Chief Justice of the High Court. It was pointed out, that 
the advice tendered by the Chief Justice of India, emerged 
after taking into account, not only the primary material before 
him, but also, the assessment made by the Chief Justice of G 
the High Court. And therefore, when he rendered his advice, 
the assessment of the Chief Justice of the High Court, must 
be deemed to have been considered by him. It was pointed 
out, that from the constitutional scheme, it appeared, that in 
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(2015] 13 S.C.R. 
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matters concerning the High Courts, there was a dose 
consultative relationship, between the President and the Chief 
Justice of India. In that capacity, the Chief Justice of India 
functioned, as a constitutional check, on the exercise of 
arbitrary power, and was the protector of the "independence 
B of the judiciary" (paragraph.891 ). 
(iv) On the subject of appointment of Judges to the High Courts, 
it was concluded, that the appointment of an additional Judge, 
like the appointment of a permanent Judge, must be made in 
c the manner prescribed in Article 217(1 ). Accordingly, it was 
felt, that there was no reason to suspect, that a person found 
fit for appointment as an addition~! Judge, and had already 
gained proficiency and experience, would not be appointed 
as a Judge for a further period, in order that the work may be 
o disposed of (paragraph 893). 
(v) It was also opined, that the judiciary by judicial verdict, could 
not decide, how many permanent Judges were required for a 
High Court. And if a Court was not competent to do that, it 
could not issue a direction to the Government, that additional 
E Judges should be appointed as permanent Judges (paragraph 
895). Accordingly it was felt, that there was no doubt whatever, 
that the provision of Article 217(1) would come into play, when 
an additional Judge was to be considered for further 
F 
appointment as an additional Judge, or was to be considered 
for
appointment as a permanent Judge (paragraph 897). 
(vi) With reference to the non-continuation of S.N. Kumar, J., it 
was pointed out, that the allegations contained in the letter 
dated 7 .5.1981 strongly influenced the decision of the 
G Government. Since the aforesaid letter was not brought to the 
notice of the Chief Justice of India, it was inevitable to conclude, 
that the process of consultation with the Chief Justice of India 
was not full and effective, and the withholding of important and 
relevant material from the Chief Justice of India, vitiated the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
141 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
process. It was accordingly held, that the non-continuation of A 
theterm of S.N. Kumar, J., was in violation of the mandatory 
constitutional requirements contained in Article 217 (1 ). It was 
felt, that the issue pertaining to the continuation of S.N. Kumar, 
J., needed to be reconsidered, and a decision needed to be 
taken, only after full and effective consultation (paragraph 904). 
B 
(vii) On the issue of transfer of Judges under Article 222(1 ), it 
was concluded, that the consent of the concerned Judge was 
not one of the mandated requirements (paragraph 913). It 
was pointed out, that the transfer of a Judge, could be made c 
only in public interest, and that no Judge could be transferred, 
on the ground of misbehaviour or incapacity. The question of 
invoking Article 222(1 ), for purposes of punishing a Judge, 
was clearly ruled out (paragraphs 917 and 918). It was clarified, 
that the Judge proposed to be transferred, did not have a right o 
of hearing. And that, the scope and degree of inquiry by the 
Chief Justice of India, fell within his exclusive discretion. All 
that was necessary was, that the Judge should know why his 
transfer was proposed, so that he would be able to acquaint 
the Chief Justice of India, why he should not be so transferred. 
E 
It was further clarified, that the process of consultation 
envisaged under Article 222(1) required, that all the material
in possession of the President must be placed before the Chief 
Justice of India (paragraph 919). 
F 
(viii) I! was held that, it was open to the Judge, who was 
subjected to transfer, to seek judicial review, by contesting his 
transfer on the ground that it violated Article 222( 1) (paragraph 
920). 
(ix) It was also felt, that the power to transfer a Judge from one G 
High Court to another, could constitute a threat, to the sense of 
independence and impartiality of the Judge, and accordingly, 
it was held, thatthe said power should be exercised sparingly, 
and only for very strong reasons (paragraph 921 ). 
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[2015] 13 S.C.R. 
A 
(x) On the validity of the transfer of K.B.N. Singh, CJ., it was 
concluded, that the considerations on which the transfer had 
been made, could be regarded as falling within the expression 
"public interest", and therefore, the order of transfer did not 
violate Article 222(1 ). 
B (xi) Insofar as the validity of the letter of the Union Law Minister 
dated 18.3.1981 is concerned, it was observed, that neither 
the proposal nor the consent given thereto, had any legal status. 
In the above view, it was held, that the circular letter could not 
C be acted upon, and any consent given pursuant thereto, was 
not binding. 
E.S. Venkataramiah. J. (as he then was): 
(i) With reference to the "independence of the judiciary", it was 
0 
opined, that the same was one of the central values on which 
the Constitution was based. It was pointed out, that in all 
countries, where the rule of law prevailed, and the power to 
adjudicate upon disputes between a man and a man, and a 
man and the State, and a State and another State, and a State 
E and the Centre, was entrusted to a judicial body, it was natural 
that such body should be assigned a status, free from capricious 
or whimsical interference from outside; so that it could act, 
without fear and in consonance with judicial conscience 
(paragraph 1068). 
F 
(ii) Referring to Article 217(1) it was asserted, that each of the 
three functionaries mentioned therein, had to be consulted
before a Judge of a High Court could be appointed. It was 
pointed out, that each of the consultees, had a distinct and 
G separate role to play. Given the distinct roles assigned to them, 
which may to some extent be overlapping, it could not be said, 
that the Chief Justice of India occupied a position of primacy, 
amongst the three consultees (paragraph 1019). 
(iii) The power of appointment of a Judge of a High Court was 
H considered to be an executive power (paragraph 1023).
SUPREME COURT ADVOCATES-ON-RECORD 
143 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Accordingly, while making an appointment of a High Court A 
Judge, the President was bound to act, on the advice of his 
Council of Ministers, and at the same time, giving due regard 
to the opinions expressed by those who were required to be 
consulted under Article 217(1 ). Despite the above, it was felt,· 
that there was no scope for holding, that either the Council of B 
Ministers could not advise the President, or the opinion of the 
Chief Justice of India was binding on the President. Although, 
it was felt, that such opinion should be given due respect and 
regard (paragraph 1032). It was held, that the above method 
was intrinsic in the matter of appointment of Judges, as in that C 
way, Judges may be called people's Judges. If the 
appointments of Judges were to be made on the basis of the 
recommendations of Judges only, then they will be Judges' 
Judges, and such appointment~ may not fit into the scheme of D 
popular democracy (paragraph 1042). 
(iv) It was held, that the Constitution did not prescribe different 
modes of appointment for permanent Judges, additional 
Judges, or acting Judges. All of them were required to be 
appointed by the same process, namely, in the manner E 
contemplated under Article 217(1) (paragraph 1061). The 
appointment of almost all High Court Judges initially as 
additional Judges under Article 224(1 ), and later on as 
permanent Judges under
Article 217 ( 1 ), was not conducive to 
the independence of judiciary (paragraph 1067). It was held, 
F 
that the Constitution did not confer any right upon an additional 
Judge, to claim as of right, that he should be appointed again, 
either as a permanent Judge, or as an additional Judge. 
Accordingly, it was held, that there was no such enforceable 
right (paragraph 107 4 ). 
G 
(v) Despite the above, it was observed, that in the absence of 
cogent reasons for not appointing an additional Judge, the 
appointment of somebody else in his place, would be an 
unreasonable and a perverse act, which would entitle the 
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A 
additional Judge, to move a Court for appropriate relief, in the 
peculiar circumstances (paragraph 1086). It was held, that 
having regard to the high office, to which the appointment was 
made, and the association of high dignitaries, who had to be 
consulted before any such appointment was made, the 
B application of principles of natural justice, as of right, was ruled 
out (paragraph 1087). 
(vi) With reference to Article 222, it was opined, that the consent 
of the Judge being transferred, was not a prerequisite before 
c passing an order of transfer (paragraphs 1097 and 1099). It 
was held, that the transfer of a Judge of a High Court to another 
High Court, could not be construed as a fresh appointment, in 
the High Court to which the Judge was transferred. An order 
of transfer made under Article 222, it was held, was liable to 
o be struck down by a Court, if"it could be shown, that it had 
been made for an extraneous reason, i.e., on a ground falling 
outside the scope of Article 222. Under Article 222, a Judge 
could be transferred, when the transfer served public interest. 
It was held, that the President had·no power to transfer a High 
E Court Judge, for reasons not bearing on public interest, or 
arising out of whim, caprice or fancy of the executive, or 
because of the executive desire to bend a Judge to its own 
way of thinking (paragraphs 1097, 1099 and 1132). 
F 
(vii) It was held, that Article 222 cannot
be resorted to on the 
ground of alleged misbehaviour or incapacity of a Judge 
(paragraph 1139). 
(viii) Based on the opinion expressed by several expert bodies, 
it was opined, that any transfer of a Judge of a High Court 
G under Article 222, in order to implement the policy of appointing 
Chief Justice of every High Court from outside the concerned 
State, and of having at least 1/3rd of Judges of every High 
Court from outside the State, would not be unconstitutional 
(paragraph 1164 ). 
H
SUPREME COURT ADVOCATES-ON-RECORD 
145 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(ix) The letter of the Union Minister of Law dated 18.3.1981, A 
was found to be valid. All contentions raised against the validity 
thereof were rejected (paragraph 1239). 
(x) The decision of the President not to issue a fresh order of 
appointment to S.N. Kumar, J., on the expiry of his term as an 
B 
additional Judge of the Delhi High Court, was held to be justified 
(paragraph 1128 ). 
(xi) The transfer of K.B.N. Singh, CJ., was held to have been 
made strictly in consonance with the procedure indicated in 
the Sankalchand Himatlal Sheth case5• It was accordingly C 
concluded, that there was no ground to hold, that the above 
transfer was not considered by the Chief Justice of India, in a 
fair and reasonable way. On the facts and circumstances of 
the case, it was concluded that it was not possible to hold that 
the above transfer was either illegal or void (paragraphs 1252 D 
and 1257). 
The Second Judges Case· (1993)'4 SCC 441: 
17. For the purpose of adjudication of the present issue, 
namely, whether the judgment rendered by this Court in the 
E 
Second Judges case needs to be re-examined, it is not 
necessary to delineate the views expressed by the individual 
Judges, as the conclusions drawn by them are per se not 
subject matter of challenge. The limited challenge being, that 
vital aspects of the matter, which needed to have been 
F 
considered were not canvassed, and
therefore, could not be 
taken into consideration in the process of decision making. In 
the above perspective, we consider it just and proper to extract 
hereunder, only the conclusions drawn by the majority view: 
G 
"(1) The process of appointment of Judges to the 
Supreme Court and the High Courts is an integrated 
'participatory consultative process' forselecting the best 
and most suitable persons available for appointment; 
and all the constitutional functionaries must perform this 
H
146 
A 
B 
c 
.,. 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
duty collectively with a view primarily to reach an agreed 
decision, subserving the constitutional purpose, so that 
the occasion of primacy does not arise. 
(2) Initiation of the proposal for appoint_ment in the case 
of the Supreme Court must be by the Chief Justice of 
India, and in the case of a .High Court by the Chief 
Justice of that High Court; and for transfer of a Judge/ 
Chief Justice of a High Court, the proposal has to be 
initiated by the Chief Justice of India. This is the manner 
in which proposals for appointments to the Supreme 
Court and the High Courts as well as forthe transfers of 
Judges/Chief Justices of the High Courts must invariably 
be made. 
(3) In the event of conflicting opinions by the constitutional 
functionaries, the opinion of the judiciary 'symbolised 
by the view of the Chief Justice of India', and formed in 
the manner indicated, has primacy. 
(4) No appointment of any Judge to the Supreme Court 
or any High Court can be made, unless it is in conformity 
with the opinion of the Chief Justice of India. 
(5) In exceptional cases alone, for stated strong cogent 
reasons, disclosed to the Chief Justice of India, 
indicating that the recommendee is not suitable for 
appointment, that appointment recommended by the 
Chief Justice of India may not be made. However, if the 
stated reasons are not accept~d by the Chief Justice 
of India and the other Judges of the Supreme
Court who 
have been consulted in the matter, on reiteration of the 
recommendation by the Chief Justice of India, the 
appointment should be made as a healthy convention. 
(6)Appointment to the office of the Chief Justice of India 
should be of the ~eniormost Judge of the Supreme Court 
considered fit to hold the office.
SUPREME COURT ADVOCATES-ON-RECORD 
147 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR. J.] 
(7) The opinion of the Chief Justice of India has not mere A 
primacy, but is determinative in the matter of transfers 
of High Court judges/Chief Justices. 
(8) Consent of the transferred Judge/Chief Justice is 
not required for either the first of any subsequent transfer 
from one High Court to another. 
B 
(9) Any transfer made on the recommendation of the 
Chief Justice of India is not to be deemed to be punitive, 
and such transfer is not justiciable on any ground. 
( 10) In making all appointments and transfers, the norms c 
indicated must be followed. However, the same do not 
confer any justiciable right in any one. 
( 11) Only limited judicial review on the grounds specified 
earlier is available in matters of appointments and 
transfers. 
D 
(12) The initial appointment of Judge can be made to a 
High Court other than that for which the proposal was 
initiated. 
(13) Fixation of Judge-strength in the High Courts is E 
justiciable, but only to the extent and in the manner 
indicated. 
(14) The majority opinion in S.P. Gupta v. Union of India 
(1982) 2 SCR 365: AIR 1982 SC 149, in so far as it 
takes the contrary view relating to primacy of the role of F 
the Chief Justice of India in matters of appointments 
and transfers, and the justiciability of these matters as 
well as in relation to Judge-strength, does not commend 
itself to us as being the correct view. The relevant
provisions of the Constitution, including the constitutional G . 
scheme must now be construed, understood and 
implemented in the manner indicated herein by us." 
The Third Judges case· (1998) 7 SCC 739: 
18. For exactly the same reasons as have been noticed 
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148 
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[2015] 13 S.C.R. 
A 
with reference to the Second Judges case, it is"not necessary 
to dwell into the unanimous view expressed in the Third Judges 
case. The concession of the ~ttorney General for India, as' 
was expressly recorded in paragraph 11 of the Third Judges 
case, needs to be extracted to highlight the fact, that the then 
B 
Attorney General had conceded, that the opinion recorded by 
the majority in the Second Judges case, had been accepted 
by the Union of India and, as such, would be binding on it. 
Paragraph 11 is accordingly reproduced hereunder: 
c 
D 
E 
F 
G 
"11. We record at the outset the statements of the Attorney 
General that (1) the Union of India is not seeking a review 
or reconsideration of the judgment in the Second Judges 
case (1993) 4 sec 441 and that (2) the Union of India shall 
accept and treat as binding the answers of this Court to 
the questions set out in the Reference." 
19. It is likewise necessary to extract herein, only the 
final summary of conclusions expressed in the Third Judges 
case, which are placed below: 
"1. The expression "consultation with the Chief justice of 
India" in Articles 217(1) of the Constitution of India requires 
consultation with a plurality of Judges in the formation of 
the opinion of the Chief Justice of India. The sole, individual 
opinion of the Chief Justice of Indian does not constitute· 
"consultation" within the meaning of the said Articles. 
2. The transfer of puisne
Judges is judicially reviewable 
only to this extent: that the recommendation that has been 
made by the Chief Justice of India in this behalf has not 
been made in consultation with the four seniormost puisne 
Judges of the Supreme Court and/or that the views of the 
Chief Justice of the High Court from which the transfer is 
to be effected and of the Chief Justice of the High Court to 
which the transfer is to be effected have not been obtained. 
3. The Chief Justice of India must make a recommendation 
H 
to appoint a Judge of the Supreme Court and to transfer a
SUPREME COURT ADVOCATES-ON-RECORD 
149 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Chief Justice or puisne Judge of a High Court in consultation 
A 
with the four seniormost puisne Judges of the Supreme 
Court. Insofar as an appointment to the High Court is 
concerned, the recommendation must be made in 
consultation with two seniormost puisne Judges of the 
Supreme Court. 
B 
4. The Chief Justice of India is not entitled to act solely in 
his individual capacity, without consultation with other 
Judges of the Supreme Court, in respect of materials and 
information conveyed by the Government of India for non-
C 
appointment of a judge recommended for appointment. 
5. The requirement of consultation by the Chief Justice of 
India with his colleagues who are likely to be conversant 
with the affairs of the concerned High Court does not refer 
only to those Judges who have that High Court as a parent o 
High Court. It does not exclude Judges who have occupied 
the office of a Judge or Chief Justice of that High Court on 
·transfer. 
6. "Strong cogent reasons" do not have to be recorded as 
justification for a departure from the order of seniority, in 
E 
respect of each senior Judge who has been passed over. 
What has to be recorded is the positive reason for the 
recommendation. 
7. The views of the Judges consulted should be in writing 
F 
and should be conveyed to the Government of India by the 
Chief Justice of India along with his views to the extent set 
out in the
body of this opinion. 
8. The Chief Justice of India is obliged to comply with the 
norms and the requirement of the consultation process, 
G 
as aforestated, in making his recommendations to the 
Government of India. 
9. Recommendations made by the Chief Justice of India 
without complying with the norms and requirements of the 
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A 
consultation process, as aforestated, are not binding upon 
the Government of India." 
Ill. MOTION BY THE RESPONDENTS. FOR THE REVIEW 
OF THE SECOND AND THIRD JUDGES CASES: 
s 
20. It was the contention of the learned Attorney General, 
that in the submissions advanced at the hands of the learned 
counsel representing the petitioners, for adjudication of the 
merits of the controversy, emphatic reliance had been placed 
on the judgments rendered by this Court in the Second and 
C Third Judges cases. It was the contention of the learned 
Attorney General, that the conclusions drawn in the above 
judgments, needed a reconsideration by way of a fresh scrutiny, 
to determine, whether the conclusions recorded therein, could 
withstand the original provisions of the Constitution, viewed in 
D the background of the debates in the ConstituentAssembly. 
21. In order to record the facts truthfully, it was 
emphasized, that the submissions advanced by him, could not 
be canvassed on behalf of the Union of India as in the Third 
E 
Judges q:ise, the Union had consciously accepted as binding 
the judgment rendered in the Second Judges case. 
Despite the above, the Attorney General was emphatic, 
that the Union of India could not be debarred from seeking 
reconsideration of the judgment rendered by this Court in the 
F 
Second Judges case. In order to dissuade the learned Attorney 
General from the course he insisted to pursue, it was
suggested, that the determination by this Court in the Second 
Judges case would not prejudice the claim of the Union of India, 
if the Union could establish, that the "basic structure" of the 
G Constitution, namely, the "independence of the judiciary" would 
not stand compromised by the Constitution (99th Amendment) 
Act. Despite the instant suggestion, the Attorney General 
pleaded, that he be allowed to establish, that the determination 
H rendered by the nine-Judge Bench in the Second Judges case,
SUPREME COURT ADVOCATES-ON-RECORD 
151 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
was not sustainable in law. At his insistence, we allowed him 
A 
to advance his submissions. Needless to mention, that ifthe 
Attorney General was successful in persuading us, that the 
said judgment did not prima facie lay down the correct legal/ 
constitutional position, the matter would have to be examined 
by a Constitution Bench, with a strength of nine or more Judges B 
of this Court, only if, we would additionally uphold the challenge 
to the impugned constitutional amendment, and strike down 
the same, failing which the new regime would replace the 
erstwhile system. 
22. First and foremost, our attention was drawn to Article 
124 of the Constitution, as it existed, prior to the present 
amendment. It was submitted that Article 124 contemplated, 
that the Supreme Court would comprise of the Chief Justice 
c 
of India, and not more than seven other Judges (unless, the 
D 
Parliament by law, prescribed a larger number). It was 
submitted, that clause (2) of Article 124 vested the power of 
appoin.tment of Judges of the Supreme Court, with the 
President. The proviso under Article 124(2) postulated a 
mandatory "consultation" with the Chief Justice of India. 
E 
Appointments contemplated under Article_ 124, also required 
a non-mandatory "con~ultation" with such other Judges of the 
Supreme Court and High Courts, as the President may deem 
necessary. It was accordingly submitted,
that the consultation 
contemplated under Article 124(2), at the hands of the 
F 
President was wide enough to include, not only the collegium 
of Judges, in terms of the judgment rendered by this Court in 
the Second Judges case, but each and every single Judge on 
the strength of the Supreme Court, and also the Judges of the 
High Courts of the States, as the President may choose to G 
consult. It was submitted, that only a limited role assigned to 
the Chief Justice of India, had been altered by the judgment in 
the Second Judges case, into an all pervasive decision taken 
by the Chief Justice of India, in consultation with a collegium of H
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Judges. It was pointed out, that the term "consultation" 
expressed in Article 124 with reference to the Chief Justice of 
India, had been interpreted to mean "concurrence". And 
accordingly, the President has been held to be bound, by the 
recommendation made to him, by the Chief Justice of India 
B and his collegium of Judges. It was contended, that the above 
determination, was wholly extraneous to the plain reading of 
the language engaged in Article 124 (in its original format). It 
was asserted, that there was never any question of 
"concurrence", as Article 124 merely contemplated 
C "consultation". It was contended, that the aboire "consultation" 
had been made mandatory and binding, on the President even 
in a situation where, the opinion expressed by the Chief Justice 
and the collegium of Judges, was not acceptable. to the 
0 
President. It was asserted, that it was not understandable, 
how this addition came to be made to the plain and simple 
language engaged in framing Article 124. It was submitted, 
that once primacy is given to the Chief Justice of India (i.e., to 
the collegium of Judges, contemplated under the Second and 
E Third Judges cases), then there was an implied exclusion of 
"consultation", with the other Judges of the Supreme Court, 
and also, with the Judges of the High Courts, even though, 
there was an express provision, empowering the President to 
make up his mind, after consulting the other
Judges of the 
F Supreme Court and the Judges of the High Courts, as he may choose. 
23. The Attorney General further contended, that the 
interpretation placed on Article 124 in the Second Judges 
case, was an absolutely unsustainable interpretation, specially 
when examined, with reference to the following illustration. That 
G even if all the Judges of the Supreme Court, recommend a 
name, to which the Chief Justice of India alone, was not 
agreeable, the said recommendee could not be appointed as 
a Judge. This illustration, it was submitted, placed absolute 
H power in the hands of one person - the Chief Justice of India.
SUPREME COURT ADVOCATES-ON-RECORD 
153 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
24. The learned Attorney General, then invited the Court's A 
attention to Article 125, so as to contend, thatthe salary payable 
to the Judges of the Supreme Court has to be determined by 
the Parliament by law, and until such determination was made, 
the emoluments payable to a Judge would be such, as were 
specified in the Second Schedule. It was submitted, that the 
B 
Parliament was given an express role to determine even the 
salary of Judges, which is a condition of service of the Judges 
of the Supreme Court. He also pointed to Article 126, which 
contemplates, the appointment of one of the Judges of the 
Supreme Court, to discharge the functions of Chief Justice of C 
India, on account of his absence or otherwise, or when the 
Chief Justice of India, was unable to perform the duties of his 
office. The Court's attention was also drawn to Article 127, to 
point out, that in a situation where the available Judges of the D 
• Supreme Court, could not·satisfy the quorum of the Bench, 
required to adjudicate upon a controversy, the Chief Justice of 
India could continue the proceedings of the case, by including 
therein, a Judge of a High Court (who was qualified for 
appointment as a Judge of the Supreme Court), in order to 
E 
make up the quorum, with the previous consent of the President 
of India. It was submitted, that the role of the President of India 
was manifestly
inter-twined with administration of justice, by 
allowing the President to appoint a Judge of the High Court, 
as a Judge of the Supreme Court on 'ad hoc'basis. Reference 
F 
was then made to Article 128, whereby the Chief Justice of 
India, with the previous approval of the President, could require 
a retired Judge of the Supreme Court, or a person who has 
held office as a Judge of a High Court, and was duly qualified 
for appointment as a Judge of the Supreme Court, to sit and 
G 
act as a Judge of the Supreme Court. It was pointed out, that 
this was yet another instance, where the President's noticeable 
role in the functioning of the higher judiciary, was contemplated 
by the Constitution itself. The Court's attention was then drawn 
to Article 130, whereunder, even though the seat of the 
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Supreme Court was to be at Delhi, it could be moved to any 
other place in India, if so desired by the Chief Justice of India, 
with the approval of the President. Yet again, depicting the 
active role assigned to the President, in the functioning of the 
higher judiciary. Likewise, the Court's attention was invited to 
B Articles 133 and 134, providing for an appellate remedy in 
civil and criminal matters respectively, to the Supreme Court, 
leaving it open to the Parliament to vary the scope of the Courts' 
appellate jurisdiction. Insofar as Article 137 is concerned, it 
was pointed out, that the power of review of the judgments or 
C orders passed by the Supreme Court, was subject to the 
provisions of any law made by the Parliament, or any rules 
that may be made under Article 145. With reference to Article 
138, it was contended, that the jurisdiction of the Supreme 
0 
Court, could be extended to matters falling in the Union List, 
as the Parliament may choose to confer. Similar reference 
was made to clause (2) of Article 138, wherein further 
jurisdiction could be entrusted to the Supreme Court, when 
agreed to, by the Government of India and by any State 
E 
Government, if the Parliament by law so provides. Based on 
the above, it was contended, that Article 138 was yet another 
provision, which indicated a participatory role of the 
Parliament, in the activities of the Supreme Court. Likewise, 
this Court's
attention was drawn to Article 139, whereby the 
F 
Parliament could confer, by law, the power to issue directions, 
orders or writs, in addition to the framework demarcated 
through Article 32(2). This, according to the learned Attorney 
General, indicated another participatory role of the Parliament 
in the activities of the Supreme Court. Pointing to Article 140, 
G it was submitted, that the Parliament could by law confer upon 
the Supreme Court supplemental powers, in addition to the 
powers vested with it by the Constitution, as may appear to 
the Parliament to be necessary br desirable, to enable the 
Supreme Court to exercise its jurisdiction more effectively. It 
H was submitted, that one Article after the other, including Article
SUPREME COURT ADVOCATES-ON-RECORD 
155 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
140, indicated a collective and participatory role of the A 
President and the Parliament, in the activities of the Supreme 
Court. Having read out Article 142(2), it was asserted, that 
even on the subject of securing the attendance of any person, 
and the discovery or production of any documents, or the 
investigation or punishment of any contempt of itself, the 
B 
jurisdiction of the Supreme Court was subject to the law made 
by the Parliament. The learned Attorney General, also referred 
to Article 145, whereunder, it was open to the Parliament to 
enact law framed by the Parliament, for regulating generally 
the practice and procedure of the Supreme Court. In the C 
absence of any such law, the Supreme Court had the liberty to 
make rules for regulating the practice and procedure of the 
Court, with the approval of the President. It was submitted, 
that even on elementary issues like procedure, the Parliament 
and/or the President were assigned a role by the Constitution, D 
in activities strictly in the judicial domain. With reference to 
the activities of the Supreme Court, the Court's attention was 
also drawn to Article 146, which envisages that appointments 
of officers and servants of the Supreme Court, were to be 
E 
made by the Chief Justice of India. It was pointed out, that the 
authority conferred under Article 146, was subservient to the 
right of the President, to
frame rules requiring future 
appointments to any office connected to the Supreme Court, 
to be made, only in consultation with the Union Pubic Service 
F 
Commission. The aforesaid right of appointing officers and 
servants to the Supreme Court, is also clearly subservient to 
the right of the Parliament, to make provisions by enacting law 
on the above subject. In the absence of a legislation, at the 
hands of the Parliament, the conditions of service of officers G 
and servants of the Supreme Court would be such, as may be 
prescribed by rules framed, by the Chief Justice of India. The 
rules framed by the Chief Justice, are subject to the approval 
by the President, with reference to salaries, allowances, leave 
and pension. 
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25. With reference to the appointments made to the High 
Courts, the Court's attention was invited to Article 217, 
whereunder, the authority of appointing a Judge to a High Court 
was vested with the President. The President alone, was 
authorized to make such appointments, after "consultation" with 
B the Chief Justice of India, the Governor of the State, and the 
Chief Justice of the concerned High Court. The Court's 
attention was also drawn to Article 221, whereunder, the power 
to determine the salary payable to a Judge, was to be 
determined by law to be enacted by the Parliament. Till any 
C such law was framed by the Parliament, High Court Judges 
would be entitled to such salaries, as were specified in the 
Second Schedule. The allowances payable to Judges of the 
High Court, as also, the right in respect of leave of absence 
0 
and pension, were also left to the wisdom of Parliament, to be 
determined by law. And until such determination, Judges of 
the High Courts were entitled to allowances and rights, as were 
indicated in the Second Schedule. The Court's attention was 
also drawn to Article 222, wherein, the President was 
E authorized, after "consulting" the Chief Justice of India, to 
transfer a Judge from one High Court to another. Inviting the 
Court's attention to the provisions referred to in the foregoing 
two paragraphs contained in Part V, Chapter IV - The Union 
Judiciary, and Part VI, Chapter V - The
High Courts in the 
F 
States, it was asserted, that the role of the President, and also, 
that of the Parliament was thoughtfully interwoven in various 
· salient aspects, pertaining to the higher judiciary. Exclusion of 
the executive and the legislature, in the manner expressed 
through the Second Judges case, in the matter of appointment 
G of Judges to the higher judiciary, as also, transfer of Judges 
and Chief Justices of one High Court to another, was clearly 
against the spirit of the Constitution. 
26. It was submitted, that the method of appointment of 
H Judges to the higher judiciary, was not the "be all" or the "end
SUPREME COURT ADVOCATES-ON-RECORD 
157 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
all", of the independence of the judiciary. The question of A 
independence of the judiciary would arise, with reference to a 
Judge, only after his appointment as a Judge of the higher 
judiciary. It was submitted, that this Court had repeatedly placed 
reliance on the debates in the Constituent Assembly, so as to 
bring out the intention of the framers of the Constitution, with 
B 
reference to constitutional provisions. In this behalf, he placed 
reliance on T.M.A. Pai Foundation v. State of Karnataka6, Re: 
Special Reference No.1 of 20027, and also on S.R. Chaudhuri 
v. State of Punjab8• The following observations in the last cited 
judgment were highlighted: 
C 
"33. Constitutional provisions are required to be 
understood and interpreted with an object-oriented 
approach. A Constitution must not be construed in a 
narrow and pedantic sense. The words used may be 
D 
general in terms but, their full import and true meaning, 
has to be appreciated considering the true context in 
which the same are used and the purpose which they 
seek to achieve. Debates in the Constituent Assembly 
referred to in an earlier part of this judgment clearly 
E 
indicate that a non-member's inclusion in the Cabinet 
was considered to be a "privilege" that extends only for 
six months, during which period the member must get 
elected, otherwise he would cease to be a Minister. It is 
a settled position
that debates in the Constituent F 
Assembly may be relied upon as an aid to interpret a 
constitutional provision because it is the function of the 
court to find out the intention of the framers of the 
Constitution. We must remember that a Constitution is 
not just a document in solemn form, but a living G 
framework for the Government of the people exhibiting 
a sufficient degree of cohesion and its successful 
• (2002) a sec 481 
1 (2002) a sec 237 
a (2001) 7 sec 126 
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working depends upon the democratic spirit underlying 
it being respected in letter and in spirit. The debates 
clearly indicate the "privilege" to extend "only" for six 
months." 
For the same purpose, he referred to Indra Sawhneyv. Union 
8 
of lndia9, and drew the ·court's attention to the opinion 
expressed therein: 
"217. Further, itis clear for the afore-mentioned reasons 
that the executive while making the division or sub-
C 
classification has not properly applied its mind to various 
factors, indicated above which may ultimately defeat the 
very purpose of the division or sub-classification. In that 
view, para 2(i) not only becomes constitutionally invalid 
but also suffers from the vice of non-application of mind 
D 
and arbitrariness. 
E 
F 
G 
xxx 
xxx 
xxx 
772. We may now turn to ConstituentAssembly debates 
with a view to ascertain the original intent underlying 
the use of words "backward class of citizens". At the 
outset we must clarify that we are not taking these 
debates or even the speeches of Dr Ambedkar as 
conclusive on the meaning of the expression "backward 
classes". We are referring to these debates as 
furnishing the context in which and the objective to 
achieve which this phrase was put in clause (4). We 
are aware that what is said during these debates is not 
conclusive or binding upon the Court because several 
members may have expressed several views. all of 
which may not be reflected in
the provision finally 
enacted. The speech of Dr Ambedkar on this aspect. 
however, stands on a different footing. He was not only 
the Chairman of the Drafting Committee which inserted 
the expression "backward" in draftArticle 10(3) [it was 
H • 1992 Supp (3) sec 211
SUPREME COURT ADVOCATES-ON-RECORD 
159 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
not there in the original draft Article 10(3)]. he was A 
virtually piloting the draft Article. In his speech. he 
explains the reason behind draft clause (3) as also the 
reason for which the Drafting Committee added the 
expression "backward" in the clause. In this situation. 
we fail to understand how can anyone ignore his speech 
B 
while trying to ascertain the meaning of the said 
expression. That the debates in Constituent Assembly 
can be relied upon as an aid to interpretation of a 
constitutional provision is borne out by a series of 
decisions of this Court. [See Madhu Limaye, in re, AIR C 
1969 SC 1014, Golak Nath v. State of Punjab, AIR 1967 
SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in 
Union of India v. H.S. Dhillon (1971) 2 SCC 779 and the 
several opinions in Kesavananda Bharati (1973)4 sec D 
225, wh·ere the relevance of these debates is pointed 
out, emphasing at the same time, the extent to which 
and the purpose for which they can be referred to.] Since 
the expression "backward" or "backward class of 
citizens" is not defined in the Constitution, reference to E 
such debates is permissible to ascertain, at any rate, 
the context, background and objective behind them. 
Particularly, where the Court wants to ascertain the 
'original intent' such reference may be unavoidable." 
Reliance was also placed on Kesavananda Bharati v. State of F 
Kerala10, and this
Court's attention was invited to the following: 
"1088. Before I refer to the proceedings of the 
ConstituentAssembly. I must first consider the question 
whether the Constituent Assembly Debates can be 
looked into by the Court for construing the.se provisions. G 
The Advocate-General of Maharashtra says until the 
decision of this Court in H.H. Maharajadhiraja Madhav 
Rao Jiwaji Rao Scindia Bahadur and others v. Union of 
10 (1973) 4 sec 225 
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SUPREME COURT REPORTS 
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India, (1971) 1 sec 85 - commonly known as Privy 
Purses case - debates and proceedings were held not 
to be admissible. Nonetheless counsel on either side 
made copious reference to them. In dealing with the 
interpretation of ordinary legislation, the widely held view 
is that while it is not permissible to refer to the debates 
as an aid to construction, the various stages through 
which the draft passed, the amendments proposed to it 
either to add or delete any part of it, the purpose for 
which the attempt was made and the reason for its 
rejection may throw light on the intention of the framers 
or draftsmen. The speeches in the legislatures are said 
to afford no guide because members who speak in 
favour or against a particular provision or amendment 
only indicate their understanding of the provision which 
would not be admissible as an aid for construing the 
provision. The members speak and express views which 
differ from one another, and there is no way of 
ascertaining what views are held by those who do not 
speak. It is, therefore, difficult to get a resultant of the 
views in a debate except for the ultimate result that a 
particular provision or its amendment has been adopted 
or rejected, and in any case none of these can be looked 
into as an aid to construction except that the legislative 
history of the provision can be referred to for finding out 
the mischief sought to be remedied
or the purpose for 
which it is enacted, if they are relevant. But in Travancore 
Cochin and others v. Bombay Company Ltd., AIR 1952 
SC 366, the Golaknath case (supra), the Privy Purses 
case (supra), and Union of India v. H.S. Dhillon, (1971) 
2 sec 779, there are dicta against referring to the 
speeches in the Constituent Assembly and in the last 
mentioned case they were referred to as supporting the 
conclusion already arrived at. In Golaknath case (supra), 
as well as Privy Purses case (supra), the speeches were
SUPREME COURT ADVOCATES-ON-RECORD 
161 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
referred to though it was said not for interpreting a A 
provision but for either examining the transcendental 
character of Fundamental Rights or for the 
circumstances which necessitated the giving of 
guarantees to the rulers. For whatever purpose 
speeches in the Constituent Assembly were looked at B 
though it was always claimed that these are not 
admissible except when the meaning was ambiguous 
or where the meaning was clear for further support of 
the conclusion arrived at. In either case they were looked 
into. Speaking for myself. why should we not look into C 
them boldly for ascertaining what was the intention of 
our framers and how they translated that intention? What 
is the rationale for treating them as forbidden or 
forbidding material. The Court in a constitutional matter, 
D 
where the intent of the framers of the Constitution as 
embodied in the written document is to be ascertained. 
should look into the proceedings, the relevant data 
including any speech which may throw light on 
ascertaining it. It can reject them as unhelpful, if they E 
throw no light or throw only dim light in which nothing 
can be discerned. Unlike a statute. a Constitution is a 
working instrument of Government. it is drafted by 
people who wanted it to be a national instrument to 
subserve successive generations. The Assembly F 
constituted Committees of able men of high calibre,
learning and wide experience, and it had an able adviser, 
Shri B.N. Rau to assist it. A memorandum was prepared 
by Shri B.N. Rau which was circulated to the public of 
every shade of opinion, to professional bodies, to 
G 
legislators, to public bodies and a host of others and 
was given the widest publicity. When criticism, 
comments and suggestions were received, a draft was 
prepared in the light of these which was submitted to 
the ConstituentAssembly, and introduced with a speech 
H
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by the sponsor Dr Ambedkar. The assembly thereupon 
constituted three Committees: (1) Union Powers 
Committee; (2) Provincial Powers Committee; and (3) 
Committee on the Fundamental Rights and Minorities 
Committee. 
The 
deliberations 
and 
the 
recommendations of these Committees, the 
proceedings of the Drafting Committee, and the speech 
of Dr Ambedkar introducing the draft so prepared along 
with the report of these Committees are all valuable 
material. The objectives of the Assembly. the manner in 
which they met any criticism. the resultant decisions 
taken thereupon. amendments proposed. speeches in 
favour or against them and their ultimate adoption or 
rejection will be helpful in throwing light on the particular 
matter in issue. In proceedings of a legislature on an 
ordinary draft bill, as I said earlier, there may be a 
partisan and heated debate, which often times may not 
throw any light on the issues which come before the 
Court but the proceedings in a Constituent Assembly 
have no such partisan nuances and their only concern· 
is to give the national a working instrument with its basic 
structure and human values sufficiently balanced and 
stable enough to allow an interplay of forces which will 
subserve the needs of future generations. The highest 
Court created under it and charged with the duty of 
understanding and expounding it. should not. if it has to 
catch the objectives of the
framers. deny itself the benefit 
of the guidance derivable from the records of the 
proceedings and the deliberations of the Assembly. Be 
that as it may, all I intend to do for the present is to 
examine the stages through which the draft passed and 
whether and what attempts were made to introduce 
words or expressions or delete any that were already 
there and for what purpose. If these proceedings are
SUPREME COURT ADVOCATES-ON-RECORD 
163 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
examined from this point of view, do they throw any light A 
on or support the view taken by me?" 
For the same proposition, reliance was also placed on 
Samsher Singh v. State of Punjab11, and on Manoj Narula v. 
Union of lndia12• 
B 
27. Having emphasized, that Constituent Assembly 
debates, had been adopted as a means to understand the 
true intent and import of the provisions of the Constitution, 
reference was made in extenso to the Constituent Assembly 
debates, with reference to the provisions (more particularly, to C 
Article 124) which are subject matter of the present 
consideration. It was pointed out, that after the constitution of 
the Constituent Assembly, the issue of judicial appointments 
and salaries was taken up by an ad hoc committee on the 
Supreme Court. The committee comprised of S. Varadachariar D 
(a former Judge of the Federal Court), B.L. Mitter (a former 
Advocate General of the Federal Court), in addition to some 
noted jurists-Alladi Krishnaswamy Ayyar, K.M. Munshi and 
B. N. Rau (Constitutional Adviser to the Constituent Assembly 
of India). The ad hoc committee presented its report to the 
E 
ConstituentAssembly on 21.5.1947. With reference to judicial 
independence, it modified the consultative proposal suggested 
in the Sapru Committee report, by recommending a panel of 
11 persons, nominated by the President, in consultation with 
the Chief Justice of
India. Alternatively, it was suggested, that 
F 
the panel would recommend three candidates, and the 
President in consultation with the Chief Justice of India, would 
choose one of the three. It was suggested, that the panel would 
take its decision(s) by 2/3rd majority. To ensure independence, G 
it was recommended, that the panel should have a tenure of 
ten years. Based on the above report,.it was submitted, that 
the proposal suggested a wider participation of a collegium 
11 (1974) 2 sec 831 
12 (2014) g sec 1 
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of Judges, politicians and law officers, in addition to the 
President and the Chief Justice of India, in the matter of 
appointment of Judges to the higher judiciary. Learned Attorney 
General went on to inform the Court, that on the basis of the 
above report, B.N. Rau prepared a memorandum dated 
B 30.5.1947, wherein he made his own suggestions. The above 
suggestions related to Judges of the Supreme Court, as also, 
of High Courts. The Court was also informed, that the Union 
Constitution Committee presented its report to the Constituent 
Assembly on 4. 7.194 7, also pertaining to appointments to the 
C higher judiciary. Yet another memorandum, on the Principles 
of a Model Provincial Constitution was prepared by the 
Constitutional Adviser on 13.5.194 7, relating to appointments 
to the higher judiciary, which was adopted by the Provincial 
0 
Constitution Committee. Reliance was placed by the Attorney 
General, on the speech delivered by Sardar Vallabhbhai Patel 
on 15. 7 .194 7, wherein he expressed the following views: 
E 
F 
G 
"The committee have given special attention to the 
appointment of judges of the High Court. This is 
considered to be very important by the committee and 
as the judiciary should be above suspicion and should 
be above party influences, it was agreed that the 
appointment of High Court judges should be made by 
the President of the Union in consultation with the Chief 
Justice of the Supreme
Court, the Chief Justice of the 
Provincial High Court and the Governor with the advice 
of the Ministry of the Province concerned. So there are 
many checks provided to ensure fair appointments to 
the High Court." 
The Court was informed, that the first draft of the new constitution 
prepared by B. N. Rau was presented to the Constituent 
Assembly in October 1947, wherein, it was expressed that 
Judges of the Supreme Court, would be appointed by the 
H President, in consultation with the sitting Judges of the Supreme
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Court, and Judges of High Courts in consultation with the Chief A 
Justice of India, except in the matter of appointment of the Chief 
Justice of India himself. It was suggested, that this was the 
immediate prec_ursortoArticle 124(2) of the Constitution, as it 
was originally framed. 
B 
28. It was pointed out, that in the above report prepared 
by the Constitutional Adviser, the following passage related to 
the judiciary: 
"Regarding the removal of judges, he (Justice 
Frankfurter, Judge, Supreme Court of the United States C 
of America) drew attention to a provision which had just 
been proposed in New York State - the provision has 
since been approved and which had the support of most 
of the judges and lawyers in this country. The provision 
is reproduced below: 
9-a (1) A judge of the court of appeals, a justice of the 
supreme court, a judge of the court of claims ... (types 
of judges)may be removed or retired also by a court on 
D 
the judiciary. The court shall be composed of the chief E 
judge of the court of appeals, the senior associate 
judges of the court of appeals and one justice of the 
appellate division in each department designated by 
concurrence of a majority of the justices of such 
appellate division ... 
F 
(2) No judicial officer shall be removed by virtue of this 
section except for cause or be retired except for mental 
or physical disability preventing
the proper performance 
of his judicial duties, nor unless he shall have been 
served with a statement of the charges alleged for his G 
removal or the grounds for his retirement, and shall have 
had an opportunity to be heard ... 
(3) The trial of charges for the removal of a judicial officer 
or of the grounds for his retirement shall be held before 
a court on the judiciary... 
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(4) The chief judge of the court of appeals may convene 
the court on the judiciary upon his own motion and shall 
convene the court upon written request by the governor 
or by the presiding justice of any appellate division ... " 
It was submitted, that the above suggestion of vesting 
8 
the power of impeachment, in-house by the judiciary itself, as 
recommended by Justice Frankfurter, was rejected. It was 
pointed out, that the second draft of the Constitution was placed 
before the Constituent Assembly on 21.2.1948. Articles 103 
C and 193 of the above draft, pertained to appointments of 
Judges to the Supreme Court and High Courts. It was 
submitted, that several public comments were received, with 
reference to the second draft. In this behalf, a memorandum 
was also received, from the Judges of the Federal Court and 
0 
the Chief Justices of the High Courts which, inter a/ia, 
E 
F 
expressed as under: 
"It seems desirable to insert a provision in these articles 
(Draft Articles 103(2) and 193(2) to the effect that no 
person should be appointed a judge of the Supreme 
Court or of a High Court who has at any time accepted 
the post of a Minister in the Union of India or in any State. 
This is intended to prevent a person who has accepted 
office of a Minister from exercising his influence in order 
to become a judge at any time. It is the unanimous 
view of the judges that a member of the Indian Civil 
Service should
not be a permanent Chief Justice of any 
High Court. Suitable provision should be made in the 
article for this." 
G 
It was submitted, that in response to the above 
memorandum, B.N. Rau made the following observations: 
"It is unnecessary to put these prohibitions into the 
Constitution. The- Attorney-General in England is 
invariably one of the Ministers of the Crown and often 
H 
even a Cabinet Minister; he is often appointed a judge
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
afterwards (The Lord Chancellor is, of course, both a A 
Cabinet Minister and the head of the judiciary). In India, 
Sapru and Sircarwere Law Members, or Law Ministers, 
as they would be called in future; no one would suggest 
that men of this type should be ineligible for appointment 
as judges afterwards... 
B 
Merit should be the only criterion for these high 
appointments; no constitutional ban should stand in the 
way of merit being recognized." 
It was asserted, that in the memorandum submitted by c 
the Judges of the Federal Court and the Chief Justices of the 
High Courts, the following suggestions were made: 
"It is therefore suggested that Article 193( 1) may be 
worded in the following or other suitable manner: 
Every Judge of the High Court shall be appointed by D 
the President by a warrant under his hand and seal on 
the recommendation of the Chief Justice of the High 
Court after consultation with the Governor of the State 
and with the concurrence of the Chief Justice of India... 
E 
We do not think it is necessary to make any provision in 
the Constitution for the possibility of the Chief Justice 
of India refusing to concur in an appointment proposed 
by the President. Both are officers of the highest 
responsibility and so far no case of such refusal has 
F 
arisen although a convention now exists that such 
appointments should be made after referring the matter 
to
the Chief Justice of India and obtaining his 
concurrence. If per chance such a situation were ever 
to arise it could of course be met by the President G 
making a different proposal, and no express provision 
need, it seems to us, be made in that behalf. 
The foregoing applies mutatis mutandis to the 
appointment of the Judges of the Supreme Court. and 
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article 103(2) may also be suitably modified. In this 
connection it is not appreciated why a constitutional 
obligation should be cast on the President to consult 
any Judge or Judges of the Supreme Court or of the 
High Court in the States before appointing a Judge of 
B 
the Supreme Court. There is nothing to prevent the 
President from consulting them whenever he deems it 
necessary to do so." 
It was pointed out, that none of the above proposals were 
C accepted. Reference was also made to the Editor of the Indian 
Law Review and the Members of the Calcutta Bar Association, 
who made the following suggestions: 
'That in clause (4) of Article 103 the words "and voting" 
should be deleted, as they consider that in an important 
D 
issue as the one contemplated in this clause, 
opportunity should be as much minimized as practicable 
for the legislators for remaining neutral." 
E 
F 
G 
H 
to which, the response of B.N. Rau was as under: 
"In the Constitutions of Canada, Australia, South Africa 
and Ireland, a bare majority of the members present 
and voting suffices for the presentation of the address 
for removal of a judge. Article 103(4) requires a two-
thirds majority of those present and voting. It is hardly 
necessary to tighten it further by deleting the words "and 
voting". 
With reference to the suggestions regarding non-
reduction of salaries of Judges, the Constitutional Adviser 
made the following comments: 
"The
constitutional safeguard against the reduction of 
salary of the Chief Justice and the judges of a High Court 
below the minimum has been prescribed in article 197 
so as to prevent the Legislatures of the States from 
reducing the salaries below a reasonable figure. It is
SUPREME COURT ADVOCATES-ON-RECORD 
169 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
hardly necessary to put such a check on the power of A 
Parliament to fix the salaries of the judges of the 
Supreme Court." 
The suggestions made by Pittabhi Sitaramayya and 
others, with reference to officers, and servants and the 
expenses of the Supreme Court, were also highlighted. They 8 
are extracted hereunder: 
"That in article 122, for the words "the Chief Justice of 
India in consultation with the President" the words "the 
President in consultation with the Chief Justice of India" c 
be substituted." 
The response of the Constitutional Adviser was as 
follows: 
''The provision for the fixation of the salaries, allowances 
and pensions of the officers and servants of the D 
Supreme Court by the Chief Justice of India in 
consultation with the President contained in clause (1) 
of article 122 is based on the existing. provision 
contained in section 242(4) of the Government of India 
Act, 1935, as adapted. The Drafting Committee E 
considered such a provision to be necessary to ensure 
the independence of the judiciary, the safeguarding of 
which was so much stressed by the Federal Court and 
the High Courts in their comments on the Draft 
F 
Constitution." 
29. It was pointed out, that the second draft of the 
Constitution, was introduced in the Constituent Assembly on 
4.11.1948. The Court's attention was drawn to the discussions, 
with reference to appointments to the
higher judiciary, including G 
the suggestion of B. Pecker Sahib, who proposed an 
alternative to Article 103(2). Reference was also made to the 
proposal made by MahboobAli Baig Sahib, guarding against 
party influences, that may be brought to the fore, with reference 
to appointment of Judges. It was submitted, that the above 
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suggestion was rejected by the Chairman of the Drafting 
Committee, who felt that it would be dangerous to enable the 
Chief Justice to veto the appointment of a Judge to the higher 
judiciary. The opinion ofT.T. Krishnamachari was also to the 
B 
c 
D 
E 
F 
G 
H 
following effect: 
"[T]he independence of the Judiciary should be 
maintained and that the Judiciary should not feel that 
they are subject to favours that the Executive might grant 
to them from time to time and which would naturally 
influence their decision in any matter they have to take 
where the interests of the Executive of the time being 
happens to be concerned. Atthe same time, Sir, I think 
it should be made clear that it is not the intention of this 
House or of the framers of this Constitution that they 
want to crate specially favoured bodies which in 
themselves becomes an lmperium in lmperio, 
completely independent of the Executive and the 
legislature and operating as a sort of superior body to 
the general body politic". 
30. The proposals and the decision taken thereon, were 
brought to our notice, specially the observations made by K.T. 
Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami 
Aayar, Ananthasayanam Ayyangar, and finally Dr. B.R. 
Ambedkar. Dr. B.R. Ambedkar had stated thus: 
"Finally, BRAmbedkar said: 
Mr. President, Sir, I would just like to make a few 
observations in order to Clear the position. Sir. there is 
no doubt that
the House in general. has agreed that the 
independence of the Judiciary from the Executive should 
be made as clear and definite as we could make it by 
law.At the same time, there is thefearthat in the name 
of the independence of the Judi~iary, we might be 
creating, what my Friend Mr. T.T. Krishnamachari very 
aptly called an "lmperium in lmperio". We do not want
SUPREME COURT ADVOCATES-ON-RECORD 
171 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
to create an lmperium in lmperio. and at the same time A 
we want to give the Judiciary ample independence so 
that it can act without fear or favour of the Executive. My 
friends. if they will carefully examine the provisions of 
the new amendment which I have proposed in place of 
the original article 122. will find that the new article 
B 
proposes to steer a middle course. It refuses to create 
an lmperium in lmperio. and I think it gives the Judiciary 
as much independence as is necessary for the purpose 
of administering justice without fear or favour." 
31. Having extensively brought to our notice, the nature 
of the debates before the Constituent Assembly, and the 
decisions taken thereon, the learned Attorney General ventured 
c 
to demonstrate, that the participation of the executive in the 
matter of appointment of high constitutional functionaries, 
D 
"could not- and did not", impinge upon their independence, in 
the discharge of their duties. Illustratively, reliance was placed 
on part IV Chapter V of the Constitution, comprising of 4 
Articles of the Constitution (Articles 148 to 151 ), dealing with 
the Comptroller and Auditor-General of India. It was submitted, 
E 
that duties and powers of the Comptroller and Auditor-General 
of India, delineated in Article 149, revealed, that the position 
of the Comptroller and Auditor-General of India, was no less in 
importance
vis-a-vis the Judges of the higher judiciary. Pointing 
out to Article 148, it was his contention, that the appointment 
F 
of the Comptroller and Auditor-General of India is made by the 
President. His removal under clause (1) of Article 148 could 
only, in the like manner, be made on the like grounds as a 
Judge of the Supreme Court of India. Just like a Judge of the 
Supreme Court, his salary and other conditions of service were G 
to be determined by Parliament by law, and until they were so 
determined, they were to be as expressed in the Second 
Schedule. Further more, just like a Judge of the Supreme 
Court, neither the salary of the Comptroller and Auditor-General, 
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nor his rights in respect of leave of absence, pen.sion or age 
of retirement, could be varied to his disadvantage, after his 
appointment. In a similar fashion, as in the case of the Supreme 
Court, persons serving in the Indian Audit and Accounts 
Department, were to be subject to such conditions of service, 
B as were determined by law made by Parliament, and till such 
legislative enactment was made, their conditions of service 
were determinable by the President, by framing rules, in 
consultation with the Comptrol!er and Auditor-General of India. 
Based on the above, it was contended, that even though the 
C appointment of the Comptroller and Auditor-General of India, 
was exclusively vested with the executive, there had never been 
an adverse murmur with reference to his being influenced by 
the executive. The inference sought to be drawn was, that the 
0 
manner of "appointment" is irrelevant, to the question of 
independence. Independence of an authority, according to the 
learned Attorney General, emerged from the protection of the 
conditions of the incumbent's service, after the appointment 
had been made. 
E 
32. In the like manner, our attention was drawn to Part 
XV of the Constitution, pertaining to elections. It was submitted, 
that Article 324 vested the superintendence, direction and 
control of elections to the Parliament, and the Legislatures of 
every State, and election to the offices of President and
Vice-
F 
President, with the Election Commission. The Election 
Commission in terms of Article 324(2) was comprised of the 
Chief Election Commissioner, and such number of other 
Election Commissioners as the President may from time to 
time fix. It was submitted, that the appointment of the Chief 
G Election Commissioner, and the other Election 
Commissioners, was to be made by the President, and was 
subject to the provisions of law made by Parliament. It was 
further pointed out, that under Article 324(5), the conditions of 
service and the tenure of the office of the Election 
H
SUPREME COURT ADVOCATES-ON-RECORD 
173 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Commissioners (and the Regional Commissioners) is A 
regulated in the manner, as the President may by rules 
determine. Of course, subject to, enactment of law by 
Parliament. So as to depict similarity with the matter under 
consideration, it was contended, that the proviso under Article 
324(5) was explicit to the effect, that the Chief Election 
B 
Commissioner could not be removed from his office, except 
in like manner, and on like grounds, as a Judge of the Supreme 
Court. And further more, that the conditions of service of the 
Chief Election Commissioner, could not be varied to his 
disadvantage, after his appointment. It was contended, that C 
the Indian experience had been, that the Chief Election 
Commissioner, and the other Election Commissioners, had 
functioned with absolute independence, and that, their 
functioning remained unaffected, despite the fact that their D 
appointment had been made, by the executive. It was 
submitted, that impartiality/independence emerged from the 
protection of the conditions of service of the incumbent after 
his appointment, and not by the method or manner of his 
appointment. 
• 
33. It was also the contention of the learned Attorney 
General, that implicit in the scheme of the Constitution, was a 
system of checks and balances, wherein the different 
constitutional functionaries participate in various processes· 
E 
of selection,
appointment, etc., so as to ensure, ttiat the 
F 
constitutional functionaries did not exceed, the functions/ 
responsibilities assigned to them. To substantiate the above 
contention, reliance was placed on the Kesavananda Bharati 
case10, wherein this Court observed as under: 
"577. We are unable to see how the power of judicial G 
review makes the judiciary supreme in any sense of the 
word. This power is of paramount importance in a 
federal Constitution. Indeed it has been said that the 
heart and core of a democracy lies in the judicial 
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process: (per Bose, J., in Bidi Supply Co. v. Union of 
India, AIR 1956 SC 479). The observations of Patanjali 
Sastri, C.J., in State of Madras v. V.G. Row, AIR 1952 
SC 196, which have become locus classicus need alone 
be repeated in this connection. Judicial review is 
undertaken by the courts "not out of any desire to tilt at 
legislative authority in a crusader's spirit. but in 
discharge of a duty plainly laid down upon them by the 
Constitution". The respondents have also contended that 
to let the court have judicial review over constitutional 
amendments would mean involving the court in political 
questions. To this the answer may be given in the words 
of Lord Porter in Commonwealth of Australia v. Bank of 
New South Wales 1950AC 235 at 310: 
"The problem to be solved will often be not so much 
legal as political, social or economic, yet it must be 
solved by a court of law. For where the dispute is, as 
here, not only between Commonwealth and citizen but 
between Commonwealth and intervening States on the 
one hand and citizens and States on the other, it is only 
the Court that can decide the issue, it is vain to invoke 
the voice of Parliament." 
• 
There is ample evidence in the Constitution itself to 
indicate that it creates a system of checks and balances 
~y reason of which powers are so distributed that none 
of the three organs it sets up can become so pre-
dominant as to disable the
others from exercising and 
discharging powers and functions entrusted to them. 
Though the Constitution does not lay down the principle 
of separation of powers in all its rigidity as is the cal?e 
in the United States Constitution but it envisages such 
a separation to a degree as was found in Ranasinghe's 
case. The judicial review provided expressly in our 
Constitution by means of Articles 226 and 32 is one of 
the features upon which hinges the system of checks
SUPREME COURT ADVOCATES-ON-RECORD 
175 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and balances. Apart from that, as already stated, the A 
necessity for judicial decision on the competence or 
otherwise of an Act arises from the very federal nature 
of a Constitution (per Haldane, L.C. in Attorney-General 
for the Commonwealth of Australia v. Colonial Sugar 
Refining Co. 1914 AC 237 and Ex Parte Walsh & 
B 
Johnson; In re Yates, (1925) 37 CLR 36 at p.58. The 
function of interpretation of a Constitution being thus 
assigned to the judicial power of the State, the question 
whether the subject of a law is within the ambit of one or 
more powers of the Legislature conferred by the C 
Constitution would always be a question of interpretation 
of the Constitution. It may be added that at no stage the 
respondents have contested the proposition that the 
validity of a constitutional amendment can be the subject D 
of review by this Court. The Advocate-General of 
Maharashtra has characterjsed judicial review as 
undemocratic. That cannot, however, be so in our 
Constitution because of the provisions relating to the 
appointment of judges. the specific restriction to which 
E 
the fundamental rights are made subject. the deliberate 
exclusion of the due process clause in Article 21 and 
the affirmation in Article 141 that judges declare but not 
make law. To this may be added the none too rigid 
amendatory process which authorises amendment by 
F 
means of 2/3 majority and
the additional requirement 
of ratification." 
The Court's attention was also invited to the observations 
recorded in Bhim Singh v. Union of lndia13: 
"77. Another contention raised by the petitioners is that G 
the Scheme violates the principle of separation of 
powers under the Constitution. The concept of 
separation of powers, even though not found in any 
,, (201 o) s sec 538 
H 
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particular constitutional provision, is inherent in the polity 
the Constitution has adopted. The aim of separation of 
powers is to achieve the maximum extent of 
accountability of each branch of the Government. 
78. While·understanding this concept. two aspects must 
be borne in mind. One, that separation of powers is an 
essential feature of the Constitution. Two. that in modern 
governance, a strict separation is neither possible. nor 
desirable. Nevertheless, till this principle of 
accountability is preserved, there is no violation of 
separation of powers. We arrive at the same conclusion 
when we assess the position within the constitutional 
text. The Constitution does not prohibit overlap of 
functions, but in fact provides for some overlap as a 
parliamentary democracy. But what it prohibits is such 
exercise of function of the other branch which results in 
wresting away of the regime of constitutional 
accountability. 
79. In Ram Jawaya Kapurv. State of Punjab.AIR 1955 
SC 549, this Court held that: (AIR p. 556, para 12) 
"12 .... The Indian Constitution has not indeed 
recognised the doctrine of separation of powers in its 
absolute rigidity but the functions of the different parts 
or branches of the Government have been sufficiently 
differentiated and consequently it can very well be said 
that our Constitution does not contemplate assumption, 
by one organ or part of the State, of
functions that 
essentially belong to another. The executive indeed can 
exercise the powers of departmental or subordinate 
legislation when such powers are delegated to it by the 
legislature. 
It can also. when so empowered. exercise judicial 
functions in a limited way. The executive Government. 
however, can never go against the provisions of the 
Constitution or of any law."
SUPREME COURT ADVOCATES-ON-RECORD 
177 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
80. In Kesavananda Bharati v. State of Kera la (1973) 4 A 
SCC 225. and later in Indira Nehru Gandhi v. Raj Narain 
(1976) 3 SCC 321. this Court declared separation of 
powers to be a part of the basic structure of the 
Constitution. In Kesavananda Bharati case Shelat and 
Grover, JJs. in SCC para 577 observed the precise 
B 
nature of the concept as follows: (SCC p. 452) 
"577 .... There is ample evidence in the Constitution 
itself to indicate that it creates a system of checks and 
balances by reason of which powers are so distributed 
that none of the three organs it sets up can become so C 
predominant as to disable the others from exercising 
and discharging powers and functions entrusted to them. 
Though the Constitution does not lay down the principle 
of separation of powers in all its rigidity as is the case D 
in the United States Constitution yet it envisages such 
a separation to a degree as was found in Ranasinghe 
case. The judicial review provided expressly in our 
Constitution by means of Articles 226 and 32 is one of 
the features upon which hinges the system of checks 
E 
and balances." 
and conclusion no.5, which is reproduced as under: 
" 
· (5) Indian Constitution doe·s not recognise strict 
separation of powers. The constitutional principle of F 
separation of powers will only be violated if an essential 
function of one branch is taken over by another branch.
leading to a removal of checks and balances." 
Last of all, the learned Attorney General placed reliance on 
State of UP v. Jeet S. Bisht14, wherein this Court held: 
G 
"78. Separation of powers in one sense is a limit on 
active jurisdiction of each organ. But it has another 
deeper and more relevant purpose: to act as check and 
" (2001) 6 sec 586 
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balance over the activities of other organs. Thereby the 
active jurisdiction of the organ is not challenged; 
nevertheless there are methods of prodding to 
communicate the institution of its excesses and shortfall 
in duty. Constitutional mandate sets the dynamics of this 
B 
communication between the organs of polity. Therefore, 
it is suggested to not understand separation of powers 
as operating in vacuum. Separation of powers doctrine 
has been reinvented in modern times." 
C 
34. The learned Attorney General emphasized, that there 
was a very serious and sharp cleavage of opinion on the 
subject, which is being canvassed before this Court. Relying 
on the judgment rendered by in the Sankalchand Himatlal 
Sheth case5, he pointed out, that in the aforesaid judgment, 
0 
this Court had arrived at the conclusion, that the term 
"consultation" could not be deemed to be "concurrence", with 
reference to Article 222. In conjunction with the above, he 
invited our attention to the judgment in the Samsher Singh 
case11 , wherein a seven-Judge Bench, which was dealing with 
E a controversy relating to Judges of subordinate courts, and 
the impact of Article 311, had examined the question whether · 
the President was to act in his individual capacity, i.e., at his 
own discretion; or he was liable to act on the aid and advice of 
the Council of Ministers, as mandated under Article 7 4. 
F Reliance was placed on the following
observations from the 
aforesaid judgment: 
G 
H 
. 
"149. In the light of the scheme of the Constitution we 
have already referred to. it is doubtful whether such an 
interpretation as to the personal satisfaction of the 
President is correct. We are of the view that the 
President means. for all practical purnoses. the Minister 
or the Council of Ministers as the case may be. and his 
opinion. satisfaction or decision is constitutionally 
secured when his Ministers arrive at such opinion
SUPREME COURT ADVOCATES-ON-RECORD 
179 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
satisfaction or d~cision. The independence of the A 
Judiciary, which is a cardinal principle of the Constitution 
and has been relied on to justify the deviation, is guarded 
by the relevant article making consultation with the Chief 
Justice of India obligatory. In all conceivable cases 
consultation with that highest dignitary of Indian justice B 
will and should be accepted by the Government of India 
and the Court will have an opportunity to examine if any 
other extraneous circumstances have entered into the 
verdict of the Minister. if he departs from the counsel 
given by the Chief Justice of India. In practice the last C 
word in such a sensitive subject must belong to the 
Chief Justice of India, the rejection of his advice being 
ordinarily regarded as prompted by oblique 
considerations vitiating the order. In this view it is D 
immaterial whether the President or the Prime Minister 
or the Minister for Justice formally decides the issue." 
35. It was submitted, that the aforesaid observations as 
were recorded in the Sam sher Singh case 11 , were relied upon 
in the Second Judges case. This Court, it was pointed out, 
E 
had clarified that the observations recorded in paragraph 149 
in the Samsher Singh case 11, were merely in the nature of an 
obiter. It was submitted, that the aforesaid observations in the 
Samsher Singh case11, were also noticed in paragraph 383 
(at
page 665), wherein it was sought to be concluded, that the 
F 
President, for all practical purposes, should be construed, as 
the concerned Minister or the Council of Ministers. Having 
noticed the constitutional provisions regarding "consultation" 
with the judiciary, this Court had expressed, that the 
Government was bound by such counsel. Reference was then G 
made to the judgment of this Court in the First Judges case, 
wherein it was held, that "consultation" did not include 
"concurrence", and further, that the power of appointment of 
Judges under Article 124, was vested with the President, and 
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also, that the President could override the views of the 
consultees. Last of all, to substantiate his submission(s) 
pertaining to the cleavage of opinion, reliance was placed on 
the Kesavananda Bharati case 10, wherein a thirteen-Judge 
Bench of this Court, had held, with reference to the power of 
B 
amendment under Article 368, that the concept of "basic 
structure", was a limitation, to the otherwise plenary power of 
amendment of the Constitution. 
36. In his effort to persuade us, to refer the instant matter, 
c to a nine-Judge Bench (or, to a still larger Bench), the learned 
Attorney General placed reliance on Suraz 1.ndia Trust v. Union 
of lndia15, and invited our attention to the following: 
D 
E 
F 
G 
"3. Shri A.K. Ganguli, learned Senior Advocate, has 
submitted that the method of appointment of a Supreme 
Court Judge is mentioned in Article 124(2) of the 
Constitution of India which states: 
"124. (2) Every Judge of the Supreme Court shall be 
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 ofappointment of a Judge other 
than the Chief Justice, the Chief Justice of India shall always 
be consulted." 
It may be noted that there is no mention: 
(i) Of
any Collegium in Article 124(2). 
(ii) The word used in Article 124(2) is "consultation'', and 
not "concurrence". 
(iii) The President of India while appointing a Supreme Court 
Judge can consult any Judge of the Supreme Court or even 
the High Court as he deems necessary for the purpose, 
H " (2012) 13 sec 497
SUPREME COURT ADVOCATES-ON-RECORD 
. 181 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and is not bound to consult only the five seniormost Judges· A 
of the Supreme Court. 
4. That by the judicial verdicts in the aforesaid two cases, 
Article 124(2) has been practically amended, although 
amendment to the Constitution can only be done by 
Parliament in accordance with the procedu~e laid down in 
B 
Article 368 of the Constitution of India. 
5. That under Article 124(2) while appointing a Supreme 
Court Judge, the President of India has to consult the Chief 
Justice of India, but he may also consult any other Supreme 
Court Judge and not merely the four seniormost Judges. 
C 
Also, the President of.India can even consult a High Court 
Judge, whereas, according to the aforesaid two decisions 
the President of India cannot consult any Supreme Court 
Judge other than the four seniormost Judges of the 
D 
Supreme Court, and he cannot consult any High Court 
Judge at all. 
6. Shri Ganguli submits that the matter is required to be 
considered by a larger Bench as the petition raises the 
following issues of constitutional importance: 
( 1) Whether the aforesaid two verdicts viz. the seven-Judge 
Bench and nine-Judge Bench decisions of this Court 
referred to above really amount to amending Article 124(2) 
of the Constitution? 
E 
(2) Whether there is any "Collegium" system for appointing 
F 
the Supreme Court or High Court Judges in the 
Constitution? 
(3) Whether the
Constitution can be amended by a judicial 
verdict or can it only be amended by Parliament in 
accordance with Article 368? 
(4) Whether· the constitutional scheme was that the 
Supreme Court and High Court Judges can be appointed 
by mutual discussions and mutual consensus between the 
judiciary and the executive; or whether the judiciary can 
G 
H
182 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
alone appoint Judges of the Supreme Court and High 
Courts? 
B 
c 
D 
E 
F 
G 
H 
(5) Whether the word "c011sultation" in Article 224 means 
"concurrence"? 
(6) Whether by judicial interpretation words in the 
Constitu~ion can be made redundant, as appears to have 
been done in the aforesaid two decisions which have made 
consultation with the High Court Judges redundant while 
appointing a Supreme Court Judge despite the fact that it 
is permissible on the clear language of Article 124(2)? 
(7) Whether the clear language of Article 124(2) can be 
altered by judicial verdicts and instead of allowing the 
President of India to consult such Judges of the Supreme 
Court as he deems necessary (including even junior 
Judges) only the Chief Justice of India and four seniormost 
Judges of the Supreme Court can alone be consulted while 
appointing a Supreme Court Judge? 
(8) Whether there was any convention that the President 
is bound by the advice of the Chief Justice of India, and 
whether any such convention (assuming there was one) 
can prevail over the clear language of Article 124(2)? 
(9) Whether the opinion of the Chief Justice of India has 
any primacy in the aforesaid appointments? 
(10) Whether the aforesaid two decisions should be 
overruled by a larger Bench? 
7. Mr G.E. Vahanvati, learned Attorney General for India, 
supports the petitioner contending that the aforesaid 
judgments require reconsideration. However, he
also 
submits: 
(a) A writ petition under Article 32 is not maintainable at the 
behest of a trust as the trust cannot claim violation of any 
of its fundamental rights; 
(b) The petitioner has no locus standi to seek review of the 
judgments of this Court. In fact, a petition under Article 32
SUPREME COURT ADVOCATES-ON-RECORD 
183 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
of the Constitution does not lie to challenge the correctness 
A 
of a judicial order; and 
(c) A Bench of two Judges cannot examine the correctness 
of the judgment of a nine-Judge Bench. 
(d) A Bench of two Judges cannot refer the matter to the 
larger Bench of nine Judges or more, directly. 
B 
xxxx 
xxxx 
xxxx 
11. However, Mr Ganguli dealing with the issue of locus 
standi of the Trust has submitted that the petition may not 
be maintainable but it should be entertained because it 
raises a large number of substantial questions of law. In 
C 
order to fortify his submission he places reliance upon a 
recent Constitution Bench judgment of this Court in B.P. 
Singhal v. Union of India (2010) 6 SCC 331 wherein while 
dealing with the issue of removal of Governors, this Court 
0 
held as under: (SCC p. 346, para 15) 
"15. The petitioner has no locus to maintain the petition in 
regard to the prayers claiming relief for the benefit of the 
individual Governors. At all events, such prayers no longer 
survive on account of passage of time. However, with 
E 
regard to the general question of public importance referred 
to the Constitution Bench, touching upon the scope of 
Article 156(1) and the limitations upon the doctrine of 
pleasure, the petitioner has the necessary locus." 
Thus, Mr Ganguli submits that considering the gravity of F 
the issues involved herein, the matter should be
entertained. 
12. While dealing with the issue of reference to the larger 
Bench, Mr Ganguli has placed a very heavy reliance on 
the recent order of this Court dated 30-3-2011 in Mineral 
Area Development Authority v. SAIL (2011) 4 SCC 450, 
G 
wherein considering the issue of interpretation of the 
constitutional provisions and validity of the Act involved 
therein, a three-Judge Bench presided over by the Hon'ble 
Chief Justice has referred the matter to a nine-Judge Bench. 
H
184 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
13. At this juncture, Mr Ganguli as well as Mr Vahanvati 
have submitted that even at the stage of preliminary hearing 
for admission of the petition, the matter requires to be heard 
by a larger Bench as this matter has earlier been dealt 
with by a three-Judge Bench and involves very complicated 
B 
legal issues. 
14. In view of the above, we place the matter before the 
Hon'ble the Chief Justice for appropriate directions." 
It was pointed out, that when the above matter was placed 
C before a three-Judge Bench of this Court, the same was 
dismissed on the ground of locus standi. Yet, since the above 
order was passed in the absence of the petitioner trust, an 
application had been moved for recall of the above order. It 
was his assertion, that whether or not a recall order was passed 
0 
with reference to the questions raised, it was apparent, that a 
Bench of this Court has already expressed the view, that the 
conclusions drawn in the Second and Third Judges cases, 
need a relook. 
37. Finally, to support the above suggestions, the Court's · 
E attention was drawn to the observations recorded by H.M. 
Seervai in the 4th edition of his book "Constitutional Law of 
India" wherein, with reference to the Second Judges case, very 
strong and adverse views were expressed. The aforesaid 
views are contained in paragraphs 25.448 to 25.497. For 
F reasons of brevity, it is not possible for us to extract the same 
herein. Suffice
it to state, that the submissions advanced by 
the learned Attorney General, as have been detailed in the 
foregoing paragraphs, were more or less, in accord with the 
G views expressed by H.M. Seervai. 
38. In order to contend, that it was open to this Court, to 
make a reference for reconsideration of the matters already 
adjudicated upon, the learned Attorney General, invited our 
attention to Jindal Stainless Limited v. State of Haryana16• 
H 
1• (201 O) 4 sec 595
SUPREME COURT ADVOCATES-ON-RECORD 
185 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"6. In Keshav Mills Co. Ltd. v. CITAIR 1965SC1636 ... (AIR 
A 
pp.1643-44, para 23) a Constitution Bench of this Court 
enacted the circumstances in which a reference to the 
larger Bench would lie. It was held that in revisiting and 
revising its earlier decision, this Court should ask itself 
whether in the interest of the public good or for any other 
B 
valid and compulsive reasons, it is necessary that the 
earlier decision should be revised? Whether on the earlier 
occasion, did some patent aspects of the question remain 
unnoticed, or was the attention of the Court not drawn to. 
any relevant and material statutory provision, or was any C 
previous decision bearing on the point not noticed? What 
was the impact of the error in the previous decision on 
public good? Has the earlier decision been followed on 
subsequent occasions either by this Court or by the High 
D 
Courts? And, would the reversal of the earlier decision lead 
to public inconvenience, hardship or mischief? 
7. According to the judgment in Keshav Mills case these 
and other relevant considerations must be born in mind 
whenever this Court is called upon to exercise its 
E 
jurisdiction to review and revisit its earlier decisions. Of 
course, in Keshav Mills case a caution was sounded to 
the effect that frequent exercise of this Court of its power 
to revisit its earlier decisions may incidentally tend to make
the law uncertain and introduce confusion which must be 
F 
avoided. But, that is not to say that if on a subsequent 
occasion, the Court is satisfied that its earlier decision was 
clearly erroneous, it should hesitate to correct the error. 
8. In conclusion, in Keshav Mills case, this Court observed 
that it is not possible to lay down any principles which should 
G 
govern the approach of the Court in dealing with the 
question of revisiting its earlier decision. It would ultimately 
depend upon several relevant considerations. 
9. In Central Board of Dawoodi Bohra Community v. State -
of Maharashtra (2005) 2 SCC 673 ... , a Constitution Bench 
H
186 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
of this Court observed that, in case of doubt, a smaller 
Bench can invite attention of Chief Justice and request for 
the matter being placed for hearing before a Bench larger 
than the one whose decision is being doubted." 
39. With the above noted submissions, learned Attorney 
B General for India concluded his address, for the review of the 
judgments in the Second and Third Judges cases. 
40. Mr. K.K. Venugopal, learned senior counsel, 
commenced his submissions by highlighting the main features 
c of the Constitution (67th Amendment) Bill, 1990. He invited 
our attention, to the proposed amendments of Articles 124, 
217, 222 and 231, and more particularly, to the inserstion of 
Part XlllA in the Constitution, under the heading "National 
Judicial Commission". Article 307A was proposed as the 
D singular Article in Part XII IA. Based on the constitution of the 
National Judicial Commission, it was asserted, that the above 
Bill, had been introduced, to negate the effect of the judgment 
of this Court in the First Judges case. It was submitted, that 
when the aforesaid Bill was introduced in the Parliament, the 
E Supreme Court Bar Association, of which Mr. Venugopal 
himself was the then President, organized a seminar on 
1.9.1990, for the purpose of debating the pros and cons of the 
Constitution (671h Amendment) Bill, 1990. It was submitted, 
that a large number of speakers had taken part in the debate 
F and had made
important suggestions. The above 
suggestions, drafted as a resolution of the seminar, were 
placed before the House, and were passed either unanimously 
or with an overwhelming majority. It was submitted, that the 
aforesaid resolutions were forwarded to the Chief Justice of 
G India, through a covering letter dated 5.10.1990. It was pointed 
out, that resolutions were also passed, at the conclusion of the 
Chief Justices' Conference, held between 31.8.1990 and 
2.9.1990, wherein also, the provisions of the Constitution (671h 
H Amendment) Bill, 1990, were deliberated upon. It was
SUPREME COURT ADVOCATES-ON-RECORD 
187 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
submitted, that he had made a compilation of the resolutions 
A 
passed at the Chief Justices Conference, and the conclusions 
drawn in the Second Judges case, which would give a bird's 
eye view, of the views expressed. The compilation to which 
learned counsel drew our attention, is being extracted 
hereunder: 
B 
" ... (1) The process of appointment of Judges to the 
Supreme Court and the High Courts is an integrated 
'participatory consultative process' for selecting the best 
and most suitable persons available for appointment; and 
C 
all the constitutional functionaries must perform this duty 
collectively with a view primarily to reach an agreed 
decision, subserving the constitutional purpose, so that the 
occasion of primacy does not arise. 
(2) Initiation of the proposal for appointment in the case of D 
·the Supreme Court must be by the Chief Justice of India, 
and in the case of a High Court by the Chief Justice of that 
High Court; and for transfer of a Judge/Chief Justice of a 
High Court, the proposal has to be initiated by the Chief 
Justice of India. This is the manner in which proposals for 
E 
appointments to the Supreme Court and the High Courts 
as well as for the transfers of Judges/Chief Justices of the 
High Courts must invariably be made. 
(3) In the event of conflicting opinions by the constitutional 
functionaries, the opinion of the judiciary 'symbolised by
F 
the view of the Chief Justice of India', and formed in the 
manner indicated, has primacy. 
(4) No appointment of any Judge to the Supreme Court or 
any High Court can be made, unless it is in conformity 
with the opinion of the Chief Justice of India. 
G 
(5) In exceptional cases alone, for stated strong cogent 
reasons, disclosed to the Chief Justice of India, indicating 
that the recommendee is not suitable for appointment, that 
appointment recommended by the Chief Justice of India 
H
188 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
may not be made. However, if the stated reasons are not 
accepted by the Chief Justice of India and the other Judges 
of the Supreme Court who have been consulted in the 
matter, on reiteration of the recommendation by the Chief 
Justice of India, the appointment should be made as a 
B 
healthy convention .... " 
Based on the aforesaid compilation, it was contended, 
that the judgment rendered in the Second Judges case, 
completely obliterated three salient features of Article 124. 
C Firstly, under the original Article 124, the main voice was that 
of the President. · It was submitted, that the voice of the 
President was totally choked in the Second Judges case. 
Secondly, Article 124, as it was originally framed, vested the 
executive with primacy, in respect of the appointments to the 
0 
higher judiciary, whereas the position was reversed by the 
Second Judges case, by vesting primacy with the judiciary. 
Thirdly, the role of the Chief Justice of India, which was originally, 
that of a mere consultee, was "turned over its head", by the 
decision in the Second Judges case. Now, the collegium of 
E Judges, headed by the Chief Justice of India, has been vested 
with the final determinative authority for making appointments 
to the higher judiciary. And the President is liable to "concur", 
with the recommendations made. Based on the above 
assertions, it was the submission of the learned counsel, that 
F 
by wholly
misconstruing Article 124, the Supreme Court had 
assumed the entire power of appointment. And the voice of 
the executive had been completely stifled. It was submitted, 
that the judiciary had performed a legislative function, while 
interpreting Article 124. It was asserted, that originally the 
G founding fathers had the power to frame the provisions of the 
Constitution, and thereafter, the Parliament had the power to 
amend the Constitution in terms of Article 368. It was 
submitted, that the role assigned to the Constituent Assembly, 
as also to the Parliament, has been performed by this Court in 
H
SUPREME COURT ADVOCATES-ON-RECORD 
189 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the Second Judges case. It was submitted, that all this had 
A 
been done in the name of"judicial independence". The above 
logic was sought to be seriously contestecj by asserting, that 
judicial independence could not stand by itself, there was 
something like judicial accountability also, which had to be kept 
in mind. 
B 
41. It was also contended, that the judiciary had taken 
upon itself, the exclusive role of making appointments to the 
higher judiciary, without taking into consideration any of the 
stakeholders. It is submitted, that the judiciary is meant for the c 
litigating community, and therefore, the litigating community 
was liable to be vested with some role in the matter of 
appointments to the higher judiciary. Likewise, it was pointed 
out, that there were about ten lakhs lawyers in this country. They 
also had not been given any say in the matter. Even the Bar D 
Associations, which have the ability to represent the lawyers' 
fraternity, had been excluded from any role in the process of 
appointments. It was highlighted, that under the old system, 
all the above st~keholders, had an opportunity to make 
representations to the executive, in the matter of appointments E 
to the higher judiciary. But, that role has now been totally 
excluded, by the interpretation placed on Article 124, by the 
Second Judges case. The Court's attention was drawn to 
conclusion no.14
drawn in the summary of conclusions 
(recorded in paragraph 486, in the Second Judges case) that 
F ~ 
the majority opinion in the First Judges case, insofar as, it had 
taken a contrary view, relating to primacy of the role of the Chief 
· Justice of India, in matters of appointments and transfers, and 
the justiciability of these matters, as well as, in relation to judge-
strength, did not commend itself as being the correct view. 
G 
Accordingly it was concluded, that the relevant provisions of 
the Constitution including the constitutional scheme must now 
be construed, understood and implemented, in the manner 
indicated in the conclusions drawn in the Second Judges case. 
H
190 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A The above determination, according to learned counsel, was 
absolutely misconceived, as the same totally negated the effect 
of Article 7 4, which required the President to act only on the 
aid and advice of the Council of Ministers. According to learned 
counsel, the President would now have to act as per the dictate 
B of the Chief Justice of India and the collegium of Judges. It 
was submitted, that it was impermissible in law, for a party to 
make a decision in its own favour. This, according to learned 
counsel, is exactly what the Supreme Court had done in the 
Second Judges case. It was contented, that the impugned 
C constitutional amendment was an effort at the behest of the 
Parliament, to correct the above historical aberration. Learned 
counsel concluded, by asserting, that there were two Houses 
of Parliament under the Constitution, but the Supreme Court 
0 
in the Second Judges case, had acted as a third House of 
Parliament, namely, as the House of corrections. In the 
background of the aforesaid factual position, it was submitted, 
that when the Union of India and the States which ratified the 
Constitution (99th Amendment) Act, seek reconsideration of 
E the Second Judges case, was it too much, that the Union and 
the States were asking for? 
42. Following the submissions noticed hereinabove, we 
heard Mr. K. Parasaran, Senior Advocate, who also supported 
the prayer made by the learned Attorney General. It was
F submitted, that the appointment of Judges had nothing to do 
with "independence of the Judge" concerned, or the judicial 
institution as a whole. It was submitted, that subsequent to 
their appointment to the higher judiciary, the conditions of 
service of Judges of the High Court and the Supreme Court 
G were securely protected. Thereafter, the independence of the 
Judges depended on their judicial conscience, and the 
executive has no role to play therein. 
43. It was asserted, that the Judges who expressed the 
H majority view, in the Second Judges case, entertained a
SUPREME COURT ADVOCATES-ON-RECORD 
191 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
preconceived notion about the "basic structure", even before A 
hearing commenced, in the Second Judges case. In this behalf, 
he placed reliance on the resolutions passed at the conclusion 
of the Chief Justices' Conference, held between 31.8.1990 
and 2.9.1990. It was asserted, that the controversy had not 
been adjudicated on the basis ~fan independent assessment, 
B 
of the views expressed in the Constituent Assembly debates 
(with reference to the text of Article 124 ). It was submitted, that 
the interpretation rendered on Article 124, expressly ignored, 
not only the simple langu_age indicating the procedure for 
appointment of Judges, but also the surrounding constitutional C 
provisions. According to learned senior counsel, the judiciary 
had encroached into the executive power of appointment of 
Judges. This amounted to encroaching into a constitutional 
power, reserved for the executive, by the Constitution. It was D 
asserted, that the power of amendment of the Constitution, 
vested in the Parliament under Article 368, was only aimed at 
keeping the Constitution in constant repair. It was submitted, 
that the aforesaid power vested with the Parliament, could not 
have been exercised by the Supreme Court, by substituting 
E 
the procedure of appointment of Judges, in the manner the 
Supreme Court felt. It was submitted, that in the Second Judges 
case, as also, the Third
Judges case, the Supreme Court had 
violated the "basic structure", by impinging upon legislative 
power. It was contended, that it was imperative for this Court F 
to have a re-look at the two judgments, so as to determine, 
whether there had been a trespass by the judiciary, into the 
legislative domain. And, if this Court arrives at the conclusion, 
that such was the case, it should strike down its earlier 
determination. It was further submitted, that the majesty of the G 
Constitution, must be maintained and preserved at all costs, 
and there should be no hesitation in revisiting any earlier 
judgment, so as to correct an erroneous decision. With the 
aforesaid observations, learned counsel commended the 
Bench, to accept the prayer made by the learned Attorney 
H
192 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
General, and to make a reference for reconsideration of the 
judgments rendered by this Court, in the Second and Third 
Judges cases, to a Bench with an appropriate strength. 
44. Mr. Ravindra Srivastava, Senior Advocate, also 
B supported the submissions for reference to a larger Bench. It 
was submitted, that the conclusions drawn by this Court in the 
Second Judges case, and the Third Judges case, were liable 
to be described as doubtful, because a large number of salient 
facts, had not been taken into consideration, when the same 
c were decided. It was the contention of the learned counsel, 
that the submissions advanced on behalf of the petitioners, on 
merits, could not be supported by the text of the constitutional 
provisions, and that, the petitioners' reliance squarely based 
on the majority judgment in the Second Judges case, as was 
o further explained in the Third Judges case, was seriously 
flawed. It was submitted, that the thrust of the submissions 
advanced on behalf of the petitioners on merits had been, not 
only that the consultation with the Chief Justice of India was 
mandatory, but the opinion of the collegium of Judges was 
E binding on the executive. It was asserted, that neither of the 
above requirements emerged from the plain reading of Article 
124. It was asserted, that the basis of the learned counsel 
representing the petitioners, to assail the impugned 
constitutional amendment, as also the
NJAC Act, was squarely 
F 
premised on the above determination. It was asserted, that 
the conclusion of primacy of the judiciary, in the matter of 
appointment of Judges in the higher judiciary, could not be 
supported by any text of the original constitutional provisions. 
It was, accordingly suggested, that it was absolutely imperative 
G to correct the majority view expressed in the Second Judges 
case. 
45. According to the learned counsel, the primary 
objection raised, at the behest of the petitioners, opposing 
H the reconsideration of the decision rendered in the Second
SUPREME COURT ADVOCATES-ON-RECORD 
193 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Judges case, was based on the observations recorded in 
A 
paragraph 10 of the Third Judges case, wherein the statement 
of the then Attorney General for India, had been recorded, that 
the Union of India was not seeking a review or reconsideration 
of the judgment in the Second Judges case. It was submitted, 
that the aforesaid statement, could not bar the plea of B 
reconsideration, for all times to come. It was further submitted, 
that the above statement would not bind the Parliament. It was 
contended, that the statement to the effect, that the Union of 
India, was not seeking a review or reconsideration of the 
Second Judges case, should not be understood to mean, that C 
it was impliedly conceded, that the Second Judges case had 
been correctly decided. It was pointed out, that the advisory 
jurisdiction under Article 143, which had been invoked by the 
Presidential Reference made on 23.7.1998, requiring this D 
Court to render the Third Judges case, was neither appellate 
nor revisionary in nature. In this behalf, learned counsel placed 
reliance on Re: Cauvery Water Disputes Tribunal1 7, wherein it 
was held, that an order passed by the Supreme Court, could 
be reviewed only when its jurisdiction was invoked under Article E 
137 of the Constitution (read with Rule 1 of Order 40 of the 
Supreme Court Rules, 1946). And that, a review of the 
judgment rendered by the Supreme
Court, in the Second 
Judges case, could not be sought through a Presidential 
Reference made under Article 143. In fact, this Court in the 
F 
above judgment, had gone on to conclude, that if the power of 
review was to be read in Article 143, it would be a serious 
inroad into the "independence of the judiciary". It was therefore 
submitted, that the statement of the then Attorney General, 
during the course of hearing of the Third Judges case, could G 
not be treated as binding, for all times to come, so as to deprive 
the executive and the legislature from even seeking a review 
of the judgments rendered. It was therefore contended, that it 
11 1993 Supp ( 1) sec 96(11) 
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SUPREME COURT REPORTS 
[2015]13S.C.R. 
A 
was implicit while discharging its duty, that ·this Court was 
obliged to correct the errors of law, which may have been 
committed in the past. Learned counsel contended, that a 
perusal of the judgment of this Court in the Subhash Sharma 
case4 , clearly brought out, that no formal request was made to 
B 
this Court for reconsideration of the legal position declared by 
this Court in the First Judges case. Yet, this Court, on its own 
motion, examined the correctness of the First Judges case, 
and suo motu, made a reference of the matter, to a nine-Judge 
Bench, to reconsider the law declared in the First Judges case. 
c 
46. While pointing to the reasons for reconsideration of 
the law laid down by this Court in the Second Judges case 
(read with the Third Judges case), learned senior counsel, 
asserted, that the essence of Article 124, had been completely 
o ignored by the majority view. Learned senior counsel, 
accordingly, invited our attention to the scheme of Article 124(2) 
and canvassed and summarized the following salient features 
emerging therefrom: 
E 
F 
G 
H 
"i. The authority to appoint Judges of the higher judiciary 
was vested in the President. 
ii. The above power of appointment by the President, was 
subject to only one condition, namely, 'consultation'. 
iii. The above consultation was a two-fold - one which in 
the opinion of the President may be deemed necessary, 
and the other which was mandatory. 
iv.
The mandatory consultation was with the Chief Justice 
of India. The consultation which the President may have 
'if deemed necessary for the purpose, was with judges of 
the Supreme Court and also of the High Courts in the states, 
as may be felt appropriate. 
v. There was no limitation on the power, scope and ambit 
of the President to engage in consultation, he may not only 
with the judges of the Supreme Court, but may also consult
SUPREME COURTADVOCATES-ON-RECORD 
195 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
judges of High Courts as he may deem necessary, for this 
A 
purpose. 
vi. There was also no limitation on the 
President's power of consultation. He could consult as 
many judges of the Supreme Court and High Courts which 
he deemed necessary for the purpose. 
vii. Having regard to the object and purpose of the 
B 
appointment of a judge of the Supreme Court, and that, 
such appointment was to the highest judicial office in the 
Republic, was clearly intended to be broad-based, 
interactive, informative and meaningful, so that, the 
C 
appointment was made of the most suitable candidate. 
viii. This aspect of the power of consultation of the 
President, as had been provided had been completely 
ignored in the majority judgment in Second Judges' case. 
And the focus has been confined only to the consultation, 
D 
with the Chief Justice of India. 
ix. The interpretation of the consultative process, and the 
procedure laid down, in the majority judgement in the 
Second Judges case, that the President's power of 
consultation, was all-pervasive had been 'circumscribed', 
E 
having been so held expressly in paragraph 458 (by Justice 
J.S. Verma) in the Second Judges' case. 
x. The majority judgment has focused only on the 
requirement of consultation by the President with the Chief F 
Justice of India which is requirement of proviso, ignoring 
the substantive part. 
xi. The collegium system
had been evolved! for consultation 
with the Chief Justice of India on the interpretation, that for 
purposes of consultation with the Chief Justice of India, 
G 
the CJI alone as an individual would not matter, but would 
mean in plurality i.e. his collegium. But this is an 
interpretation only of the proviso and not of the substantive 
part of Article 124(2). 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Xii The collegium system was evolved for consultation with 
the CJI and his colleagues in particular in fixed numbers 
as laid down in the judgment. 
xiii. The whole provision for consultation by the President 
of India with the judges of the Supreme Court and the High 
Court, had thus been stultified, in ignorance of the 
substantive part of Article 124(2), and as such, one was 
constrained to question the majority judgment as being 'per 
incuriam'." 
c 
47. According to learned senior counsel, a perusal of 
the judgment in the Subhash Sharma case4 would reveal, that 
reconsideration of the judgments in the First Judges case, was 
only on two issues. Firstly, the status and importance of 
consultation, and the primacy of the position of the Chief Justice 
D of India. And secondly, the justiceability offixation, of the judge-
strength of a Court. It was asserted, that no other issuewas 
referred for reconsideration. This assertion was sought to be 
supported with the following observations; noticed in the 
E 
F 
G 
·H 
Subhash Sharma case4: 
"49. . .... Similarly, the writ application filed by Subhash 
Sharma for the reasons indicated above may also be 
disposed of without further directions. As and when 
necessary the matter can be brought before the court. As 
in our opinion the correctness of the majoritv view in S.P. 
Gupta case [(1981) Supp. sec 87] should be considered 
by a larger bench we direct the papers of W.P.
No.1303 of 
1987 to be placed before the learned Chief Justice for 
constitutihg a bench of nine Judges to examine the two 
guestions we have referred to above. namely, the position 
of the Chief Justice of India with reference to primacy and. 
secondly, justiciability of fixation of Judge strength." 
It was asserted, that there was no scope or occasion for 
the Bench hearing the Sec.ond Judges case, to rewrite the 
Constitution, on the subject of appointment of Judges to the
SUPREME COURT ADVOCATES-ON-RECORD 
197 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
higher judiciary. It was submitted, that the observations A 
recorded in the Second Judges case, in addition to the above 
mentioned two. issues, were liable to be regarded as obiter 
dicta. 
In the Second Judges case, the ratio decidendi, 
according to learned counsel, was limited to the declaration 
of the legal position, only on the two issues, referred to the 
B 
larger Bench for consideration. Thus viewed, it was asserted, 
that all other conclusions recorded in the Second Judges case, 
on issues other than the two questions referred for 
reconsideration, cannot legitimately be described as binding 
law under Article 141. To support the above contention, reliance C 
was placed on Kerala State Science and Technology Museum 
v. Rambal Co.18, wherein this Court held as under: 
"8. It is fairly well settled that when reference is made on a 
specific issue either by a learned Single Judge or Division 
D 
Bench to a larger Bench i.e. Division Bench or Full Bench 
or Constitution Bench, as the case may be, the larger 
Bench cannot adjudicate upon an issue which is not the 
question referred to. (See Kesho Nath Khurana v. Union of 
India [(1981) Supp. SCC 38], Samaresh Chandra Bose v. 
E 
District Magistrate, Burdwan [(1972) 2 SCC 476] and K.C.P. 
Ltd. v. State Trading Corpn. of India [(1995) Supp. (3) SCC 
466]." 
48. Learned senior counsel submitted, that in the Second 
Judges case, this
Court assigned an innovative meaning to 
F 
the words "Chief Justice of India", by holding that the term "Chief 
Justice of India" in Article 124, included a plurality of Judges, 
and not the individual Chief Justice of India. This, according 
to learned counsel, was against the plain meaning and text of 
Article 124. Learned counsel, went on to add, that this Court G 
in the Second Judges case, had laid down an inviolable rule 
of seniority, for appointment of Chief Justice of India. It also 
laid down, the rules and the norms, for transfer of Judges and 
10 (2006) 6 sec 258 
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[2015] 13 S.C.R. 
A 
Chief Justices, from one High Court to another. It also 
concluded, that any transfer of a Judge or Chief Justice of a 
High Court, made on the recommendation of the Chief Justice 
of India, would be deemed to be non-punitive. In sum and 
substance, learned counsel contended, that the Second 
B Judges case, laid down a new structure, in substitution to the 
role assigned to the Chief Justice of India. The conclusions 
recorded in the Second Judges case, according to learned 
counsel, could not be described as a mere judicial 
interpretation. It was asserted, that the same was nothing short 
C of judicial activism (or, judicial legislation). 
49. Learned senior counsel then invited the Court's 
attention, to the principles laid down for reconsideration, or 
review of a previous judgment. For this he pointedly invited 
o the Court's attention to Bengal Immunity Co. Ltd. v. State of 
Bihar19, Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of 
Greater Bombay20 , and Union of India v. Raghubir Singh21 • 
Learned counsel also referred to Pradeep Kumar Biswas v. 
Indian Institute of Chemical Biology22, wherein it was observed: 
E 
"61. Should Sabhajit Tewary (1975) 1 SCC 485 ... still stand 
as an authority even on the tacts merely because it has 
stood for 25 years? We think not. Parallels may be drawn 
even on the facts leading to an untenable interpretation of 
F 
G 
Article 12 and a consequential denial of the benefits of
fundamental rights to individuals who would otherwise be 
entitled to them and 
"(!]here is nothing in our Constitution which prevents us 
from departing from a previous decision if we are convinced 
of its error and its baneful effect on the general interests of 
the public." [Bengal Immunity Co. Ltd. v. State of Bihar, AIR 
1955 SC 661, 672] (AIR p. 672, para 15) 
" (1955) 6 SCR 603 
20 (1974) 2 sec 402 
H 
21 (1989) 2 sec 754
SUPREME COURT ADVOCATES-ON-RECORD 
199 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Since on a re-examination of the guestion we have-come 
A 
to the conclusion that the decision was plainly erroneous. 
it is our duty to say so and not perpetuate our mistake." 
It was pointed out, that in the Second Judges case, S. 
Ratnavel Pandian, J. had observed as follows: 
"17. So it falls upon the superior courts in a large measure 
the responsibility of exploring the ability and potential 
capacity of the Constitution with a proper diagnostic insight 
B 
of a new legal concept and making tbis flexible instrument 
serve the needs of the people of this great nation without C 
sacrificing its essential features and basic principles which 
lie at the root of Indian democracy. However, in this process, 
our main objective should be to make the Constitution quite 
understandable by stripping away the mystique and enigma 
that permeates and surrounds it and by clearly focussing 
D 
on the reality of the working of the constitutional system 
and scheme so as to make the justice delivery system 
more effective and resilient. Although freguent overruling 
of decisions will make the law uncertain and later decisions 
unpredictable and this Court would not normally like to 
E 
reopen the issues which are concluded it is by now well 
settled by a line of judicial pronouncements that it is 
emphatically the province and essential duty of the superior 
courts to review or reconsider their
earlier decisions, if so 
warranted under compelling circumstances and even to 
F 
overrule any questionable decision. either fully or partly, if 
it had been erroneously held and that no decision enjoys 
absolute immunity from judicial review or reconsideration 
on a fresh outlook of the constitutional or legal interpretation 
and in the light of the development of innovative ideas, 
G 
principles and perception grown along with the passage of 
time. This power squarely and directly falls within the rubric 
of judicial review or reconsideration." 
22 (2002) s sec 111 
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[2015] 13 S.C.R. 
A 
It was submitted, that Kuldip Singh, J., in the Second 
B 
c 
D 
Judges case, had recorded as follows: 
"320. It is no doubt correct that the rule of stare decisis 
brings about consistency and uniformity but at the same 
time it is not inflexible. Whether it is to be followed in a 
given case or not is a question entirely within the discretion 
of this Court. On a number of occasions this Court has 
been called upon to reconsider a question already decided. 
The Court has in appropriate cases overruled its earlier 
decisions. The process of trial and error, lessons of 
experience and force of better reasoning make this Court 
wiser in its judicial functioning. In cases involving vital 
constitutional issues this Court must feel to bring its 
opinions into agreement with experience and with the facts 
newly ascertained. Stare decisis has less relevance in 
constitutional cases where save for constitutional 
amendments. this Court is the only body able to make 
needed changes. Re-examination and reconsideration are 
among the normal processes of intelligent living. We have 
E 
not refrained from reconsideration of a prior construction 
of the Constitution that has proved "unsound in principle 
and unworkable in practice." 
Based on the above, learned counsel summarized his 
assertions as follows. Firstly, the real constitutional question, 
F requiring re-examination, was in the context of appointment of 
Judges to the higher
judiciary, was the interpretation of Article 
74. Because the Second Judges case, had made a serious 
inroad into the power of the President which was bound to be 
exercised in consonance with Article 74. It was contended, 
G that the functioning of the President, in the absence of the aid 
and advice of the Council of Ministers, could not just be 
imagined under the scheme of the Constitution. And therefore, 
the substitution of the participatory role of the Council of 
H Ministers (or, the Minister concerned), with that of the Chief
SUPREME COURT ADVOCATES-ON-RECORD 
201 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Justice of India in conjunction with his collegium, was just A 
unthinkable. And secondly, that the First Judges case, was 
wrongly overruled, and the correct law for appointment of 
Judges, vis-a-vis the role of the executive, was correctly laid 
down in the First Judges case, by duly preserving the 
"independence of the judiciary". It was submitted, that reference 
B 
to a larger Bench was inevitable, because it was not open to 
the respondents, to canvass the above submission, before a 
five-Judge Bench." 
50. Mr. Harish N. Salve and Mr. T.R.Andhyarujina, learned c 
senior counsel, addressed the Court separately. Their 
submissions were however similar. It was their contention, 
that a Constitutional Court revisits constitutional issues, from 
time to time. This, according to learned counsel, has to be 
done because the Constitution is a living document, and 
D 
needed to be reinvented, to keep pace with .the change of 
times. It was submitted, that this may not be true for other 
branches of law, wherein judgments are not revisited, because 
the Courts were expected to clearly and unambiguously follow 
the principle of stare decisis, with reference to laws dealing E 
with private rights. Insofar as the controversy in hand is 
concerned, it was submitted, that the conclusions recorded by 
this Court in the Second and Third Judges cases, indicated 
doubtful conclusions, because a
large number of salient facts 
(as have been recorded above), .had not been taken into 
F 
consideration. It was submitted, that expediency in a 
controversy like the one in hand, should be in favour of the 
growth of law. It was submitted, that in their view this was one 
such case, wherein the issue determined by this Court in the 
Second and Third Judges cases, needed to be re-examined 
G 
by making a reference to a larger Bench. Learned counsel 
pointed out, that the submissions made in the different petitions 
filed before this Court, were not supported by the text of any 
constitutional provision, but only relied on the legal position 
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[2015] 13S.C.R. 
A 
declared by this Court, in the above two cases. In such an 
important controversy, according to learned counsel, this Court 
should not be hesitant in revisiting its earlier judgments. Mr. 
Andhyarujina posed a query, namely, can we decide the 
controversy raised in the present case, without the 
B reconsideration of the judgments in the Second and Third 
Judges cases? He answered the same through another query, 
how can appointments of Judges be by Judges? The above 
position was again posed differently, by putting forth a further 
query, car1 primacy rest with the Chief Justice of India in the 
C matter of appointment of Judges to the higher judiciary? 
51. Mr. Ajit Kumar Sinha, learned Senior Advocate, in 
support of his contention, that the matter needed to be heard 
by a larger Bench, placed reliance on Mineral Area 
o Development Authority v. Steel Authority of lndia23, and invited 
our attention to question no.5 of the reference made by this 
Court: 
· 
"5. Whether the majority decision in State of W.B. v. 
Kesoram Industries Ltd. [(2004) 10 SCC 201] could be 
E 
read as departing from the law laid down in the seven-
Judge Bench decision in India Cement Ltd. v. State of 
T.N. [(1990) 1sec12)?" 
It was pointed out, that the above question came to be 
F framed because in State of West Bengal v. Kesoram Industries 
Ltd.24 , this Court by a majority of 4:1 had clarified the judgment 
rendered by a seven-Judge Bench of this