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
396 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
113. With reference to the two "eminent persons" on the 
NJAC, it was his contention, that they could not be identified 
either with the executive or the legislature. For the nomination 
of the two "eminent persons", the Selection Committee 
comprises of one member of the executive, one member of 
B the legislature, and one member of the judiciary. In the above 
view of the matter, it was asserted, that the contention, that the 
two "eminent persons" in the Commission would support the 
executive/the legislature, was preposterous. It was therefore 
the submission of the learned senior counsel, that the 
C "independence of the judiciary" could not be considered to have 
been undermined, keeping in mind the composition of the 
NJAC. 
114. It was also contended, thatthe proceedings before 
o the NJAC would be more transparent and broad based, and 
accordingly, more result oriented, and would ensure, thatthe 
best candidates would be selected for appointment as Judges 
to the higher judiciary. 
115. It was asserted, that the NJAC provided for a 
E consultative process with persons who were ex-hypothesi, well 
qualified to give proper advice in the matter of appointment of 
Judges to the higher judiciary. It was accordingly the assertion 
of learned counsel, that the determination rendered by this 
F 
Court, in the Second and Third Judges cases, was not in 
consonance with the intent, with which Articles 124 and 217 
were
originally enacted. It was therefore submitted, that the 
subject of "independence of the judiciary", with reference to 
the impugned constitutional amendment, should not be. 
G determined by relying on the Second and Third Judges cases, 
but only on the basis of the plain reading of Articles 124 and 
217, in conjunction with, the observations expressed by the 
Members of the Constituent Assembly while debating on the 
above provisions. It was submitted, that whilst the Union 
H Minister in charge of Law and Justice, would be in an effective
SUPREME COURT ADVOCATES-ON-RECORD 
397 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
position to provide necessary inputs, with reference to the A 
character and antecedents of the candidate(s) concerned (in 
view of the governmental machinery availabl€ at his 
command), the two "eminent persons" would be in a position 
to participate in the selection process, by. representing the 
general public, and thereby, the selection process would be 
B 
infused with all around logical inputs, for a wholesome 
consideration. 
116. It was submitted, that since any two Members of the 
NJAC, were competent to veto the candidature of a nominee, c 
three representatives of the Supreme Court of India, would be 
clearly in a position to stall the appointment of unsuitable 
candidates. It was therefore contended .. that the legislations 
enacted by the Parliament, duly ratified in terms of Article 368, 
should be permitted to become functional, with the constitution D 
of the NJAC, and should further be permitted to discharge the 
responsibility of appointing Judges to the higher judiciary. It 
was submitted, that in case of any deficiency in the discharge 
of the said responsibility, this Court could suo motu negate 
the selection process, or exclude one or both of the "eminent E 
persons" from the selection process, if they were found to be 
unsuitable or unworthy of discharging their responsibility. Or 
even if they could not establish their usefulness. It was 
submitted, that this
Court should not throttle the contemplated 
process of selection and appointment of Judges to the higher F 
judiciary, through the NJAC, without it's even having been 
tested. 
117. Mr. T.R. Andhyarujina, Senior Advocate, entered 
appearance on behalf of the State of Maharashtra. It was his G 
contention, while endorsing the submissions advanced on 
behalf of the Union of India, that the impugned Constitution 
(99th Amendment) Act, was a rare event, inasmuch as, the 
Parliament unanimously passed the same, with all parties 
supporting the amendment. He asserted, that there was not a H
398 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
single vote against the amendment, even though it was 
conceded, that there was one Member of Parliament, who had 
abstained~rom voting. Besides the above, it was asserted, 
that even the State legislatures ratified the instant constitutional 
amendment, wherein the ruling party, as also, th~ parties in 
B opposition, supported the amendment. Based on the above, 
it was contended, that the instant constitutional amendment, 
should be treated as the unanimous will of the people, 
belonging to all sections of the society, and therefore the same 
could well be treated, as the will of the nation, exercised by all 
C stakeholders. 
118. It was submitted, that the amendment under 
reference should not be viewed with suspicion. It was pointed 
out, thatArticles 124 and 217 contemplated a dominating role 
o for the executive. It was contended, that the judgment in the 
Second Judges case, vested primacy in the matter of 
appointment of Judges to the higher judiciary, with the Chief 
Justice of India and his collegium of Judges. This manner of 
selection and appointment of Judges to the higher judiciary, 
E according to learned counsel, was unknown to the rest of the 
world, as in no other country, the appointment of Judges is 
made by Judges themselves. Indicating the defects of the 
collegium system, it was asserted, that the same lacked 
transparency, and was not broad based enough. Whilst 
F acknowledging, the view expressed by
J.S. Verma, CJ., that 
the manner of appointment of Judges contemplated by the 
Second and Third Judges cases was very good, it was 
submitted, that J.S. Verma, CJ., himself was disillusioned with 
their implementation, as he felt, that there had been an utter 
G failure on that front. Learned senior counsel submitted, thc:it 
the questions that needed to be answered were, whether there 
was any fundamental illegality in the constitutional amendment? 
Or, whether the appointment of Judges contemplated through 
the NJAC violated the "basic structure" of the Constitution? 
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SUPREME COURT ADVOCATES-ON-RECORD 
399 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
And, whether the "independence of the judiciary" stood 
A 
subverted by the impugned constitutional amendment? It was 
asserted, that it was wrong to assume, that the manner of 
appointment of Judges, had any impact on the "independence 
of the judiciary". In this behalf, it was pointed out, that the 
independence of Judges, did not depend on who appointed 
B 
them. It was also pointed out, that independence of Judges 
depended upon their individual character. Learned counsel 
reiterated the position expounded by Dr. B.R.Ambedkar, during 
the Constituent Assembly debates. He submitted, that the 
concept of "independence of the judiciary" should not be 
C 
determined with reference to the opinion expressed by this 
Court in the Second and Third Judges cases, but should be 
determined with reference to the debates in the Constituent 
Assembly, which led to the crystallization of Articles 124 and 
D 
217, as originally enacted. 
119. Learned counsel placed reliance on Lord Cooke of 
Thomdon in his article titled "Making the Angels Weep", wherein 
he scathingly criticized the Second Judges case. Reference 
was also made to his article "Where Angels Fear to Tread", 
E 
with reference to the Third Judges case. The Court's attention 
was also drawn to the criticism of the Second and Third Judges 
cases, at the hands of H.M. Seervai, Fali S. Nariman and others, 
especially the criticism at the
hands of Krishna Iyer and Ruma 
Pal, JJ., and later even the author of the majority judgment in 
F 
the Second Judges case - J.S. Verma, CJ.. 
It was, 
accordingly, the contention of the learned senior counsel, that 
whilst determining the issue of "independence of the judiciary", 
reference should not be made to either of the above two 
judgments, but should be made to the plain language of ArtiCles 124 G 
and 217. Viewed in the above manner, it was asserted, that there 
would be no question of arriving at the conclusion, that the 
impugned constitutional amendment, violated the basic concepts 
of "separ;:ition of powers" and "independence of the judiciary". H
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[2015] 13 S.C.R. 
A 
120. Even though, there were no guidelines, for 
appointment of the two "eminent persons", emerging from the 
Constitution (99thAmendment)Act, and/or the NJACAct, yet 
it was submitted, that it was obvious, that the "eminent persons" 
to be chosen, would be persons who were well versed in the 
B working of courts. On the Court's asking, learned senior 
counsel suggested, that "eminent persons" for the purpose 
could only be picked out of eminent lawyers, eminent jurists, 
and even retired Judges, or the like. Insofar as the instant 
aspect of the matter is concerned, it is obvious that learned 
C senior counsel had adopted a position, diametrically opposite 
to the one canvassed by the learned Attorney General. Another 
aspect, on which we found a little divergence in the submission 
of Mr. T.R. Andhyarujina was, that in many countries the 
0 
executive participation in the matter of appointment of Judges 
to the higher judiciary, was being brought down. And in some 
countries it was no longer in the hands of the executive. In this 
behalf, the clear contention advanced by the learned senior 
counsel was, that the world over, the process of appointment 
E of Judges to the higher judiciary was evolving, so as to be 
vested in Commissions of the nature of the NJAC. And as 
such, it was wholly unjustified to fault the same, on the ground 
of "independence of the judiciary", when the world over 
Commissions were found to have been
discharging the 
F 
responsibility satisfactorily. 
121. Mr. Tushar Mehta, Additional Solicitor General of 
India, entered appearance on behalf of the State of Gujarat. 
He adopted the submissions advanced by the learned Attorney 
General, as also, Mr. Ranjit Kumar, the learned Solicitor 
G General. It was his submission, that the system innovated by 
this Court for appointment of Judges to the higher judiciary, 
comprising of the Chief Justice and his collegium of Judges, 
was a judicial innovation. It was pointed out, that since 1993 
H when the above system came into existence, it had been
SUPREME COURT ADVOCATES-ON-RECORD 
401 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
followed for appointment of Judges to the higher judiciary, till 
A 
the impugned constitutional amendment came into force. It 
was asserted that, in the interregnum, some conspicuous 
events had taken place, depicting the requirement of a change 
in the method and manner of appointment of Judges to the 
higher judiciary. Learned counsel invited our attention to the 
B 
various Bills which were introduced in the Parliament for the 
purpose of setting up a Commission for appointments of 
Judges to the higher judiciary, as have already been narrated 
herein before. It was pointed out, that several representations 
were received by the Government of the day, advocating the C 
replacement of the "collegium system", with a broad based 
National Judicial Commission, to cater to the long standing 
aspiration of the citizens of the country. The resultant effect 
was, the passing of the Constitution (99th Amendment) Act, D 
and the NJAC Act, by the Parliament. It was submitted, that 
the same came to be passed almost unanimously, with only 
one Member of Rajya Sabha abstaining. It was asserted, that 
this was a rare historical event after independence, when all 
political parties, having divergent political ideologies, voted in 
E 
favour of the impugned constitutional amendment. In addition 
to the above, it was submitted, that as of ·now 28 State 
Assemblies had ratified the Bill. It was
asserted, that the 
constitutional mechanism for appointment of Judges to the 
higher judiciary, had operated for a sufficient length of time, 
F 
and learning from the experience emerging out of such 
operation, it was felt, that a broad based Commission should 
be constituted. It was contended, that the impugned 
constitutional amendment, satisfied all the parameters for 
testing the constitutional validity of an amendment. Learned G 
Additional Solicitor General similarly opposed, the 
submissions advanced at the hands of the petitioners 
challenging the inclusion of the Union Minister in charge qf Law 
and Justice, as a Member of the NJAC. He also found merit 
in the inclusion of two "eminent persons", in the NJAC. It was H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
contended, that the term "eminent persons", with reference to 
appointment of Judges to the higher judiciary, was by itself 
clear and unambiguous, and as and when, a nomination would 
be made, its authenticity would be understood. He distanced 
himself from the submission advanced by Mr. T.R. 
B Andhyarujina, who represented the State of Maharashtra, while 
advancing submission about the identity of those who could 
be nominated as "eminent persons" to the NJAC. It was 
submitted, by placing reliance on Municipal Committee, 
Amritsar v. State of Punjab82, K.A. Abbas v. Union of lndia83, 
C and the A.K. Roy case49, that similar submissions advanced 
before this Court, with reference to vagueness and uncertainty 
of law, were consistently rejected by this Court. According to 
learned counsel, with reference to the alleged vagueness in 
0 
the term "eminent persons", in case the nomination of an 
individual was assailed, a court of competent jurisdiction would 
construe it, as far as may be, in accordance with the intention 
of the legislature. It was asserted, that it could not be assumed, 
that there was a political danger, that if two wrong persons 
E were nominated as "eminent persons" to the NJAC, they would 
be able to tilt the balance against the judicial component of 
the NJAC. It was submitted, that the appointment of the two 
"eminent persons" was in the safe hands, of the Prime Minister, 
the Chief Justice of India
and the Leader of Opposition in the 
F Lok Sabha. In the above view of the matter, the learned 
Additional Solicitor General, concluded with the prayer, that 
the submissions advanced at the hands of the learned counsel 
for the petitioners deserved to be rejected. 
122. Mr. Ravindra Srivastava, Senior Advocate, entered 
G appearance on behalf of the State of Chhattisgarh. He had 
chosen to make submissions divided under eleven heads. 
However, keeping in view the fact, that detailed submissions 
82 (1969) 1 sec 475 
H 
8' (1970) 2 sec 780
SUPREME COURT ADVOCATES-ON-RECORD 
403 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
had already been advanced by counsel who had entered A 
appearance before him, he chose to limit the same. It was the 
primary contention of the learned senior counsel, that the 
impugned constitutional amendment, as also the NJAC Act, 
did not in any manner violate the "basic structure" of the 
Constitution. According to the learned senior counsel, the 
B 
impugned constitutional amendment, furthers and strengthens 
the "basic structure" principle, of a free and independent 
judiciary. It was his submission, that the assertions made at 
the hands of the petitioners, to the effect that the impugned 
constitutional amendment, impinges upon the "basic structure" C 
of the Constitution, and the "independence of the judiciary", 
were wholly misconceived. It was submitted, that this Court 
had not ever held, that the primacy of the judiciary through the 
Chief Justice of India, was an essential component of the 
D 
"independence of the judiciary". It was asserted, that while 
considering the challenge raised by the petitioners to the 
impugned constitutional amendment, it would be wholly 
unjustified to approach the challenge by assuming, that the 
primacy of the judiciary through the Chief Justice of India, would 
E 
alone satisfy the essential components of "separation of power" 
and "independence of the judiciary". It was submitted, that the 
introduction of plurality, in the matter of
appointment of Judges 
to the higher judiciary, was an instance of.independence, rather 
than an instance of interference. With reference to the Members 
F 
of the NJAC, it was submitted, that the same would ensure not 
only transparency, but also a broad based selection process, 
without any ulterior motives. It was asserted, that the adoption 
of the NJAC for selection of Judges to the higher judiciary, 
would result in the selection of the best out of those willing to G 
be appointed. With reference to the participation of the Union 
Minister in charge of Law and Justice, as an ex officio Member 
of the NJAC, it was submitted, that the mere participation of 
one executive representative, would not make the process 
incompatible, with the concept of "independence of the 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A judiciary". In this behalf, emphatic reliance was placed on the 
observations of E.S. Venkataramiah, J., from two paragraphs 
of the First Judges case, which are being extracted hereunder: 
"1033. As a part of this very contention it is urged that the 
B 
c 
D 
E 
Executive should have no voice at all in the matter of 
appointment of Judges of the superior courts in India as 
the independence of the. judiciary which is a basic feature 
of the Constitution would be in serious jeopardy if the 
executive can interfere with the process of their 
appointment. It is difficult to hold that merely because the 
power of appointment is with the executive, the 
independence of the judiciarv would become impaired. The 
true principle is that after such appointment the executive 
should have no scope to interfere with the work of a Judge." 
"1038. The foregoing gives a fairly reliable picture of the 
English system of appointments of Judges. It is thus seen 
that in England the Judges are appointed by the Executive. 
"Nevertheless the judiciary js substantially insulated by 
virtue of rules of strict law, constitutional conventions, 
political practice and professional tradition, from political 
influence." 
It was finally submitted by learned counsel, that a multi-
member constitutional body, was expected to act fairly and 
independently, and not in violation of the Constitution. It was 
F 
contended, that plurality by itself was an
adequate safeguard. 
Reliance in this behalf was placed on T.N. Seshan v. Union of 
lndia84, so as to eventually conclude, that the constitutional 
amendment did not violate the "basic structure" of the 
Constitution, and that, it was in consonance with the concept 
G of a free and independent judiciary, by further strengthening 
the "basic structure" of the Constitution. 
123. Mr. Ajit Kumar Sinha, Senior Advocate, entered 
appearance on behalf of the State of Jharkhand. He asserted, 
H .. (1995) 4 sec 611
SUPREME COURT ADVOCATES-ON-RECORD 
405 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
that he should be taken as having adopted all the submissions A 
addressed, on behalf of the Union of India. While commencing 
his submissions. he placed reliance on Article 124(4) and 
proviso (b) under Article 217(1) to contend, that Judges of the 
higher judiciary, could not be removed except by an order 
passed by the President, after an address by each House of B 
Parliament, supported by a majority of the total membership 
of that House, and by a majority of not less than 2/3rd of the 
Members of the House present and voting, had been presented 
to the President, on the ground of proved misbehaviour or 
incapacity. In this behalf, learned senior counsel placed C 
reliance on Section 16 of the General Clauses Act, 1897, which 
provides that the power to appoint includes the power to 
suspend or dismiss. Read in conjunction with Article 367, which 
mandates, that unless the context otherwise required, the D 
provisions of the General Clauses Act 1897, would apply to 
the interpretation of the provisions of the Constitution, in the 
same manner as they applied tQ. the interpretation of an Act of 
the legislature. Based on the aforesaid, it was sought to be 
asserted, that in the absence of any role of the judiciary in the E 
matter of removal of a Judge belonging to the higher judiciary, 
the judiciary could not demand primacy in the matter of 
appointment of Judges of the higher
judiciary, as an integral 
component of the "independence of the judiciary". It was 
submitted, on the issue of "independence of the judiciary", the 
F 
question of manner of appointment was far less important, than 
the question of removal from the position of Judge. Adverting 
to the manner of removal of Judges of the higher judiciary, in 
accordance with the provisions referred to hereinabove, it was 
asserted, that in the matter of removal of a Judge from the 
G 
higher judiciary, there was no judicial participation. It was solely 
the prerogative of the legislature. That being so, it was contended, 
that the submissions advanced at the behest of the petitioners, 
that primacy in the matter of appointment of Judges, should 
be vested in the judiciary, was nothing but a fallacy. 
H 
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[2015) 13 S.C.R. 
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124. The second contention advanced by learned senior 
counsel was, that it should not be assumed as if the NJAC, 
would take away the power of appointment of Judges to the 
higher judiciary, from the judiciary. It was submitted, that three 
of the six Members of the NJAC belonged to the judiciary, and 
B that, one of them, namely, the Chief Justice of India was to 
preside over the proceedings of the NJAC, as its Chairperson. 
Thus viewed, it was submitted, that it was wholly misconceived 
on the part of the petitioners to contend, that the power of 
c 
appointment of Judges, had been taken away from the 
judiciary, and vested with the executive. It was submitted, that 
there was nothing fundamentally illegal or unconstitutional in 
the manner of appointment of Judges to the higher judiciary, 
as contemplated by the impugned constitutional amendment. 
D It was also contended, that the manner of appointment of 
Judges, contemplated through the NJAC, could not be 
perceived as violative of the "basic structure" of the 
Constitution, by the mere fact, that any two Members of the 
NJAC can veto a proposal of appointment of a Judge to the 
E higher judiciary. And that, the above would result in the 
subversion of the "independence of the judiciary". In support 
of the aforestated submissions, it was highlighted, that the 
manner of appointment of Judges, which was postulated in 
the judgments rendered in the Second and Third
Judges cases, 
F do not lead to the inference, that if the manner of appointment 
as contemplated therein was altered, it would violate the "basic 
structure" of the Constitution. 
125. Mr. Yatindra Singh, learned Senior Advocate, 
G 
entered appearance as an intervener. He contended, that the 
preamble to the Constitution of India, Article 50 (which provides 
for separation of the judiciary from the executive), the oath of 
office of a Judge appointed to the higher judiciary, the security 
of his tenure including the fixed age of retirement, the protection 
H of the emoluments payable to Judges including salary and 
"-
J
< 
SUPREME COURT ADVOCATES-ON-RECORD 
407 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
leave, etc., the fact that the Judges appointed to the higher A 
judiciary served in Courts of Record, having the power to punish 
for contempt, and the provisions of the Judicial Officers 
Protection Act, 1850, and the Judges (Protection)Act, 1985, 
which grant immunity to them from civil as well as criminal . 
proceedings, are incidents, which ensured "independence of B 
the judiciary". It was submitted, that the manner of appointment 
of Judges to the higher judiciary, had nothing to do with 
"independence of the judiciary". It was pointed out, that insofar 
as the determination of the validity of the impugned 
constitutional amendment was concerned, it was not essential C 
to make a reference to the judgments rendered by this Court 
in the Second and Third Judges cases. It was submitted, that 
the only question that needed to be determined insofar as the 
present controversy is concerned, was whether, the manner of 0 
appointment postulated through the NJAC, would interfere with 
"independence of Judges". In this behalf, it was firstly asserted, 
that neither the Second nor the Third Judges case had 
concluded, that the manner of appointment of Judges would 
constitute the "basic structure" of the Constitution. Nor that, 
E 
the manner. of appointment of Judges to the higher judiciary 
as postulated in the Second and Third Judges cases, if 
breached, would violate the "basic
structure" of the Constitution. 
It was submitted, that the judgments rendered in the Second 
and Third Judges cases merely interpreted the law, as it then 
F 
existed. It was asserted, that the above judgments did not 
delve into the question, whether any factor(s) or feature(s) 
considered, were components of the "basic structure" of the 
Constitution. 
126. Learned senior counsel, also placed reliance on 
G 
the manner of appointment of Judges in the United States of 
America, Australia, New Zealand, Canada, and Japan to 
contend, that in all these countries Judges appointed to the 
higher judiciary, were discharging their responsibilities 
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408 
SUPREME COURT REPORTS 
[2015) 13S.C.R. 
A 
independently, and as such, there was no reason or justification 
for this Court to infer, if the manner of appointment of Judges 
was altered from the position contemplated in the Second and 
Third Judges cases, to the one envisaged by the impugned 
. constitutional amendment, it would affect the "independence 
B of the Judges". It was submitted, that different countries in the 
world had adopted different processes of selection for 
appointment of Judges. Each country had achieved 
"independence of the judiciary", and as such, it was 
presumptuous to think that Judges appointed by Judges alone, 
C can discharge their duties independently. 
127. Learned senior counsel also pointed out, that the 
"collegium system" was not the only process of appointment 
of Judges, which could achieve the "independence of the 
D judiciary". Had it been so, it would have been so concluded in 
the judgments rendered in the Second and Third Judges cases. 
It was the submission of the learned senior counsel, that 
"independence of the judiciary" could be achieved by other 
methods, as had been adopted in other countries, or in a 
E 
manner, as the Parliament deemed just and prop_er for India. 
It was asserted, that the manner of appointment contemplated 
by the impugned constitutional amendment had no infirmity, 
with reference to the issue of "independence of the judiciary", 
on account of the fact, that there was hardly any participation 
F 
in
the NJAC, at the behest of organs other than the judiciary. 
128. Last of all, learned senior c9unsel contended, that 
the "collegium system" did not serve the purpose of choosing 
the best amongst the available. The failure of the "collegium 
G system", according to the learned senior counsel, was apparent 
from the opinion expressed by V.R. Krishna Iyer, J. in the 
foreword to the book "Story of a Chief Justice", authored by 
U.L. Bhat, J. The "collegium system" was also adversely 
commented upon, by Ruma Pal, J., while delivering the 5th V.M. 
H Tarkunde Memorial Lecture on the topic "An Independent
SUPREME COURT ADVOCATES-ON-RECORD 
409 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Judiciary". Reference in this behalf, was also made to the A 
observations made by S.S. Sodhi, J., a former Chief Justice 
of the Allahabad High Court, in his book "The Other Side of 
Justice", and the book authored by Fali S. Nariman, in his 
autobiography "Before Memory Fades". It was contended, that 
the aforesaid experiences, and the adverse all around 
B 
comments, with reference to the implementation of the 
"collegium system", forced the Parliament to enact the 
Constitution (99th Amendment) Act, which provided for a far 
better method for selection and appointment of Judges to the 
higher judiciary, than the procedure contemplated under the C 
"collegium system". It was submitted, that whilst the NJAC did 
not exclude the role of the judiciary, it included two "eminent 
persons" with one executive nominee, namely, the Union 
Minister in charge of Law and Justice, as Members of the 
NJAC. Since the role of the executive/Government in the NJAC D 
was minimal, it was preposterous to assume, that the executive 
would ever be able to have its way, in the matter of appointment 
of Judges to the higher judiciary. It was submitted, that the 
NJAC would fulfill the objective of transparency, in the matter E 
of appointment of Judges, and at the same time, would make 
the selectiori process broad based. While concluding his 
submissions, it was also suggested by the learned counsel, 
that
the NJAC should be allowed to operate for some time, so 
as to be tested, before being scrapped at its very inception. 
F 
And that, it would be improper to negate the process even · 
before the experiment had begun. 
129. Mr. Dushyant A. Dave, Senior Advocate and 
President of the Supreme Court Bar Association, submitted 
that the only question that needed to be adjudicated upon, with G 
reference to the present controversy was, whether the manner 
of appointment of Judges to the higher judiciary, through the 
NJAC, would fall within the constitutional frame work? Learned· 
senior counsel commenced his submissions by highlighting 
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SUPREMI; COURT REPORTS 
[2015] 13 S.C.R. 
A the fact, that parliamentary democracy contemplated through 
the provisions of the Constitution, was a greater basic concept, 
as compared to the "independence of the judiciary". It was 
submitted, that the manner in which submissions had been 
advanced at the behest of the petitioners, it seemed, that the 
B matter of appointment of Judges to the higher judiciary, is 
placed at the highest pedestal, in the "basic structure doctrine". 
Learned senior counsel seriously contested the veracity of the 
aforesaid belief. It was submitted, that if those representing 
the petitioners, were placing reliance on the judgment rendered 
C in the Second Judges case, to project the aforesaid principle, 
it was legally fallacious, to do so. The reason, according to 
learned senior counsel was, that the judgment in the Second 
Judges case, was not premised on an interpretation of any 
0 
constitutional provision(s), nor was it premised on an elaborate 
discussion, with reference to the subject under consideration, 
nor was reliance placed on the Constituent Assembly debates. 
It was pointed out, that the judgment in the Second Judges 
case was rendered, on the basis of the principles contemplated 
E by the authors of the judgment, and not on any principles of 
law. 
It was accordingly asserted, that the .Petitioners' 
contentions, deserved outright rejection. 
130. Learned senior counsel invited this Court's attention 
to the fact, that the
judgments rendered in the Kesavananda 
F .Bharati case10, the Minerva Mills Ltd. case33, and l.R. Coelho 
v. State of Tamil Nadu85, wherein the concept of"basic structure" 
of the Constitution was formulated and given effect to, were all 
matters wherein on different aspects, the power of judicial 
review had been suppressed/subjugated. It was submitted, 
G that none of the aforesaid judgments could be relied upon to 
determine, whether the manner of appointment of the Judges 
to the higher judiciary, constituted a part of the "basic structure" 
of the Constitution. ·it was therefore, that reliance was placed 
H 
" (2007) 2 sec 1
SUPREME COURT ADVOCATES-ON-RECORD 
411 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
on Article 368 to contend, that the power to amend the A 
Constitution, had been described as a "constituent power", 
i.e., a power similar to the one which came to be vested in the 
Constituent Assembly, for drafting the Constitution. It was 
submitted, that no judgment could negate or diminish the 
"constituent power" vested with the Parliament, under Article 
B 
368. Having highlighted the aforesaid factual position, learned 
senior counsel advanced passionate submissions with 
reference to various appointments made, on the basis of the 
procedure postulated in the Second and Third Judges cases. 
Reference was pointedly made to the appointment of a C 
particular Judge to this Court as well. It was pointed out, that 
the concerned Judge had decided a matter, by taking seisin 
of the· same, even though it was not posted for hearing before 
him. Thereafter, even though a review petition was filed to D 
correct the anomaly, the same was dismissed by the concerned · 
Judge. While projecting his concern with reference to the 
appointment of Judges to the higher judiciary under the 
collegium system, learned senior counsel emphatically pointed 
out, that the procedure in vogue before the impugned 
E 
constitutional amendment, could be described as a closed-
door process, where appointments were made in a hush-hush 
manner. He stated that the stakeholders, including prominent 
lawyers with
unimpeachable integrity, were never consulted. It 
was submitted, that inputs were never sought, from those who 
F 
could render valuable assistance, forthe selection of the best, 
from amongst those available. It was pointed out, that the 
process of appointment of Judges under the collegium system, 
was known to have been abused in certain cases, and that, 
there were certain inherent defects therein. It was submitted, G 
that the policy of selection, and the method of selection, were 
not justiciable, being not amenable to judicial review, and as 
such, no challenge could be raised to· the wrongful 
appointments made under the "collegium system". 
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A 
131. On the subject of the manner. of interpreting the 
Constitution, with reference to appointments to the higher 
judiciary, reliance was placed on Registrar (Admn), High Court 
of Orissa, Cuttack v. Sisir Kanta Satapathy32, to contend, that 
in spite of having noticed the judgments rendered in the Second 
B 
Judges case, this Court struck a note of caution, with reference 
to the control, vested in the High Courts, over the subordinate 
judiciary. It was pointed out, that it had been held, that control 
had to be exercised without usurping the power vested with 
the executive, especially the power under Articles 233, 234 
C and 235. It is submitted, that the power of the executive in the 
matter of appointments of Judges to the higher judiciary, could 
not be brushed aside, without any justification. It was 
contended, that it was improper to assume, that only the 
0 
judiciary could appoint the best Judges, and the executive or 
the legislature could not. 
132. Learned senior counsel also made an impassioned 
reference, to the failure of the judiciary, to grant relief to the 
victims of the 1984 riots in Delhi, and the 2003 riots in Gujarat. 
E 
It was also asserted, that justice had been denied to those 
who deserved it the most, namely, the poor citizenry of this 
country. It was pointed out, that the manner of appointment of 
Judges, through the "collegium system", had not produced 
Judges of the kind who were sensitive
to the rights of the poor 
F 
and needy. It was the assertion of the learned senior counsel, 
that the new system brought in for selection and appointment 
of Judges to the higher judiciary, should be tried and tested, 
and in case, certain parameters had to be provided for, to 
ensure its righteous functioning to achieve the best results, it 
G was always open to this Court to provide such guidelines. 
V. THE DEBATE AND THE DELIBERATION: 
I. 
133. The Union Government, as also, the participating 
H State Governments, were all unanimous in their ventilation, that
SUPREME COURT ADVOCATES-ON-RECORD 
413 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the impugned constitutional amendment, had been passed 
A 
unanimously by both the Lok Sabha and the Rajya Sabha, 
wherein parliamentarians from all political parties had spoken 
in one voice. The Lok Sabha had passed the Bill with 367 
Members voting in favour of the Bill, and no one against it (the 
Members from the AIADMK- 37 in all, had however abstained 
B 
from voting). The Rajya Sabha passed the Bill with 179 
Members voting in favour of the Bill, and one of its Members-
Ram Jethmalani, abstaining. It was submitted, that on account 
of the special procedure prescribed under the proviso to Article 
. 368(2), the Bill was ratified in no time by half the State C 
Legislatures. Mr. Tushar Mehta, learned Additional Solicitor 
General of India, had informed the Court, that as many as 
twenty-eight State Assemblies, had eventually ratified the Bill. 
It was assented to by the President on 31.12.2014. It was 
therefore asserted, that the Constitution (99th Amendment) Act D 
manifested, the unanimous will of the people, and therefore, 
the same must be deemed to be expressive of the desire of 
the nation. Based on the fact, that impugned constitutional 
amendment reflected the will of the people, it was submitted, 
E 
that it would not be appropriate to test it through a process of 
judicial review, even on the touchstone of the concept of "basic 
structure". 
134. Learned counsel
representing the petitioners, 
described the aforesaid assertion as misplaced. The 
F 
contention was repulsed by posing a query, whether the same 
was the will of the nation of the "haves", or the will of the nation 
of the "have-nots"? Another question posed was, whether the 
impugned constitutional amendment represented the desire 
of the rich, the prosperous and the influential, or the poor and 
G 
the needy, whose conditions, hopes and expectations had 
nothing to do with the impugned constitutional amendment? It 
was submitted, that the will of the nation, could only be decided 
by a plebiscite or a referendum. It was submitted, that the 
H
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[2015] 13S.C.R. 
A 
petitioners would concede, that it could certainly be described 
as the overwhelming will of the political-executive. And no 
more. It was asserted, that the impugned constitutional 
amendment had an oblique motive. The amendment was 
passed unanimously, in the opinion of the petitioners, for the 
B simple reason, that the higher judiciary corrects the actions of 
the executive and the legislatures. This, it was pointed out, 
bothers the political-executive. 
135. With reference to the will of the people, it was 
c submitted, that the same could easily be ascertainable from 
the decision rendered in the L.C Golak Nath case41 , wherein a 
eleven-Judge Bench declared, that a constitutional amendment 
was "law" with reference to Part Ill of the Constitution, and 
therefore, was subject to the constraint of the fundamental 
o rights, in the said part. It was pointed out, that the Parliament, 
had invoked Article 368, while passing the Constitution (25th 
Amendment)Act, 1971. By the above amendment, a law giving 
effect to the policy of the State under Articles 39(b) and 39(c) 
could not be declared void, on the ground that it was 
E inconsistent with the fundamental rights expressed through 
Articles 14, 19 and 31. Article 31C also provided, that a 
legislative enactment containing such a "declaration", namely, 
that it was for giving effect to the above policy of the State, 
would not be called in question on the ground, that it
did not 
F factually gave effect to such policy. It was pointed out, that this 
Court in the Kesavananda Bharati case10, had overruled the 
judgment in the l.C. Golak Nath case41 • This Court, while 
holding as unconstitutional the part of Article 31 C, which denied 
judicial review, on the basis of the "declaration" referred to 
G above, also held, that the right of judicial review was a part of 
the "basic structure" of the Constitution, and its denial would 
result in the violation of the "basic structure" of the Constitution. 
136. Proceeding further, it was submitted, that on 
H 11.6.1975, the election of Indira Gandhi to the Lok Sabha was
SUPREME COURT ADVOCATES-ON-RECORD 
415 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.) 
set aside by the Allahabad High Court. That decision was A 
assailed before the Supreme Court. Pending the appeal, the 
Parliament passed the Constitution (391h Amendment) Act, 
1975. By the above amendment, election to the Parliament, of 
the Prime Minister and the Speaker could not be assailed, nor 
could the election be held void, or be deemed to have ever B 
become void, on any of the grounds on which an election could 
be declared void. In sum and substance, by a deeming fiction 
of law, the election of the Prime Minister and the Speaker would 
continue to be valid, irrespective of the defect(s) and illegalities 
therein. By the above amendment, it was provided, that any C 
pending appeal before the Supreme Court would be disposed 
of, in conformity with the provisions of the Constitution (391h 
Amendment) Act, 1975. The aforesaid amendment was struck 
down by this Court, by declaring that the same amounted to a 
D 
negation of the "rule of law", and also because, it was "anti-
democratic", and as such, violated the "basic structure" of the 
Constitution. It was submitted, that as an answer to the striking 
down of material parts of Article 39A of the Constitution, the 
Parliament while exercising its power under Article 368, had 
E 
passed the Constitution (42nd Amendment) Act, 1976, by an 
overwhelming majority. Through the above amendment, the 
Parliament added clauses (4) and
(5) to Article 368, which 
read as under: 
"(4) No amendment of this Constitution (including the 
F 
provisions of Part Ill) made or purporting to have been made 
under this article whether before or after the 
commencement of section 55 of the Constitution (Forty-
second Amendment) Act, 1976 shall be called in question 
in any court on any ground. 
G 
(5) For the removal of doubts, it is hereby declared that 
there shall be no limitation whatever on the constituent 
power of Parliament to amend by way of addition, variation 
or repeal the provisions of this Constitution under this article." 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
The aforesaid amendment was set aside, as being 
unconstitutional, by a unanimous decision, in the Minerva Mills 
Ltd. case33• It was held, that the amending power of the 
Parliament under Article 368 was limited, inasmuch as, it had 
no right to repeal or abrogate the Constitution, or to destroy its 
B "basic or essential features". 
137. Learned senior counsel pointed out, that over the 
years, yet another stratagem was adopted by the Parliament, 
for avoiding judicial interference in the working of the 
c Parliament. In this behalf, reference was made to the 
Constitution (45th Amendment) Bill, 1978, wherein it was 
provided, that even the "basic structure" of the Constitution 
could be amended, on its approval through a referendum. The 
amendment added a proviso to Article 368(2) postulating, that 
o a law compromising with the "independence of the judiciary" 
would require ratification by one half of the States, and 
thereupon, would become unassailable, if adopted by a simple 
majority vote in a referendum. Through its aforesaid action, 
the Government of the day, revealed its intention to 
E compromise even the "independence of the judiciary". Though 
the above Bill was passed by an overwhelming majority in the 
Lok Sabha, it could not muster the two-thirds majority required 
in the Rajya Sabha. It was pointed out, that the propounder of 
the Bill was the then Janata Party Government, and not the 
F 
Congress Party
Government (which was responsible for the 
emergency, and the earlier constitutional amendments). It was 
therefore asserted, that· it should not surprise anyone, if all 
political parties had spoken in one voice, because all political 
parties were united in their resolve, to overawe and subjugate 
G the judiciary. 
138. It was submitted, that the intention of the legislature 
and the executive, irrespective of the party in power, has been 
to invade into the "independence of the judiciary". It was further 
H submitted, that attempts to control the judiciary have been more
SUPREME COURT ADVOCATES-ON-RECORD 
417 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
pronounced in recent times. In this behalf, the Court's attention · A 
was drawn to the judgments in Lily Thomas v. Union of lndia86, 
and Chief Election Commissioner v. Jan Chaukidar87• It was 
pointed out, that in the former judgment, this Court held as 
invalid and unconstitutional, Section 8(4) of the Representation 
of the People Act, 1951, which provided inter a/ia, that a 
B 
Member of Parliament convicted of an offence and sentenced 
to imprisonment for not less than two years, would not suffer 
the disqualification contemplated under the provision, for a 
period of three months from the date of conviction, or if the 
conviction was assailed by way of an appeal or revision - till C 
such time, as the appeal or revision was disposed of. By the 
former judgment, convicted Members became disqualified, 
and had to vacate their respective seats, even though, the 
conviction was under challenge. In the latter judgment, this Court D 
upheld the order passed by the Patna High Court, declaring 
that a person who was confined to prison, had no right to vote, 
by virtue of the provisions contained in Section 62(2) of the 
Representation of the People Act, 1951. Since he/she was 
not an elector, therefore it was held, that he/she could not be 
E 
considered as qualified, to contest elections to either House 
of Parliament, or to a Legislative Assembly of a State. 
139. It was pointed out,
that Government (then ruled by 
the U.P.A.) introduced a series of Bills, to invalidate the 
judgment rendered by this Court in the Jan Choukidar case87• 
F 
This was sought to be done by passing the Representation of 
the People (Amendment and Validation)Act, 2013, within three 
months of the rendering of the above judgment. It was submitted, 
that it was wholly misconceived for the learned counsel 
representing the Union of India, and the concerned States to G 
contend, that the determination by the Parliament and the State 
Legislatures, with reference to constitutional amendments, 
•• (2013) 1 sec 653 
., (2013) 1 sec 507 
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418 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
could be described as actions which the entire nation desired, 
or represented the will of the people. It was submitted, that 
what was patently unconstitutional, could not constitute either 
the desire of the nation, or the will of the people. 
B 
140. Referring to the "collegium system" of appointing 
Judges to the higher judiciary, it was pointed out, that the same 
was put in place by a decision rendered by a nine-Judge 
Bench, in the Second Judges case, through which the 
"independence of the judiciary" was cemented and 
c strengthened. This could be achieved, by vesting primacy with 
the judiciary, in the matter of selection and appointment of 
Judges to the higher judiciary. It was further pointed out, that 
the collegium system has been under criticism, on account of 
lack of transparency. It was submitted, that taking advantage 
o of the above criticism, political parties across the political 
spectrum, have been condemning and denouncing the 
"collegium system". Yet again, it was pointed out, that the 
Parliament in its effort to build inroads into the judicial system, 
had enacted the impugned constitutional amendment, for 
E interfering with the judicial process. This oblique motive, it was 
asserted, could not be described as the will of the people, or 
the will of the nation. 
141. In comparison, while making a reference to the 
F 
impugned constitutional amendment and the NJAC Act, it was 
equally seriously
contended, that the constitutional amendment 
compromised the "independence of the judiciary", by negating 
the "primacy of the judiciary". With reference to the insinuations 
levelled by the Union of India and the concerned State 
G Governments, during the course of hearing, reference was 
made to an article bearing the title "Structure Matters: The 
Impact of Court Structure on the Indian and U.S. Supreme 
Courts", authored by Nick Robinson. Reference was made to 
the following expositions made therein: 
H
SUPREME COURT ADVOCATES-ON-RECORD 
419 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"Given their virtual self-selection judges on the Indian 
A 
Supreme Court are viewed as less politicised than in the 
United States. The panel structure of the Court also 
prevents clear ideological blocks from being perceived 
{even if there are more "activist" or "conservative" judges) 
there is not the sense that all the judges have to assemble 
B 
together for a decision to be legitimate or fair in the eyes of 
the public. Quite the opposite. judges are viewed as 
bringing different skills or backgrounds that should be 
selectively utilized." 
142. It was submitted, that the method of appointment, 
evolved through the Second and Third Judges cases, had been 
hailed by several jurists, who had opined that the same could 
c 
be treated as a precedent worthy of emulation by the United 
Kingdom. Reference in this behalf was also made to, the D 
opinion of Lord Templeman, a Member of the House of Lords 
in the United Kingdom. 
143. Having given our thoughtful consideration to the 
position assumed by the learned counsel representing the rival 
parties, it is essential to hold, that every constitutional 
E 
amendment passed by the Parliament, either by following the 
ordinary procedure contemplated under Article 368(2), or the 
special procedure contemplated in the proviso to Article 
368(2), could in a sense of understanding, by persons not 
conversant with the legal niceties of the
issue, be treated as 
F 
the will of the people, for the simple reason, that 
parliamentarians are considered as representatives of the 
people. In our view, as long as the stipulated majority supports 
a constitutional amendment, it would be treated as a G 
constitutional amendment validly passed. Having satisfied the 
above benchmark, it may be understood as an expression of 
the will of the people, in the sense noticed above. The strength 
and enforceability of a constitutional amendment, would be 
just the same, irrespective of whether it was passed by the 
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420 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
bare minimum majority postulated therefor, or by a substantial 
majority, or even if it was approved unanimously. What is 
important, is to keep in mind, that there are declared limitations, 
on the amending power conferred on the Parliament, which 
cannot be breached. 
B 
144. An ordinary legislation enacted by the Parliament 
with reference to subjects contained in the Union List or the 
Concurrent List, and likewise, ordinary legislation enacted by 
State Legislatures on subjects contained in the State List and 
c the Concurrent List, in a sense of understanding noticed above, 
could be treated as enactments made in consonance with the 
will of the people, by lay persons not conversant with the legal 
niceties of the issue. Herein also, there are declared limitations 
on the power of legislations, which cannot be violated. 
D 
145. In almost all challenges, raised on the ground of 
violation of the "basic structure" to constitutional amendments 
made under Article 368, and more particularly, those requiring 
the compliance of the special and more rigorous procedure 
expressed in the proviso under Article 368(2), the repeated 
E · assertion advanced at the hands of the Union, has been the 
same. It has been the contention of the Union of India, that an 
amendment to the Constitution, passed by following the 
procedure expressed in the proviso to Article 368(2), 
F 
constituted the will of the people, and the same was not
subject 
to judicial review. The same argument had been repeatedly 
rejected by this Court by holding, that Article 368 postulates 
only a "procedure" for amendment of the Constitution, and that, 
the same could not be treated as a "power" vested in the 
G Parliament to amerid the Constitution, so as to alter, the "core" 
of the Constitution, which has also been described as, the 
"basic features/basic structure" of the Constitution. The above 
position has been projected, through the judgments cited on 
behalf of the petitioners, to which reference has been made 
H hereinabove.
SUPREME COURT ADVOCATES-ON-RECORD 
421 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
146. Therefore, even though the Parliament may have A 
passed the Constitution (121st Amendment) Bill, with an 
overwhelming majority, inasmuch as, only 37 Members from 
the AIADMK had consciously abstained from voting in the Lok 
Sabha, and only one Member of the Rajya Sabha - Ram 
Jethmalani, had consciously abstained from voting in favour B 
thereof, it cannot be accepted, that the same is exempted from 
judicial review. The scope of judicial review with reference to · 
a constitutional amendment and/or an ordinary legislation, 
whether enacted by the Parliament or a State Legislature, 
cannot vary, so as to adopt different standards, by taking into C 
consideration the strength of the Members of the concerned 
legislature, which had approved and passed the concerned 
Bill. If a constitutional amendment breaches the "core" of the 
Constitution or destroys its "basic or essential features" in a D 
manner which was patently unconstitutional, it would have 
crossed over forbidden territory. This aspect, would 
undoubtedly fall within the realm of judicial review. In the above 
view of the matter, it is imperative to hold, that the impugned 
constitutional amendment, as also, the NJAC Act, would be 
E 
subject to judicial review on the touchstone of the "basic 
structure" of the Constitution, and the parameters laid down 
by this Court in that behalf, even though the impugned
constitutional amendment may have been approved and 
passed unanimously or by an overwhelming majority, and 
F 
notwithstanding the ratification thereof by as many as twenty-
eight State Assemblies. Accordingly, we find no merit in the 
contention advanced by the learned counsel for the 
respondents, that the impugned constitutional amendment is 
not assailable, through a process of judicial review. 
G 
II. 
147. It was the submission of the learned Attorney 
General, that the "basic features/basic structure" of the 
Constitution, should only be gathered from a plain reading of H
422 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A the provision(s) of the Constitution, as it/they was/were originally 
enacted. In this behalf, it was acknowledged by the learned 
counsel representing the petitioners, that the scope and extent 
of the "basic features/basic structure" of the Constitution, was 
to be ascertained only from the provisions of the Constitution, 
B as originally enacted, and additionally, from the interpretation 
placed on the concerned provisions, by this Court. The above 
·qualified a·ssertion made on behalf of the petitioners, was 
unacceptable to the learned counsel representing the 
respondents. 
c 
148. The above disagreement, does not require any 
detailed analysis. The instant aspect, stands determined in 
the M. Nagaraj case36, wherein it was held as under: 
" ... The question is -whether the impugned amendments 
D 
discard the original Constitution. It was vehemently uraed 
on behalf of the petitioners that the Statement of Objects 
and Reasons indicates that the impugned amendments 
have been promulgated by Parliament to overrule the 
decisions of this Court. We do not find any merit in this 
E 
argument. Under Article 141 of the Constitution the 
pronouncement of this Court is the law of the land." 
149. The cause, effect and the width of a provision, which 
is the basis of a challenge, may sometimes not be apparent 
F from a plain reading thereof. The interpretation placed by this 
Court on a particular provision, would most certainly
depict a 
holistic understanding thereof, wherein the plain reading would 
have naturally been considered, but in addition thereto, the 
vital silences hidden therein, based on a harmonious 
G construction of the provision, in conjunction with the surrounding 
provisions, would also have been taken into consideration. The 
mandate of Article 141, obliges every court within the territory 
of India, to honour the interpretation, conclusion, or meaning 
assigned to a provision by this Court. It would, therefore be 
H rightful, to interpret the provisions of the Constitution relied
SUPREME COURT ADVOCATES-ON-RECORD 
423 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
upon, by giving the concerned provisions, the meaning, 
A 
understanding and exposition, assigned to them, on their 
interpretation by this Court. In the above view of the matter, it 
would neither be legal nor just, to persist on an understanding 
of the concerned provision(s), merely on the plain reading 
thereof, as was suggested on behalf of the respondents. Even B 
on a plain reading of Article 141, we are obligated, to read the 
provisions of the Constitution, in the manner they have been 
interpreted by this Court. 
150. The manner in which the term "consultation" used in c 
Articles 124, 217 and 222 has been interpreted by the Supreme 
Court, has been considered at great length in the "Reference 
Order'', and therefore, there is no occasion for us, to re-record 
the same yet again. Suffice it to notice, that the term 
"consultation" contained in Articles 124, 217 and 222 will have D 
to be read as assigning primacy to the opinion expressed by 
the Chief Justice of India (based on a decision, arrived at by a 
collegium of Judges), as has been concluded in the "Reference 
Order". In the Second and Third Judges cases, the above 
provisions were interpreted by this Court, as they existed in 
E 
their original format, i.e., in the manner in which the provisions 
were adopted by the Constituent Assembly, on 26.11.1949 (-
which took effect on 26.01.1950). Thus viewed, we reiterate,
that in the matter of appointment of Judges to the higher 
judiciary, and also, in the matter of transfer of Chief Justices 
F 
and Judges from one High Court to any other High Court, under 
Articles ~24, 217 and 222, primacy conferred on the Chief 
Justice of India and his collegium of Judges, is liable to be 
accepted as an integral constituent of the above provisions 
(as originally enacted). Therefore, when a question with 
G 
reference to the selection and appointment (as also, transfer) 
of Judges to the higher judiciary is raised, alleging that the 
"independence of the judiciary" as a "basic feature/structure" 
of the Constitution has been violated, it would have to be H
424 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A ascertained whether the primacy of the judiciary exercised 
through the Chief Justice of India (based on a collective 
wisdom of a collegium of Judges), had been breached. Then 
. alone, would it be possible to conclude, whether or not, the 
"independence of the judiciary" as an essential "basic feature" 
B of the Constitution, had been preserved (-and had not been 
breached). 
Ill. 
151. We have already concluded in the "Reference 
C Order", that the term "consultation" used in Articles 124, 217 
and 222 (as originally enacted) has to be read as vesting 
primacy in the judiciary, with reference to the decision making 
process, pertaining to the selection and appointment of Judges 
to the higher judiciary, and also, with reference to the transfer 
D of Chief Justices and Judges of one High Court, to another. 
For arriving at the above conclusion, the following parameters 
were taken into consideration: 
(i) Firstly, reference was made to four judgments, namely, the 
E Samsher Singh case11, rendered in 1974 by a seven-Judge 
Bench, wherein keeping in mind the cardinal principle - the 
"independence of the judiciary", it was concluded, that 
consultation with the highest dignitary in the judiciary-the Chief 
Justice of India, in practice meant, that the last word must 
F belong to the Chief Justice of India, i.e., the primacy in the 
matter of appointment of Judges to the higher judiciary must 
rest with the judiciary. The above
position was maintained in 
the Sankalchand Himatlal Sheth case5 in 1977 by a five-Judge 
Bench, wherein it was held, that in all conceivable cases, 
G advice tendered by the Chief Justice of India (in the course of 
his "consultation"), should principally be accepted by the 
Government of India, and that, if the Government departed from 
the counsel given by the Chief Justice of India, the Courts would 
have an opportunity to examine, if any other extraneous 
H
SUPREME COURT ADVOCATES-ON-RECORD 
425 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
circumstances had entered into the verdict of the executive. In 
A 
the instant judgment, so as to emphasize the seriousness of 
the matter, this Court also expressed, that it expected, that the 
above words would not fall on deaf ears. The same position 
was adopted in the Second Judges case rendered in 1993 by 
a nine-Judge Bench, by a majority of 7:2, which also arrived at B 
the conclusion, that the judgment rendered in the First Judges 
case, did not lay down the correct law. M.M. Punchhi, J., (as 
he then was) one of the Judges on the Bench, who supported 
the minority opinion, also endorsed the view, that the action of 
the executive to put off the recommendation(s) made by the 
C 
Chief Justice of India, would amount to an act of deprival, 
"violating the spirit of the Constitution". In sum and substance 
therefore, the Second Judges case, almost unanimously 
concluded, that in the matter of selection and appointment of D 
Judges to the higher judiciary, primacy in the decision making 
process, unquestionably rested with the judiciary. Finally, the 
Third Judges case, rendered in 1998 by another nine-Judge 
Bench, reiterated the position rendered in the Second Judges 
case. 
E 
(ii) Secondly, the final intent emerging from the Constituent 
Assembly debates, based inter a/ia on the concluding remarks 
expressed by Dr. B. R. Ambedkar, maintained that the judiciary 
must be
independent of the executive. The aforesaid position 
came to be expressed while deliberating on the subject of F 
"appointment" of Judges to the higher judiciary. Dr. B.R. 
Ambedkarwhile responding to the sentiments expressed by° 
K.T. Shah, K.M. Munshi, Tajamul Husain,Alladi Krishnaswami 
Aayar and Ananthasayanam Ayyangar, noted the view of the 
G 
Constituent Assembly, that the Members were generally in 
agreement, that "independence of the judiciary", from the 
executive "should be made as clear and definite as it could be 
made by law". The above assertion made while debating on 
the issue of appointment of Judges to the Supreme Court, 
H
426 
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[2015] 13S.C.R. 
A 
effectively resulted in the acknowledgement, that the issue of 
"appointment" of the Judges to the higher judiciary, had a direct 
nexus with "independence of the judiciary". Dr. B.R. Ambedkar 
declined the proposal of adopting the manner of appointment 
of Judges, prevalent in the United Kingdom and in the United 
B States of America, and thereby, rejected the subjugation of 
the process of selection and appointment of Judges to the 
higher judiciary, at the hands of the executive and the legislature 
respectively. While turning down the latter proposal, Dr. B.R. 
Ambedkar was suspicious and distrustful, that in such an 
C eventuality, appointments to the higher judiciary, could be 
impacted by "political pressure" and "political considerations". 
(iii) Thirdly, the actual practice and manner of appointment of 
Judges to the higher judiciary, emerging from the parliamentary 
D debates, clearly depict, that absolutely all Judges (except in 
one case) appointed since 1950, had been appointed on the 
advice of the Chief Justice of India. It is therefore clear, that 
the political-executive has been conscious .of the fact, that the 
issue of appointment of Judges to the higher judiciary, 
E mandated the primacy of the judiciary, expressed through the 
Chief Justice of India. In this behalf, even the learned Attorney 
General had conceded, that the supersession of senior Judges 
of the Supreme Court, at the time of the appointment
of the 
Chief Justice of India in 1973, the mass transfer of Judges of 
F the higher judiciary during the emergency in 1976, and the 
second supersession of a Supreme Court Judge, at the time 
·of the appointment of the Chief Justice of India in 1977, were 
executive aberrations. 
G (iv) Fourthly, the Memorandum of Procedure for appointment 
of Judges and Chief Justices to the higher judiciary drawn in 
1950, soon after India became independent, as also, the 
Memorandum of Procedure for appointment of Judges and 
Chief Justices to the higher judiciary redrawn in 1999, after 
H the decision in the Second Judges case, manifest that, the
SUPREME COUHT ADVOCATES-ON-RECORD 
427 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
executive tiad understood and accepted, that selection and 
A 
appointment of Judges to the higher judiciary would emanate 
from, and would be made on the advice of the Chief Justice of 
India. 
(v) Fifthly, having adverted to the procedure in place for the 
8 
selection and appointment of Judges to the higher judiciary, 
the submission advanced on behalf of the responqents, that 
the Second and Third Judges cases had created a procedure, 
where Judges select and appoint Judges, or that, the system 
of lmperium in lmperio had been created for appointment of c 
· Judges, was considered and expressly rejected (in the 
"Reference Order"). Furthermore, the submission, that the 
executive had no role, in the prevailing process of selection 
and appointment of Judges to the higher judiciary was also 
rejected, by highlighting the role of the executive in the matter D 
of appointment of Judges to the higher judiciary. Whilst 
recording the above conclusions, it was maintained (in the 
"Reference Order''), that primacy in the matter of appointment 
of Judges to the higher judiciary, was with the Chief Justice of 
India, and that, the same was based on the collective wisdom 
E 
of a collegium of Judges. 
(vi) Sixthly, the contention advanced at the behest of the 
respondents, that even in the matter of appointment of Judges 
to the higher judiciary (and in the matter of their transfer) under F
Articles 124, 217 (and 222), must be deemed to be vested in 
the executive, because the President by virtue of the 
constitutional mandate contained in Article 74, had to act in 
accordance with the aid and advice tendered to him by the 
Council of Ministers, was rejected by holding, that primacy in 
G 
the matter of appointment of Judges to the higher judiciary, 
continued to remain with the Chief Justice of India, and that, 
the same was based on the collective wisdom of a collegium 
of Judges. In recording the above conclusion, reliance was 
placed on Article 50. Reliance was also placed on Article 50, 
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[2015] 13 S.C.R. 
A 
for recording a further conclusion, that .if the power of 
appointment of Judges was left to the executive, the same 
would breach the principles of "independence of the judiciary" 
and "separation of powers". 
8 
152. In view of the above, it has to be concluded, that in 
the matter of appointment of Judges to the higher judiciary, as 
also, in the matter of their transfer, primacy in the decision 
making process, inevitably rests with the Chief Justice of India. 
And that, the same was expected to be expressed, on the basis 
c of the collective wisdom, of a ccillegium of Judges. Having so 
concluded, we reject all the submissions advanced at the hands 
of the learned counsel for the respondents, canvassing to the 
contrary. 
D 
IV. 
153. The next question which arises for consideration 
is, whether the process of selection and appointment of Judges 
to the higher judiciary (i.e., Chief Justices, and Judges of the 
High Courts and the Supreme Court), and the transfer of Chief 
E Justices and Judges of one High Court to another, 
contemplated through the impugned constitutional amendment, 
retains and preserves primacy in the decision making process, 
with the judiciary? It was the emphatic contention of the learned 
Attorney General, the learned Solicitor General, the learned 
F Additional Solicitor General, and a sizeable number of learned 
senior counsel who represented the respondents, that even 
after the impugned
constitutional amendment, primacy in the 
decision making process, under Articles 124, 217 and 222, 
has been retained with the judiciary. Insofar as the instant 
G aspect of the matter is concerned, it was contended on behalf 
of the respondents, that three of the six Members of the NJAC 
were ex officio Members drawn from the judiciary- the Chief 
Justice of India, and two other senior Judges of the Supreme 
Court, next to the Chief Justice. In conjunction with the aforesaid 
H 
/
SUPREME COURT ADVOCATES-ON-RECORD 
429 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
factual position, it was pointed out, that there was only one 
A 
nominee from the political-executive - the Union Minister in 
charge of Law and Justice. It was submitted, that the remaining 
two Members, out of the six-Member NJAC, were "eminent 
persons", who were expected to be politically neutral. Therefore, 
according to learned counsel representing the respondents, 
B 
primacy in the matter of selection and appointment of Judges 
to the higher judiciary, and also, in the matter of transfer of 
Chief Justices and Judges from one High Court to another, 
even under the impugned constitutional amendment, continued 
to remain, in the hands of the judiciary. 
C 
154. In conjunction with the aforesaid submission, it was 
emphatically pointed out, that the provisions of the NJAC Act 
postulate, that the NJAC would not recommend a person for 
appointment as a Judge to the higher judiciary, if any two o 
Members of the NJAC, did not agree with such 
recommendation. Based on the fact, that the Chief Justice of 
India and the two other senior Judges of the Supreme Court, 
were ex officio Members of the N'JAC, it was asserted, that 
the veto power for rejecting an unsuitable recommendation by E 
the judicial component of the NJAC, would result in retaining 
primacy in the hands of the judiciary, in the matter of selection 
and appointment of Judges to the higher judiciary, and also, in 
the
matter of transfer of Chief Justices and Judges from one 
High Court to another. This according to learned counsel for 
F 
the respondents, was because the judicial component would 
be sufficient, in preventing the other Members of the NJAC, 
from having their way. 
155. Having given our thoughtful consideration to the G 
above contention, there can be no doubt, that in the manner 
expressed by the learned counsel, the suggested inference 
may well be justified on paper. The important question to be 
considered is, whether as a matter of practicality, the impugned 
constitutional amendment can be considered to have 
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[2015] 13 S.C.R. 
A 
sustained, primacy in the matter of decision making, under 
the amended provisions of Articles 124, 217 and 222, in 
conjunction with the inserted provisions of Articles 124A to 
124C, with the judiciary? 
8 
156. The exposition made by the learned Attorney 
General and some of the other learned counsel representing 
the respondents, emerges from an over simplified and narrow 
approach. The primacy vested in the Chief Justice of India 
based on the collective wisdom of a collegium of Judges, needs 
c a holistic approach. It is not possible for us to accept, that the 
primacy of the judiciary would be considered to have been · 
sustained, merely by ensuring that the judicial component in 
the membership of the NJAC, was svfficiently capable, to reject 
the candidature of an unworthy nominee. We are satisfied, that 
o in the matter of primacy, the judicial component of the NJAC, 
should be competent by itself, to ensure the appointment of a 
worthy nominee, as well. Underttie substituted scheme, even 
if the Chief Justice of India and the two other senior most 
Judges of the Supreme Court (next to the Chief Justice of India), 
E consider a nominee to be worthy for appointment to the higher 
judiciary, the concerned individual may still not be appointed, 
if any two Members of the NJAC opine otherwise. This would 
be out-rightly obnoxious, to the primacy of the judicial 
component. The magnitude of the instant issue, is apparent
F from the fact that the two "eminent persons" (-lay persons, 
according to the learned Attorney General), could defeat the· 
unanimous recommendation made by the Chief Justice of India 
and the two senior most Judges of the Supreme Court, 
favouring the appointment of an individual under consideration. 
G Without any doubt, demeaning primacy of the judiciary, in the 
matter of selection and appointment of Judges to the higher 
judiciary. The reason to describe it as being obnoxious is this 
- according to the learned Attorney General, "eminent persons" 
H had to be lay persons having no connection with the judiciary,
SUPREME COURT ADVOCATES-ON-RECORD 
431 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
or even to the profession of advocacy, perhaps individuals who A 
may not have any law related academic qualification, such lay 
persons would have th~ collective authority, to override the 
collective wisdom of the Chief Justice of India and two Judges 
of the Supreme Court of India. The instant issue, is 
demonstrably far more retrograde, when the Union Minister in 
B 
charge of Law and Justice also supports the unanimous view 
of the judicial component, because still the dissenting voice of 
the "eminent persons" would prevail. It is apparent, that primacy 
of the judiciary has been rendered a further devastating blow, 
by making it extremely fragile. 
C 
157. When the issue is of such significance, as the 
constitutional position of Judges of the higher judiciary, it would 
be fatal to depend upon the moral strength of individuals. The 
judiciary has to be manned by people of unimpeachable D 
integrity, who can discharge their responsibility without fear or 
favour. There is no question of accepting an alternative 
procedure, which does not ensure primacy of the judiciary in 
the matter of selection and appointment of Judges to the higher 
judiciary (as also, in the matter of transfer of Chief Justices E 
and Judges of High Courts, to other High Courts). In the above 
stated position, it is not possible to conclude, that the 
combination contemplated for constitution of the NJAC, is
such, 
that would not be susceptible to an easy breach of the 
"independence of the judiciary". 
F 
158. Articles 124A(1)(a) and (b) do not provide for an 
adequate representation in the matter, to the judicial 
component, to ensure primacy of the judiciary in the matter of 
selection and appointment of Judges to the higher judiciary, . G 
and therefore, the same are liable to be set aside and struck 
down as being violative of the "basic structure" of the 
Constitution of India. Thus viewed, we are satisfied, that the 
"basic structure" of the Constitution would be clearly violated, 
if the process of selection of Judges to the higher judiciary 
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[2015] 13 S.C.R. 
A was to be conducted, in the manner contemplated through the 
NJAC. The impugned constitutional amendment, being ultra 
vires the "basic structure" of the Constitution, is liable to.be 
set aside. 
B 
v. 
159. It is surprising, that the Chief Justice of India, on 
account of the position he holds as paterfamilias of the judicial 
fraternity, and on account of the serious issues, that come up 
for judicial adjudication before him, which have immeasurable 
C political and financial consequences, besides issues of far 
reaching public interest, was suspected by none other than 
Dr. B.R. Ambedkar, during the course of the Constituent 
Assembly debates, when he declined to accept the 
suggestions made by some Members of the Constituent 
D Assembly, that the selection and appointment of Judges to 
the higher judiciary should be made with the "concurrence" of 
the Chief Justice of India, by observing, that even though the 
Chief Justice of India was a very eminent person, he was after 
all just a man with all the failings, all the sentiments, and all the 
E 
prejudices, which common people have. And therefore, the 
Constituent Assembly did not leave it to the individual wisdom 
of the Chief Justice of India, but required consultation with a 
plurality of Judges, by including in the consultative process (at 
F the discretion of the President of India), not only Judges of the 
Supreme Court of India, but also Judges of High Courts (in
addition to the mandatory consultation with the Chief Justice 
of India). One would also ordinarily feel, th~t the President of 
India and/or the Prime Minister of India in the discharge of 
G their onerous responsibilities in running the affairs of the country, 
practically all the time take decisions having far reaching 
consequences, not only in the matter of internal affairs of the 
country on the domestic front, but also in the matter of 
international relations with other countries. One would expect, 
H that vesting the authority of apg.ointment of Judges to the higher
SUPREME COURT ADVOCATES-ON-RECORD 
433 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
judiciary with any one of them should not ordinarily be suspect A 
of any impropriety. Yet, the Constituent Assembly did not allow 
any of them, any defined participatory role. In fact the debate 
in the ConstituentAssembly, removed the participation of the 
political-executive component, because of fear of being 
impacted by "political-pressure" and "political considerations". 
B 
Was the view of the ConstituentAssembly, and the above noted 
distrust, legitimate? 
160.Alittle personal research, resulted in the revelation 
of the concept of the "legitimate power of reciprocity", debated c 
by Bertram Raven in his article - "The Bases of Power and 
the Power/Interaction Model of Interpersonal Influence" (this 
article appeared in Analyses of Social Issues and Public Policy, 
Vol. 8, No.1, 2008, pp. 1-22). In addition to having dealt with 
various psychological reasons which influenced the personality D 
of an individual, reference was also made to the "legitimate 
power of reciprocity". It was pointed out, that the reciprocity 
norm envisaged, that if someone does something beneficial 
for another, the recipient would feel an obligation to reciprocate 
("I helped you when you needed it, so you should feel obliged 
E 
to do this for me." - Goranson and Berkowitz, 1966; Gouldner, 
1960). In the view expressed by the author, the inherent need 
of power, is universally available in the
subconscious of the 
individual. On the satisfaction and achievement of the desired 
power, there is a similar unconscious desire to reciprocate 
F 
the favour. 
161. The psychological concept of the "legitimate power 
of reciprocity", was also highlighted by Dennis T. Regan of the 
Cornell University in his article- "Effects of a Favour and Liking G 
on Compliance". It was pointed out, that there was sufficient 
evidence to establish, that favours do generate feelings of 
obligation, and the desire to reciprocate. According to the 
author, the available data suggested, that a favour would lead 
to reported feelings of obligation, on the part of its recipient. 
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A 
162. In his book "Influence: The Psychology of 
Persuasion" - Robert Cialdini, Regent's Professor Emeritus 
of Psychology and Marketing at Arizona State University, in 
Chapter II titled - "Reciprocation", expressed the view, that 
"possibly one of the most potent compliance techniques, was 
B the rule of reciprocation, which prompts one to repay, what 
someone has given to him. When a gift is extended, the 
recipient feels indebted to the giver, often feels uncomfortable 
with this indebtedness, and feels compelled to cancel the 
debt. .. often against his/her better judgment". It was pointed 
C out, that the rule of reciprocation, was widespread across the 
human cultures, suggesting that it was fundamental to creating 
interdependencies on which societies, cultures, and 
civilizations were built. It was asserted, that in fact the rule of 
reciprocation assured, that someone who had given something 
D away first, has a relative assurance, that this initial gift will 
eventually be repaid. In the above view of the matter, nothing 
would be lost. Referring to Marcel Nauss, who had conducted 
a study on gift giving, it was emphasised, that "there is an 
E obligation to give, an obligation to receive, and an obligation 
to repay". According to the author, it was in the above network 
of indebtedness, that the first giver could exploit the favour, 
and would rightfully assume the role of a compliance 
practitioner. And accordingly
it was concluded, that although 
F the obligation to repay constituted the essence of the 
reciprocity rule, it was the obli@ation to receive, that made the 
rule so easy tQ exploit. Describing the power of reciprocity, 
Cialdini in his article expressed, that the person who gives 
first remains, in control; and the person who was the recipient, 
G always remained in debt. It is pointed out, that the above 
situation was often deliberately created, and psychologically 
maintained. It was also the view of the author, that the more 
valuable, substantial and helpful the original favour, the more 
indebted the recipient would continue to feel. In the above 
H article, a reference was made to Alvin Gouldner, in whose
SUPREME COURT ADVOCATES-ON-RECORD 
435 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
opinion, there was no human society on earth, that does not A 
follow the rule of reciprocity. Referring also to the views of the 
renowned cultural anthropologists - Lionel Tiger and Robin 
Fox, it was affirmed, that humans lived in a "web of 
indebtedness". Therefore it was felt, that reciprocity was a 
debt and a powerful psychological tool, which was all, but B 
impossible to resist. 
163. Under the constitutional scheme in place in the 
United States of America, federal Judges are nominated by 
the President, and confirmed by the Senate. The issue being c 
debated, namely, the concept of "the legitimate power of 
reciprocity", therefore directly arises in the United States, in 
the matter of appointment of federal Judges. The first favour 
to the federal Judge is extended by the President, who 
nominates his name, and further favours are extended by one D 
or more Member(s) of the Senate, with whose support the 
Judge believes he won the vote of confirmation. An article 
titled as "Loyalty, Gratitude, and the Federal Judiciary", written 
by Laura E. Little (Associate Professor of Law, Temple 
University School of Law, as far back as in 1995), deals with 
E 
the issue in hand, pointedly with reference to appointment of 
Judges. The article reveals, that the issue of reciprocity has 
been a subject of conscious debate, with reference to the 
appointment of Judges for a substantial
length of time. The 
conclusions drawn in the above article are relevant to the 
F 
present controversy, and are being extracted hereunder: 
"On the issue of impartiality, an individual undertaking a 
federal judgeship confronts a difficult task. 
Contemporary lawyers commonly agree that the law is 
not wholly the product of neutral principles and that a G 
judge must choose among values as she shapes the 
law. Yet, the standards governing impartiality in federal 
courts largely assume that total judicial neutrality and 
dispassion are possible. The process of mapping out H
436 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015) 13S.C.R. 
a personal framework for decision making is therefore 
apt to create considerable discordance for the judge. 
Added to this burden are the special pulls of gratitude 
and loyalty toward the individuals who made possible 
the judge's job. 
I have sought to show both that gratitude and loyalty can 
have a powerful influence for a federal judge undertaking 
to decide a case. The problem is complex because 
loyalty and gratitude pose a greater potential problem 
for some judges than for others. This complexity 
emerges to a great degree from the process of 
nomination and confirmation. which often generates. or 
at least reinforces, a judge's sense of loyalty and 
gratitude to her benefactors. 
In the last few years, we have witnessed a wave of 
dissatisfaction with the selection process for federal 
judges. Legal scholarship in particular has offered 
frequent critique and constructive suggestions for 
change. As it must, this scholarship recognizes that any 
change ventured must weigh the impact of nomination 
and confirmation on a number of segments of American 
life, including the constitutional balance of powers and 
public perception of the judiciary. 
To omit from these concerns the effect of any change 
on the ultimate quality of judicial decision making would, 
of course, be a mistake. Thus. in studying any new 
selection procedure, we must contemplate the 
procedure's potential for creating and
invigorating a 
judge's feelings of loyalty and gratitude to her 
benefactors. The foregoing should. therefore, not only 
shed light on the process of federal court 
decision making in general. but also give much needed 
guidance for evaluating proposed changes to judicial 
selection."
SUPREME COURT ADVOCATES-ON-RECORD 
437 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
164. ltishowever pertinentto mention, thatin her article, 
A 
Laura E. Little has expressed, what most moral philosophers 
believed, that gratitude has significant moral components. And 
further, that gratitude has a ready place in utilitarian moral 
systems, which were designed to ensure the greatest good 
for the greatest number of individuals. The concept of gratitude 
B 
was however intertwined with loyalty by Laura E. Little, as in 
her view, gratitude and~ loyalty, were closely related. A 
beneficiary could show gratitude to a benefactor, through an 
expression of loyalty. The point sought to be made was, that in 
understanding loyalty one understands, who we are in our· C 
friendships, loves, family bonds, national ties, and religious 
devotion. Insofar as the patterns of behaviour in the Indian 
cultural system is concerned, a child is always obligated to his 
parents for his upbringing, and it is the child's inbuilt moral D 
obligation, to reciprocate to his parents by extending 
unimpeachable loyalty and gratitude. The above position finds 
replication in relationships of teacher and taught, master and 
servant, and the like. In the existing Indian cultural scenario, 
an act of not reciprocating towards a benefactor, would more E 
often than not, be treated as an act of grave moral deprivation. 
When the favour extended is as important as the position of 
judgeship in the
higher judiciary, one would best leave it to 
individual imagination, to determine the enormity of the 
reciprocal gratitude and loyalty. 
F 
165. The consideration recorded hereinabove, endorses 
the view, that the political-executive, as far as possible, should 
not have a role in the ultimate/final selection and appointment 
of Judges to the higher judiciary. Specially keeping in mind 
the enormity of the participation of the political-executive, in G 
actions of judicial adjudication. Reciprocity, and feelings of pay 
back to the political-executive, would be disastrous to 
"independence of the judiciary". In this, we are only reiterating 
the position adopted by Dr. B.R. Ambedkar. He feared, that H
438 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
with the participation of the political-executive, the selection of 
Judges, would be impacted by "political pressure" and "political 
considerations". His view, finds support from established 
behavioural patterns expressed by Psychologists. It is in this 
background, that it needs to be ensured, that the political-
B executive dispensation has the least nexus, with the process 
of finalization of appointments of Judges to the higher judiciary. 
VI. . 
166. The jurisdictions that have to be dealt with, by 
c. Judges of the higher judiciary, are large and extensive. Within 
the above jurisdictions, there are a number of jurisdictions, in 
which the executive is essentially a fundamental party to the 
/is. This would inter alia include cases arising out of taxing 
statutes which have serious financial implications. The 
D executive is singularly engaged in the exploitation of natural 
resources .. often through private entrepreneurs. The sale of 
natural resources, which also, have massive financial 
ramifications, is often subject to judicial adjudication, wherein 
also, the executive is an indispensable party. Challenges 
E arising out of orders passed by Tribunals of the nature of the 
Telecom Disputes Settlement & Appellate Tribunal and the 
Appellate Tribunal for Electricity, and the like, are also dealt 
with by the higher judiciary, where also the executive has a 
F 
role. Herein also, there could be massive financial
implications. 
The executive is also a necessary party in all matters relating 
to environmental issues, including appeals from the National 
Green Tribunals. Not only in all criminal matters, but also in 
high profile scams, which are no longer a rarity, the executive 
G has an indispensable role. In these matters, sometimes 
accusations are levelled against former and incumbent Prime 
Ministers and Ministers of the Union Cabinet, and sometimes 
against former and incumbent Chief Ministers and Ministers 
of the State Cabinets. Even in the realm of employment issues, 
H adjudication rendered by the Central Administrative Tribunal,
SUPREME COURT ADVOCATES-ON-RECORD 
439 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and theArmed Forces Appellate Tribunal come up before the A 
Judges of the higher judiciary. These adjudications also 
sometimes include, high ranking administrators and armed 
forces personnel. Herein too, the executive is an essential 
constituent. This is only a miniscule part of the extensive 
involvement of the political-executive, in litigation before the 
B 
higher judiciary. 
167. Since the executive has a major stake, in a majority 
of cases, which arise for consideration before the higher 
judiciary, the participation of the Union Minister in charge of c 
Law and Justice, as an ex officio Member of the NJAC, would 
be clearly questionable. In today's world, people are conscious 
and alive to the fact, that their rights should be adjudicated in 
consonance of the rules of natural justice. One of the rules of 
natural justice is, that the adjudicator should not be biased. 
D 
This would mean, that he should neither entertain a prejudice 
against either party to a /is, nor should he be favourably inclined 
towards any of them. Another component of the rule of bias is, 
that the adjudicator should not have a conflict of interest, with 
the controversy he is to settle. When the present set of cases E 
came up for consideration, a plea of conflict of interest was 
raised even against one of the presiding Judges on the Bench, 
which resulted in the recusal of Anil R. Dave, J. on
15.4.2015. 
A similar prayer was again made against one of us (J.S. 
Khehar, J.), on 21.4.2015, on the ground of conflict of interest. 
F 
What needs to be highlighted is, that bias, prejudice, favour 
and conflict of interest are issues which repeatedly emerge. 
Judges are careful to avoid adjudication in such matters. 
Judges are not on one or the other side of the adjudicatory 
process. The political-executive in contrast, in an overwhelming G 
majority of cases, has a participatory role. In that sense, there 
would/could be an impact/effect, of a decision rendered one 
way or the other. A success or a defeat- a win or a loss. The 
plea of conflict of interest would be available against the 
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440 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
executive, if it has a participatory role in the final selection and 
appointment of Judges, who are then to sit in judgment over · 
matters, wherever the executive is an essential and mandatory 
party. The instant issue arose for consideration in the Madras 
Bar Association case35• In the above case a five-Judge Bench 
B considered the legality of the participation of Secretaries of 
Departments of the Central Government in the selection and 
appointment of the Chairperson and Members of the National 
Tax Tribunal. On the above matter, this Court held, as under: 
c 
D 
"131.Section 7 cannot even otherwise be considered to be 
constitutionally valid, since it includes in the process of 
selection and appointment of the Chairperson and Members 
of NTT, Secretaries of Departments of the Central 
Government. In this behalf, it would also be pertinent to 
mention that the interests of the Central Government would 
be represented on one side in every litigation before NTT. 
It is not possible to accept a party to a litigation can 
participate in the selection process whereby the 
Chairperson and Members of the adjudicatory body are 
E 
selected .... " 
The position herein is no different. The Attorney General 
however attempted to distinguish the matter in hand, from the 
controversy decided in the cited case by asserting, that in 
cases adjudicated upon by the National Tax Tribunal the 
F 
" ... Central Government would be
represented on one side in 
every litigation ... "which is not the case before the higher 
judiciary. The rebuttal, clearly avoids the issue canvassed. One 
would assume from the response, that the position was 
conceded to the extent of matters, where the executive was a 
G party to the tis. But that itself would exclude the selected Judges 
from hearing a large majority of cases. One would therefore 
reject the response of the Union of India. 
168. We are of the view, that consequent upon the 
H participation of the Union Minister in charge of Law and Justice,
SUPREME COURT ADVOCATES-ON-RECORD 
441 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
a Judge approved for appointment with the Minister's support, A 
may not be able to resist or repulse a plea of conflict of interest, 
raised by a litigant, in a matter when the executive has an 
adversarial role. In the NJAC, the Union Minister iri charge of 
Law and Justice would be a party to all final selections and 
appointments of Judges to the higher judiciary. It may be 
B 
difficult for Judges approved by the NJAC, to resist a plea of 
conflict of interest (if such a plea was to be raised, and pressed), 
where the political-executive is a party to the /is. The above, 
would have the inevitable effect of undermining the 
"independence of the judiciary", even where such a plea is C 
repulsed. Therefore, the role assigned to the political-executive, 
can at best be limited to a collaborative participation, excluding 
any role in the final determination. Therefore, merely the 
participation of the Union Minister in charge of Law and Justice, D 
in the final process of selection, as an ex officio Member of 
the NJAC, would render the amended provision of Article 
124A(1 )(c) as ultra vires the Constitution, as it impinges on 
the principles of "independence of the judiciary'' and "separation 
of powers". 
E 
VII. 
169. The learned Attorney General had invited our 
attention to the manner in which judicial appointments were 
being made in fifteen countries. It was submitted, that in
nine 
F 
countries Judges were appointed either through a Judicial 
Appointments Commission, or through a Judicial 
Appointments Committee, or through a Judicial Appointments 
Council. It was highlighted, that in four countries, Judges were 
appointed directly by the executive, i.e., by the Governor G 
General or the President. We were informed, that in one 
European country, Judges were nominated by the Minister of 
Justice and confirmed by the Parliamentary Committee. In the 
United States of America, Judges were appointed through a 
process of nomination by the President and confirmation by 
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A 
the Senate. It was highlighted, that in all the fifteen countries, 
the executive was the final determinative/appointing authority. 
And further that, in all the countries, the executive had a role to 
play in the selection and appointment of Judges. The foresaid 
factual position was brought to our notice for the singular 
B 
purpose of demonstrating, that executive participation in the 
process of selection and appointment of Judges had not made 
the judiciary in any of the fifteen countries, subservient to the 
political-executive. It was asserted, that the countries referred 
to by him were in different continents of the world, and there 
C was no complaint with reference to the "independence of the 
judiciary". The point sought to be driven home was, that the 
mere participation of the executive in the selection and 
appointment of Judges to the higher judiciary, did not impinge 
0 
upon the "independence of the judiciary". 
170. The aforestated submission does not require an 
elaborate debate. Insofar as the instant aspect of the matter 
is concerned, as the same was examined in the Second 
Judges case, wherein S. Ratnavel Pandian, J., one of the 
E 
Judges who passed a separate concurring order, supporting 
the majority view. He had rejected the submission of the nature 
advanced by the learned Attorney General, with the following 
observations: 
F 
G 
H 
"194. Nevertheless, we have, firstly to find out the ails from
which our judicial system suffers; secondly to diagnose 
the root cause of those ailments under legalistic biopsies, 
thirdly to ascertain the nature of affliction on the system 
and finally to evolve a new method and strategy to treat 
and cure those ailments by administering and injecting a 
'new invented medicine' (meaning thereby a newly-
developed method and strategy) manufactured in terms of 
the formula under Indian pharmacopoeia (meaning thereby 
according to national problems in a mixed culture etc.) but 
not according to American or British pharmacopoeia which
SUPREME COURT ADVOCATES-ON-RECORD 
443 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
are alien to our Indian system though the system adopted 
A 
in other countries may throw some light for the development 
of our system. The outcry of some of the critics is when 
the power of appointment of Judges in all democratic 
countries far and wide. rests only with the executive. there 
is no substance in insisting that the primacy should be given 
B 
to the opinion of the CJI in selection and appointment of 
candidates for judgeship. This proposition that we must 
copy and adopt the foreign method is a dry legal logic. which 
has to be rejected even on the short ground that the 
Constitution of India itself requires mandatory consultation 
C 
with the CJI by the President before making the 
appointments to the superior judiciary. It has not been 
brought to our notice by any of the counsel for the 
respondents that in other countries the executive alone 
D 
makes the appointments notwithstanding the existence of 
any existing similar constitutional provisions in their 
Constitutions." 
171. Despite our having dealt with the submission 
canvassed at the hands of the learned Attorney General based 
E 
on the system of appointment of Judges to the higher judiciary 
in fifteen countries, we consider it expedient to delve further 
on the subject. During the hearing of the present controversy, 
a paper written in November 2008, by Nuno Garoupa and Tom 
Ginsburg of the Law School,
University of Chicago, came to 
F 
hand. The paper bore the caption - "Guarding the Guardians: 
Judicial Councils and Judicial Independence". The paper refers 
to.comparative evidence, of the ongoing debate, about the 
selection and discipline of Judges. The article proclaims to 
aim at two objectives. Firstly, the theory of formation of Judicial G 
Councils, and the dimensions on which they differ. And 
secondly, the extent to which different designs of Judicial 
Council, affect judicial quality. These two issues were 
considered as of extreme importance, as the same were 
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A determinative of the fact, whether Judges would be able to 
have an effective role in implementing social policy, as broadly 
conceived. It was observed, that Judicial Councils had come 
into existence to insulate the appointment, promotion and 
discipline of Judges from partisan political influence, and at 
B the same time, to cater to some level of judicial accountability. 
It was the authors' view, that the Judicial Councils lie 
somewhere in between the polar extremes of letting Judges 
manage their own affairs, and the alternative of complete 
political-executive control of appointments, promotions and 
C discipline. 
172. According to the paper, France established the first 
High Council of the Judiciary in 1946. Italy's Judicial Council 
was created in 1958. Italy was the first to fully in·sulate the 
o entire judiciary from political control. It was asserted, that the 
Italian model was, thereupon, followed in other countries. The 
model established in Spain and Portugal comprised of a 
significant proportion of Members who were Judges. These 
models were established, after the fall of dictatorship in these 
E countries. Councils created by these countries, are stated to 
be vested with, final decision making authority, in matters 
pertaining to judicial promotion, tenure and removal. According 
to the paper, the French model came into existence as a 
consequence of concerns about excessive politicization. 
F Naturally,
the process evolved into extensive independence of 
judicial power. Yet, judicial concern multiplied manifolds in the 
judiciary's attempt to give effect to the European Convention 
of Human Rights. And the judiciary's involvement in the process 
of judicial review, in the backdrop of surmounting political 
G scandals. The paper describes the pattern in Italy to be similar. 
In Italy also, prominent scandals led to investigation of 
. businessmen, politicians and bureaucrats (during the period 
from 1992 to 1997), which resulted in extensive judicial 
H participation, in political activity. The composition of the
SUPREME COURT ADVOCATES-ON-RECORD 
445 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Council in Italy, was accordingly altered in 2002, to increase A 
the influence of the Parliament. 
173. The paper noted, that the French-Italian models had 
been adopted in Latin America, and other developing 
countries. It was pointed out, that the World Bank and other B 
similar multilateral donor agencies, insist upon Judicial 
Councils, to be associated with judicial reform, for enforcement 
of the rule of law. The Elements of European Statute on the 
Judiciary, was considered as a refinement of the Judicial 
Council model. The perceived Supreme Council of Magistracy, c 
requires that at least half of the Members are Judges, even 
though, some of the Members of the Supreme Council are 
drawn from the Parliament. It was the belief of the authors of 
the paper, that the motivating concern for adoption of the 
Supreme Councils, in the French-Italian tradition, was aimed D 
at ensuring "independence of the judiciary" after periods of 
undemocratic rule. Perhaps because of concerns over 
structural problems, it was pointed out, that external 
accountability had emerged as a second goal for these 
·Supreme Councils. Referring to the Germany, Austria and 
E 
Netherlands models, it was asserted, that their Councils were 
limited to playing a role in selection (rather than promotion and 
discipline) of Judges. Referring to Dutch model, it was pointed 
out, that recent reforms were
introduced to ensure more 
transparency and accountability. 
F 
17 4. It was also brought out, that Judicial Councils in civil 
law jurisdictions, had a nexus to the Supreme Court of the 
country. Referring to Costa Rica and Austria, it was brought 
out, that the Judicial Councils in these countries were a G 
subordinate organ of the Supreme Court. In some countries 
like Brazil, Judicial Councils were independent bodies with· 
constitutional status, while in others Judicial Councils governed 
the entire judiciary. And in some others, like Guatemala and 
Argentina, they only governed lower courts. 
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A 
175. Referring to recruitment to the judiciary in common 
law countries, it was pointed out, that in the United Kingdom, 
the Constitutional Reform Act, 2005 created a Judicial 
Appointments Commission, which was responsible for 
appointments solely based on merit, had no executive 
B participation. It was pointed out, that New Zealand and Australia 
were debating whether to follow the same. The above 
legislation, it was argued, postulated a statutory duty on 
Government Members, not to influence judicial decisions. And 
also, excluded the participation of the Lord Chancellor in all 
C such activities, by transferring his functions to the President of 
the Courts of England and Wales, (formerly designated as Lord 
Chief Justice of England and Wales). 
176. Referring to the American experience, it was noted, 
o that concern over traditional methods of judicial selection 
(either by politicians or by election) had given way to "Merit 
Commissions" so as to base selection of Judges on merit. 
Merit Commissions, it was felt, were analogous to Judicial 
Councils. The system contemplated therein, was non-partisan. 
E The Judicial Selection Commission comprised of judges, 
lawyers and political appointees. 
177. Referring to the works of renowned jurists on the 
subject, it was sought to be concluded, that in today's world, 
F there was a strong consensus, that of all the procedures, the 
merit plan insulated the judiciary from
political pressure. In 
their remarks, emerging from the survey c~rried out by them, it 
was concluded,-that it was impossible~(d eliminate political 
pressure on the judiciary. Judicial Commissions/ Councils 
G created in different countries were, in their view, measures to 
enhance judicial independence, and to minimize political 
influence. It was their view that once given independence, Judges 
were more useful for resolving a wider range of more important 
disputes, which were considered essential, given the fact that 
H more and more tasks were now being assigned to the judiciary.
SUPREME COURT ADVOCATES-ON-RECORD 
447 
ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.] 
178. In analyzing the conclusions drawn in the article, one A 
is constrained to conclude, that in the process of evolution of 
societies across the globe, the trend is to free the judiciary 
from executive and political control, and to incorporate a system 
. of selection and appointment of Judges, based purely on merit. 
For it is only then, that the process of judicial review will 
B 
effectively support nation building. In the subject matter, which 
falls for our consideration, it would be imperative for us, to keep 
in mind, the progression of the concepts of"independence of 
the judiciary" and "judicial review" were now being recognized 
the world over. The diminishing role of executive and political C 
participation, on the matter of appointments to the higher 
judiciary, is an obvious reality. In recognition of the above trend, 
there cannot be any greater and further participation of the 
executive, than that which existed hitherto before. And in the 
0 
Indian scenario, as is presently conceived, through the 
judgments rendered in the Second and Third Judges cases. It 
is therefore imperative to conclude, that the participation of 
the Union Minister in charge of Law and Justice in the final 
determinative process vested in the NJAC, as also, the 
E \.. 
participation of the Prime Minister and the Leader of the 
Opposition in the Lok Sabha (and in case of there being none 
-
the Leader of the single largest Opposition Party in the House 
of the People), in the selection of"eminent persons", would be 
a retrograde step, and cannot be accepted. 
F 
VIII. 
179. The only component of the NJAC, which remains to 
be dealt with, is with reference to the two "eminent persons" 
required to be nominated to the NJAC. It is not necessary to 
G 
detail the rival submissions on the instant aspect, as they have 
already been noticed extensively, hereinbefore. 
180. We may proceed by accepting the undisputed 
position, that neitherthe impugned constitutional amendment, 
nor the NJAC Act postulate any positive qualification to be 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
possessed by the two "eminent persons" to be nominated to 
the NJAC. These constitutional and legislative enactments do 
not even stipulate any negative disqualifications. It is therefore 
apparent, that the choice of the two "eminent persons" would 
depend on the free will of th.e nominating authorities. The 
B question that arises for consideration is, whether it is just and 
appropriate to leave the issue, to the free will and choice, of 
the nominating authorities? 
181. The response of the learned Attorney General was 
C emphatic. Who could know better than the Prime Minister, the 
Chief Justice of India, or the Leader of Opposition in the Lok 
Sabha (and when there is no such Leader of Opposition, then 
the Leader of the single largest Opposition Party in the Lok 
Sabha)? And he answered the same by himself, that if such 
o high ranking constitutional authorities can be considered as 
being unaware, then no one in this country could be trusted, to 
b.e competent, to take a decision on the matter - neither the 
legislature, nor the executive, and not even the judiciary. The 
Attorney General then quipped - surely this Court would not 
E set aside the impugned constitutional amendment, or the NJAC 
. 
. 
Act, on such a trivial issue. He also suggested, that we st}.ould 
await the outcome of the nominating authorities, and if this 
Court felt that a particular individual nominated to discharge 
the responsibility entrusted
to him as an "eminent person" on 
F the NJAC, was inappropriate or unacceptable or had no nexus 
with the responsibility required to be shouldered, then his 
appointment could be set aside. 
182. Having given our thoughtful consideration to the 
G matter, we are of the view, that the issue in hand is certainly 
not as trivial, as is sought to be made out. The two "eminent 
persons" comprise of 1 /3rd strength of the NJAC, and double 
that of the political-executive component. We could understand 
the import of the submission, only after hearing learned counsel. 
H The view emphatically expressed by the Attorney General was
SUPREME COURT ADVOCATES-ON-RECORD 
449 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
that the "eminent persons" had to be "lay persons" having no A 
connection with the judiciary, or even to the profession of 
advocacy, perhaps individuals who may not have any law 
related academic qualification. Mr. T.R. Andhyarujina, learned 
senior counsel who represented the State of Maharashtra, 
which had ratified the impugned constitutional amendment, had 
B 
appeared to support the impugned constitutional amendment, 
as well as, the NJAC Act, expressed a diametrically opposite 
view. In his view, the "eminent persons" with reference to the 
NJAC, could only be picked out of, eminent lawyers, eminent 
jurists, and even retired Judges, or the like, having an insight C 
to the working and functioning of the judicial system. It is 
therefore clear, that in the view of the learned senior counsel, 
the nominated "eminent persons" would have to be individuals, 
with a legal background, and certainly not lay persons, as was D 
suggested by the learned Attorney General. We have recorded 
the submissions advanced by Mr. DushyantA. Dave, learned 
senior counsel - the President of the Supreme Court Bar 
Association, who had addressed the Bench in his usual 
animated manner, with no holds barred. We solicited his view, 
E 
whether it would be proper to consider the inclusion of the 
President of the Supreme Court Bar Association and/or the 
Chairman of the Bar Council of India, as ex officio
Members 
of the NJAC in place of the two "eminent persons". His 
response was spontaneous "Please don't do that!!" and then 
F 
after a short pause, " ... that would be disastrous !!". Having 
examined the issue with the assistance of the most learned 
and eminent counsel, it is imperative to conclude, that the issue 
of description of the qualifications (- perhaps , also the 
disqualifications) of "eminent persons" is of utmost importance, G 
and cannot be left to the free will and choice of the nominating 
authorities, irrespective of the high constitutional positions held 
by them. Specially so, because the two "eminent persons" 
comprise of 1/3rd strength of the NJAC, and double that of 
the political-executive component, and as such, will have a 
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[2015] 13S.C.R. 
A 
supremely important role in the decision making process of 
the NJAC. We are therefore persuaded to accept, that Article 
124A(1 )(d) is liable to be set aside and struck down, for having 
not laid down the qualifications of eligibility for being nominated 
as "eminent persons", and for having left the same vague and 
B 
undefined. 
183. It is even otherwise difficult to appreciate the logic 
of including two "eminent persons", in the six-Member NJAC. 
If one was to go by the view expressed by the learned Attorney 
c General, "eminent persons" had been included in the NJAC, 
to infuse inputs which were hitherto not available with the 
prevailing selection process, for appointment of Judges to the 
higher judiciary. Really a submission with all loose ends, and 
no clear meaning. He had canvassed, that they would be "lay 
o persons" having no connecti~n with the judiciary, or even with 
the profession of advocacy, perhaps individuals who did not 
even have any law related academic qualification. It is difficult 
to appreciate what inputs the "eminent persons", satisfying the 
qualification depicted by the learned Attorney General, would 
E 
render in the matter of selection and appointment of Judges 
to the higher judiciary. The absurdity of including two "eminent 
persons" on the NJAC, can perhaps be appreciated if one 
were to visualize the participation of such "lay persons", in the 
selection of the Comptroller and
Auditor-General, the Chairman 
F 
and Members of the Finance Commission, the Chairman and 
Members of the Union Public Service Commission, the Chief 
Election Commissioner and the Election Commissioners and 
the like. The position would be disastrous. In our considered 
view, it is imprudent to ape a system prevalent in an advanced 
G country, with an evolved civil society. 
184. The sensitivity of selecting Judges is so enormous, 
and the consequences of making inappropriate appointments 
so dangerous, that if those involved in the process of selection 
H and appointment of Judges to the higher judiciary, make
SUPREME COURT ADVOCATES-ON-RECORD 
451 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
wrongful selections, it may well lead the nation into a chaos of A 
sorts. The role of "eminent persons" cannot be appreciated in 
the manner expressed through the impugned constitutional 
amendment and legislative enactment. At best, to start with, 
one or more "eminent persons" (perhaps even a committee of 
"eminent persons"), can be assigned an advisory/consultative 
B 
role, by allowing them to express their opinion about the 
nominees under consideration. Perhaps, under the judicial 
component of the selection process. And possibly, comprising 
of eminent lawyers, eminent jurists, and even retired Judges, 
or the like having an insight to the working and functioning of C 
the jud_icial system. And by ensuring, that the participants have 
no conflict of interest. Obviously, the final selecting body would 
not be bound by the opinion experienced, but would be obliged 
to keep the opinion tendered in mind, while finalizing the names D 
of the nominated candidates. 
185. It is also difficult to appreciate the wisdom of the 
Parliament, to introduce two lay persons, in the process of 
selection and appointment of Judges to the higher judiciary, 
and to simultaneously vest with them a power of veto. The 
E 
second proviso under Section 5(2), and Section 6(6) of the 
NJAC Act, clearly mandate, that a person nominated to be 
considered for appointment as a Judge of the ~upreme Court, 
and
persons being considered for appointment as Chief 
Justices and Judges of High Courts, cannot be appointed, if F 
any two Members of the NJAC do not agree to the proposal. 
In the scheme of the selection process of Judges to the higher 
judiciary, contemplated under the impugned constitutional 
amendment read with the NJAC Act, the two "eminent persons" 
are sufficiently empowered to reject all recommendations, just G 
by themselves. Not just that, the two "eminent persons" would 
also have the absolute authority to reject all names unanimously 
approved by the remaining four Members of the NJAC. That 
would obviously include the power to reject, the unanimous 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
recommendation of the entire judicial component of the NJAC. 
In our considered view, the vesting of such authority in the 
"eminent persons", is clearly unsustainable, in the scheme of 
"independence of the judiciary". Vesting of such authority on 
persons who have no nexus to the system of administration of 
B justice is clearly arbitrary, and we hold it to be so. The inclusion 
of "eminent persons", as already concluded above (refer to 
paragraph 156), would adversely impact primacy of the 
judiciary, in the matter of selection and appointment of Judges 
to the higher judiciary (as also their transfer). For the reasons 
C recorded hereinabove, it is apparent, that Article 124A(1 )(d) 
is liable to be set aside and struck down as being violative of 
the "basic structure" of the Constitution. 
IX. 
D 
186. During the course of hearing, the learned Attorney 
General, made some references to past appointments to the 
Supreme Court, so as to trumpet the accusation, that the 
"collegium system" had not functioned efficiently, inasmuch as, 
persons of the nature referred to by him, came to be selected 
E and appointed as Judges of the Supreme Court. In a manner 
as would be in tune with the dignity of this Court, he had not 
referred to any of the Judge(s) by name. His reference was by 
deeds. Each and every individual present in the Court-hall, 
was aware of the identity of the concerned Judge, in the manner 
F the submissions
were advanced. The projection by the learned 
Attorney General was joyfully projected by the print and 
electronic media, extensively highlighting the allusions 
canvassed by the learned Attorney General. 
G 
187. If our memory serves us right, the learned Attorney 
General had made a reference to the improper appointment 
of three Judges to the Supreme Court. One would have felt, 
without going into the merits of the charge, that finding fault 
with just three Judges, despite the appointment of over a 
H hundred Judges to the Supreme Court, since the
SUPREME COURT ADVOCATES-ON-RECORD 
453 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
implementation of the judgment rendered in the Second 
A 
Judges case (pronounced on 6.10.1993)- M.K. Mukherjee, 
J., being the first Judge appointed under the "collegium system" 
on 14.12.1993, and B.N. Kirpal, CJ., the first Chief Justice 
thereunder, having been appointed as Judge of the Supreme 
Courton 11.9.1995, under the "collegium system", should be 
B 
considered as no mean achievement. 
188. The first on the list of the learned Attorney General 
was a Judge who, according to him, had hardly delivered any 
judgments, both during the period he remained a Judge and c 
Chief Justice of different High Courts in the country, as also, 
the period during which he remained a Judge of this Court. 
The failure of the "collegium system", was attributed to the fact, 
that such a person would have been weeded out, if a meaningful 
procedure had been in place. And despite his above D 
disposition, the concerned Judge was further elevated to the 
Supreme Court. The second instance cited by him was, in 
respect of a Judge, who did not abide by any time schedule. It 
was asserted, that the Judge, was inevitably late in 
co111mencing court proceedings. It was his contention, that E 
past experience with reference to the said Judge, indicated a 
similar demeanour, as a Judge of different High Courts and 
as Chief Justice of one High Court. It was lamented, that the 
above behaviour was not
sufficient, in the process adopted 
under the "collegium system", to reject the Judge from elevation 
F 
to the Supreme Court. The third Judge was described as an 
individual, who was habitually tweeting his views, on the 
internet. He described him as an individual unworthy of the 
exalted position of a Judge of the Supreme Court, and yet, the 
"collegium system" had supported his appointment to the G 
Supreme Court. 
189. Just as it was impossible to overlook a submission 
advanced by the Attorney General, so also, it would be improper 
to leave out submissions advanced on a similar note, by none H
454 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
other than the President of the Supreme Court Bar Association. 
Insofar as Mr. Dushyant A. Dave, Senior Advocate, is 
concerned, his pointed assertion of wrongful appointments 
included a reference to a Judge of this Court, who had allegedly 
taken on his board a case, which was not assigned to his roster. 
B 
It was alleged, that he had disposed of the case wrongfully. 
Before, we dwell on the above contention, it is necessary to 
notice, that the charge leveled, does not relate to an allegedly 
improper selection and appointment. The accusation is limited 
to a wrongful determination of "one" case. Insofar as the instant 
C 
aspect of the matter is concerned, it is necessary for us to 
notice, that a review petition came to be filed against the 
alleged improper order, passed by the said Judge. The same 
was dismissed. After the Judge demitted office, a curative 
D petition was filed, wherein the alleged improper order passed 
by the concerned Judge, was assailed. The same was also 
dismissed. Even thereafter, a petition was filed against the 
concerned Judge, by impleading him as a party-respondent. 
The said pefitionwas also dismissed. We need to say no more, 
E than what has been observed hereinabove, with reference to 
the particular case, allegedly wrongly decided by the concerned 
Judge. 
190. It is imperative for us, while taking into consideration 
the submissions advanced by the learned Attorney General, 
F to
highlight, that the role of appointment of Judges in 
consonance with the judgment rendered in the Second Judges 
case, envisages the dual participation of the members of the 
judiciary, as also, the members of the executive. Details in 
this behalf have been recorded by us in the "Reference Order''. 
G And therefore, in case of any failure, it is not only the judicial 
component, but also the executive component, which are jointly 
and equally responsible. Therefore, to single out the judiciary 
for criticism, may not be a rightful reflection of the matter. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
455 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
191. It is not within our realm to express our agreement A 
or disagreement with the contentions advanced at the hands 
of the learned Attorney General. He may well be right in his 
own perception, but the misgivings pointed out by him may 
not be of much significance in the perception of others, specially 
those who fully appreciate the working ofthe judicial system. 
B 
The misgivings pointed out by the learned Attorney General, 
need to be viewed in the background of the following 
considerations: 
Firstly, the allegations levelled against the Judges in question, c 
do not depict any lack of ability in the discharge of judicial 
responsibility. Surely, that is the main consideration to be taken 
into account, at the time of selection and appointment of an 
individual, as a Judge at the level of the higher judiciary. 
Secondly, none of the misgivings expressed on behalf of the D 
respondents, are referable to integrity and misdemeanor. 
Another aspect, which cannot be compromised, at the time of 
selection of an individual, as a Judge at the level of the higher 
judiciary. Nothing wrong at this front also. 
E 
Thirdly, not in a single of the instpnces referred to above, the 
political-executive had objected to the elevation of the Judges 
referred to. We say so, because on our asking, we were 
furnished with the details of those who had been elevated, 
despite objections at the hands
of the Union-executive. None 
F 
• of the Judges referred to, figured in that list. 
Fourthly, no allegation whatsoever was made by the Attorney 
General, with reference to Judges, against whom objections 
· were raised by the political-executive, and yet, they were 
G 
appointed at the insistence of the Chief Justice, under the 
"collegium system". 
Fifthly, that the political-executive disposition, despite the 
allegations levelled by the learned Attorney General, chose to 
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[2015] 13S.C.R. 
A 
grant post-retirement assignments, to three of the four 
instances referred to, during the course of hearing. A post-
retirement assignment was also allowed by the political-
executive, to the Judge referred to by Mr. DushyantA. Dave. 
In the above factual scenario, either the learned Attorney 
B General had got it all wrong. And if he is right, the political-
executive got it all wrong, because it faltered despite being 
aware of the factual position highlighted. 
Lastly, it has not been possible for us to comprehend, how 
c and why, a Judge who commenced to tweet his views after his 
retirement, can be considered to be unworthy of elevation. The 
fact that the concerned Judge started tweeting his views after 
his retirement, is notin dispute. The inclusion of this instance 
may well demonstrate, that all in all, the functioning of the 
D "collegium system" may well not be as bad as it is shown to be. 
192. The submissions advanced by Mr. DushyantA. Dave 
were not limited just to the instance of a Judge of the Supreme 
Court. He expressed strong views about persons like Maya 
Kodnani, a former Gujarat Minister, convicted in a riots case, 
E for having been granted relief, while an allegedly renowned 
activist Teesta Setalvad, had to run from pillar to post, to get 
anticipatory bail. He also made a reference to convicted 
politicians and film stars, who had been granted relief by two 
F different High Courts, as also by this
Court. It was his lament, 
that whilst film stars and politicians were being granted 
immediate relief by the higher judiciary,.commoners suffered 
for years. f-:f e attributed all this, to the defective selection 
process in vogue, which had resulted in the appointment of 
G "bad Judges". He repeatedly emphasized, that victims of the 
1984 anti-Sikh riots in Delhi, and the 2002 anti-Muslim riots in 
Gujarat, had not got any justice. It was his contention, that 
Judges selected and appointed through the process presently 
in vogue, were to blame. He also expressed the view, that tbe 
H appointed Judges were oblivious of violations of human rights.
SUPREME COURT ADVOCATES-ON-RECORD 
457 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
It was submitted, that it was shameful, that courts of law could A. 
not deliver justice, to those whose fundamental and human 
rights had been violated. 
193. It is necessary to emphasise, that under every 
system of law, there are two sides to every litigation. Only one 
B 
of which succeeds. The question of how a matter has been 
decided would always be an issue of debate. The party, who 
succeeds, would feel justice had been done. While the party 
that loses, would complain that justice had been denied. In 
the judicial process, there are a set of remedies, that are c 
available to the parties concerned. The process contemplates, 
culmination of proceedings at the level of the Supreme Court. 
Once the process has run the full circle, it is indeed futile to 
allege any wrong doing, except on the basis of adequate 
material to show otherwise. Not that, the Supreme Court is 
D 
right, but that, there has to be a closure. Most of the instances, 
illustratively mentioned by the President of the Supreme Court 
Bar Association, pertained to criminal prosecutions. The 
adjudication of such controversies is dependent on the 
adequacy of evidence produced by the prosecution. The nature 
E 
of the allegations (truthful, or otherwise), have an important 
bearing, on the interim relief(s} sought, by the parties. The 
blame for passing (or, not passing) the desired orders, does 
not therefore per
se, rest on the will of the adjudicating Judge, 
but the quality and authenticity of the evidence produced, and 
F 
the nature of the allegations. Once all remedies available stand 
exhausted, it does not lie in the mouth of either the litigant, or 
the concerned counsel to imply motives, without placing on 
rec6rd any further material. It also needs to be recorded, that 
while making the insinuations, learned senior counsel, did not G 
make a pointed reference to any High Court Judge by name, 
nor was it possible for us to identify any such Judge, merely on · 
the basis of the submissions advanced, unlike the instances 
with reference to Judges of the Supreme Court. In the above 
H
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[2015] 13 S.C.R. 
A 
view of the matter, it is not possible for us to infer, that there 
are serious infirmities in the matter of selection and 
appointment of Judges to the higher judiciary, under the 
prevailing "collegium system", on the basis of the submissions 
advanced before us. 
B 
194. It is apparent that learned counsel had their say, 
without any limitations. That was essential, to appreciate the 
misgivings in the prevailing procedure of selection and 
appointment of Judges to the higher judiciary. We have also 
c recorded all the submissions (hopefully) in terms of the 
contentions advanced, even in the absence of supporting 
pleadings. We will be failing in discharging our responsibility, 
if we do not refer to the parting words of Mr. DushyantA. Dave 
- the President of the Supreme Court Bar Association, who 
o having regained his breath after his outburst, did finally 
concede, that still a majority of the Judges appointed to the 
High Courts and the Supreme Court, were/are outstanding, 
and a miniscule minority were "bad Judges". All in all, a 
substantial emotional variation, from how he had commenced. 
E One can only conclude by observing, that individual failings of 
men who are involved in the actual functioning of the executive, 
the legislature and the judiciary, do not necessarily lead to the 
inference, thatthe system which selects them, and assigns to 
them their role, is defective. 
F 
x. 
195. It must remain in our
minds, that the Indian 
Constitution is an organic document of governance, which 
needs to change with the evolution of civil society. We have 
G already concluded, that for far more reasons than the ones, 
recorded in the Second Judges case, the term "consultation", 
·referred to selection of Judges to the higher judiciary, really 
meant, even in the wisdom of the framers of the Constitution, 
that primacy in the matter, must remain with the Chief Justice 
H of India (arrived at, in consultation with a plurality of Judges).
SUPREME COURT ADVOCATES-ON-RECORD 
459 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Undoubtedly, it is open to the Parliament, while exercising its A 
power under Article 368, to provide for some other alternative 
procedure for the selection and appointment of Judges to the 
higher judiciary, so long as, the attributes of "separation of 
powers" and "independence of the judiciary", which are "core" 
components of the "basic structure" of the Constitution, are 
B 
maintained. 
196. That, however, will depend upon the standards of 
the moral fiber of the Indian polity. It cannot be overlooked, 
that the learned Attorney General had conceded, that there c 
were certain political upheavals, which had undermined the 
"independence of the judiciary", including an executive 
overreach, at the time of appointment of the Chief Justice of 
India in 1973, followed by the mass transfer of Judges of the 
higher judiciary during the emergency in 1976, and thereafter D 
a second supersession, at the time of appointment of another 
Chief Justice of India in 1977. And further, the interference by 
the executive, in the matter of appointment of Judges to the 
higher judiciary during the 1980's. 
197. An important issue, that will need determination, 
E 
before the organic structure of the Constitution is altered, in 
the manner contemplated by the impugned constitutional 
amendment, would be, whether the civil society, has been able 
to maneuver its leaders, towards national interest?
And 
F 
whether, the strength of the civil society, is of a magnitude, as 
would be a deterrent for any overreach, by any of the pillars of 
governance? At the present juncture, it seems difficult to repose 
faith and confidence in the civil society, to play any effective 
role in that direction. For the simple reason, that it is not yet G 
sufficiently motivated, nor adequately determined, to be in a 
position to act as a directional deterrent, for the political-
executive establishment. It is therefore, that the higher judiciary, 
which is the savior of the fundamental rights of the citizens of 
this country, by virtue of the constitutional responsibility 
H
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SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A 
assigned to it under Articles 32 and 226, must continue to act 
as the protector of the civil society. This would necessarily 
contemplate the obligation of preserving the "rule of law", by 
forestalling the political-executive, from transgressing the limits 
B 
of their authority as envisaged by the Constitution. 
198. Lest one is accused of having recorded any 
sweeping inferences, it will be necessary to record the reasons, 
for the above conclusion. The Indian Express, on 18.6.2015, 
published an interview with L.K. Advani, a veteran BJP 
c Member of Parliament in the Lok Sabha, under the caption 
"Ahead of the 40th anniversary of the imposition of the 
Emergency on 25.6.1975". His views were dreadfully revealing. 
In his opinion, forces that could crush democracy, were now 
stronger than ever before. He asserted, "I do not think anything 
o has been done that gives me the assurance that civil liberties 
will not be suspended or destroyed again. Not at all"!! It was 
also his position, that the emergency could happen again. While 
acknowledging, that the media today was more alert and 
independent, as compared to what it was, when emergency 
E was declared by the then Prime Minister Indira Gandhi, forty 
years ago. In his perception, the media did not have any real 
commitment to democracy and civil liberties. With reference 
to the civil society, he pointed out, that hopes were raised 
during the Anna Haza re mobilization
against corruption, which 
F 
according to him, ended in a disappointment, even with 
reference to the subject of corruption. This when the poor and 
downtrodden majority of this country, can ill afford corruption. 
Of the various institutions, that could be held responsible, for 
the well functioning of democracy in this country, he expressed, 
G that the judiciary was more responsible than the other 
institutions. 
199. On the above interview, Mani Shankar Aiyar, a 
veteran Congress Member of Parliament in the Rajya Sabha, 
H while expressing his views notice~, that India could not be
SUPREME COURT ADVOCATES-ON-RECORD 
461 
ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.] 
"emergency proof", till the Constitution provided for the 
A 
declaration of emergency, at the discretion of an elected 
Government. He pointed out, that it should not be forgotten, 
that in 1975, emergency had been declared within the 
framework of the Constitution. It was therefore suggested, that 
one of the solutions to avoid a declaration of emergency could 
B 
be, to remove Part XVIII of the Constitution, or to amend it, 
and "to provide for only an external emergency". He however 
raised a poser, whether it would be practical to do so? One 
would venture to answer the same in the negative. And in such c 
situation, to trust, that the elected Government would act in the 
interest of the nation. 
200. The stance of L.K.Advani was affirmed by Sitaram 
Yechury, a veteran CPI (Marxist) Member of Parliament in the 
Rajya Sabha, who was arrested, like L.K. Advani, during the D 
emergency in 1975. 
201. The present N.D.A. Government was sworn in, on 
26.5.2014. One believes, that thereafter thirteen Governors of 
different States and one Lieutenant Governor of a Union 
Territory tendered their resignations in no time. Some of the 
E 
Governors demitted their office shortly after they were 
appointed, by the previous U.P.A. - dispensation. That is 
despite the fact, that a Governor under the Constitutional 
mandate of Article 156(3) has a term of five years, from the 
F 
date he enters
upon his office. A Governor is chosen out of 
persons having professional excellence and/or personal 
acclaim. Each one of them, would be eligible to be nominated 
as an "eminent person" under Article 124A(1 )(d). One wonders, 
whether all these resignations were voluntary. The above 
G 
-· 
depiction .is not to cast any aspersion. As a matter of fact, its 
predecessor-the U .P.A. Government, had done just that in 2004. 
202. It is necessary to appreciate, that the Constitution 
does not envisage the "spoils system" (also known as the 
H
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
"patronage system"), wherein the political party which wins an 
election, gives Government positions to its supporters, friends 
and relatives, as a reward for working towards victory, and as 
an incentive to keep the party in power. 
8 
203. It is also relevant to indicate, the images of the 
"spoils system" are reflected from the fact, that a large number 
of persons holding high positions, in institutions of significance, 
likewise resigned from their assignments, after the present 
N.D.A. Government was sworn in. Some of them had just a 
c few months before their tenure would expire - and sol'lle, even 
less than a month. Those who left included bureaucrats from 
the All India Services occupying coveted positions at the 
highest level, Directors/Chairmen of academic institutions of 
national acclaim, constitutional authorities (other than 
D Governors), Directors/Chairmen of National Research 
Institutions, and the like. Seriously, the instant narration is not 
aimed at vilification, but of appreciation of the ground reality, 
how the system actually works. 
204. From the above, is one to understand, that all these 
E 
individuals were rank favorites, approved by the predecessor 
political-executive establishment? Or, were the best not chosen 
to fill the slot by the previous dispensation? Could it be, that 
those who get to hold the reins of Government, introduce their 
F favourites? Or, whether the existing incumbents,
deserved just 
that? Could it be, that just like its predecessor, the present 
political establishment has now appointed its rank favourites? 
What emerges is, trappings of the spoils system, and nothing 
else. None of the above parameters, can be adopted in the 
G matter of appointment of Judges to the higher judiciary. For 
the judiciary, the best out of those available have to be chosen. 
Considerations cannot be varied, with a change in 
Government. Demonstrably, that is exactly what has happened 
(repeatedly?), in the matter of non-judicial appointments. It 
H would be of utmost importance therefore, to shield judicial
SUPREME COURT ADVOCATES-ON-RECORD 
463 
ASSOCIATJON v. U.0.1. [JAGDISHSINGH KHEHAR, J.] . 
appointments, from any political-executive interference, to 
A 
preserve the "independence of the judiciary", from the regime 
of the spoils system. Preserving primacy in the judiciary, in 
the matter of selection and appointment of Judges to the, higher 
judiciary would be a safe way to do so. 
205. In conclusion, it is difficult.to hold, in view of the 
B 
factual position expressed above, that the wisdom of 
appointment of Judges, can be shared with the political-
executive. In India, the organic development of civil society, 
has not as yet sufficiently evolved. The expectation from the c 
judiciary, to safeguard the rights of the citizens of this country, 
can only be ensured, by keeping it absolutely insulated and 
independent, from the other organs of governance. In our 
considered view, the present status of the evolution of the "civil 
society" in India, does not augur the participation of the political-
D 
executive establishment, in the selection and appointment of 
Judges to the higher judiciary, or in the matter of transfer of 
Chief Justices and Judges of one High Court, to another. 
XI. 
E 
206. It may be noticed, that one of the contentions 
advanced on behalf of the petitioners was, that after the 121 st 
Constitution Amendment Bill was passed by the Lok Sabha 
and the Rajya Sabha, it was sent to the State Legislatures for 
ratification. Consequent upon the
ratification by the State 
F 
Legislatures, in compliance of the mandate contained in Article 
368, the President granted his assent to 'the same on 
31.12.2014, whereupon it came to be enacted as the 
Constitution (99th Amendment) Act. Section 1 (2) thereof 
provides, that the provisions of the amendment, would come G 
into force from such date as may be notified by the Central 
Government, in the Official Gazette. And consequent upon 
the issuance of the above notification, the amendment was 
brought into force, through a notification, with effect from 
H
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[2015] 13 S.C.R. 
A 
13.4.2015. It was the submission of the petitioners, that the 
jurisdiction to enact the NJAC Act, was acquired by the 
Parliament on 13.4.2015, for the simple reason, that the same 
could not have been enacted whilst the prevailing Articles 
124(2) and 217(1) were in force, as the same, did not provide 
B for appointments to be made by a body such as the NJAC. It 
was submitted, that the NJAC Act was promulgated, to 
delineate the procedure to be followed by the NJAC while 
recommending appointments of Judges and Chief Justices, 
to the higher judiciary. It was contended, that procedure to be 
C followed by the NJAC could not have been legislated upon by 
the Parliament, till the Constitution was amended, and the 
NJAC was created, as a constitutional entity for the selection 
and appointment (as also, transfer) of Judges at the level of 
the higher judiciary. The NJAC, it was asserted, must be 
D deemed to have been created, only when the Constitution (99th 
Amendment) Act, was brought into force, with effect from 
13.4.2015. It was submit~ed, that the NJAC Act received the 
assent of the President on 31.12.2014 i.e., on a date when 
E the NJAC had not yet come into existence. For this, learned 
counsel had placed reliance on theA.K. Roy case49, to contend, 
that the constitutional amendment in the instant case would 
not come into force on 13.12.2014, but on 13.4.2015. 
207. A complementary additional submission was 
F
advanced on behalf of the petitioners, by relying upon the same 
sequence of facts. It was contended, that the power of veto 
vested in two Members of the NJAC, through the second 
proviso under Section 5(2) of the NJAC Act (in the matter of 
appointment of the Chief Justice and Judges of the Supreme 
G Court), and Section 6(6) of the NJAC Act (in the matter of 
appointment of Chief Justices and Judges of High Courts )-could 
not be described as laying down any procedure. It was 
submitted, that the above provisions clearly enacted 
substantive law. Likewise, it was contended, that the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
465 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
amendment of the words "after consultation with such of the 
A 
Judges ofthe Supreme Court and the High Courts in the States 
as the President may deem necessary for the purpose", on 
being substituted by the words "on the recommendation of the 
National Judicial Appointments Commission referred to in 
Article 124A", as also, the deletion of the first proviso under B 
Article 124(2) which mandated consultation with the Chief 
Justice of India, and the substitution of the same with the words, 
"on the recommendation of the National Judicial Appointments 
Commission referred to under Article 124A", would result in 
the introduction of an absolutely new regimen. It was submitted, C 
that such substitution would also amount to an amendment of 
the existing provisions of the Constitution, and as such, the 
same would also require the postulated ratification provided 
in respect of a constitutional amendment, under the proviso to D 
Article 368(2). And since the NJACAct, had been enacted as 
an ordinary legislation, the same was liable to be held as non 
est on account of the fact, that the procedure contemplated 
under Article 368, postulated for an amendment to the 
Constitution, had not been followed. 
E 
208. Since it was not disputed, that the Parliament had 
indeed enacted Rules of Procedure and the Conduct of 
Business of Lok Sabha under Article 118, which contained 
Rule 66
postulating, that a Bill which was dependent wholly or 
partly on another Bill could be "introduced" in anticipation of F 
the passing of the Bill, on which it was dependent. Leading to 
the inference, that the 121 st Constitution Amendment Bill, on 
which the NJAC Bill was dependent, could be taken up for 
consideration (by introducing the same in the Parliament), but 
could not have been passed till after the passing of the G 
Constitution (99th Amendment) Act, on which it was dependent. 
209. Whilst there can be no doubt, that viewed in the 
above perspective, we may have unhesitatingly accepted the 
above submission, and in fact the same was conceded by the H
466 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Attorney General to the effect, that the dependent Bill can" ... 
be taken up for consideration and passing in the House, only 
after the first Bill has been passed by the House ... ". But our 
attention was invited by the Attorney General to Rule 388, which 
authorises the Speaker to allow the suspension, of a particular 
B rule (which would include Rule 66). If Rule 66 could be 
suspended, then Rule 66 would not have the impact, which the 
petitioners seek through the instant submission. It is not a 
matter ofdispute, that the then Union Minister in charge of Law 
and Justice had sought (under Rule 388 of the Rules of 
C Procedure and Conduct of Business of the Lok Sabha) the 
suspension of the proviso to Rule 66.And on due consideration, 
the Lok Sabha had suspended the proviso to Rule 66, and 
had taken up the NJAC Bill for consideration. Since the validity 
0 
of Rule 388 is not subject matter of challenge before us, it is 
apparent, that it was well within the competence of the 
Parliament, to have taken up for consideration the NJAC Act, 
whilst the Constitution (121 st Amendment) Bill, on which the 
NJAC Act was fully dependent, had still not been passed, in 
E anticipation of the passing of the Constitution ( 121 st 
Amendment) Bill. 
210. The principle contained in Rule 66, even ifthe said 
rule had not been provided for, would always be deemed to 
have been impliedly there. In the absence of a foundation, no 
F
superstructure can be raised. The instant illustration is 
relateable to Rule 66, wherein the pending Bill would constitute 
the foundation, and the Bill being introduced in anticipation of 
the passing of the pending Bill, would constitute the 
superstructure. Therefore, in the absence of the foundational 
G Bill (-in the instant case, the 121 st Constitution Amendment 
. Bill), there could be no question of raising the infrastructure (-
in the iristant case, the NJAC Act). In our considered view, it 
was possible in terms of Rule 388, to introduce and pass a 
H Bill in the Parliament, in anticipation of the passing of the
SUPREME COURT ADVOCATES-ON-RECORD 
467 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
dependent Bill-the Constitution (121 stAmendment) Bill. But, 
A 
it is still not possible to contemplate, that a Bill which is 
dependent wholly (or, in part) upon another Bill, can be passed 
and brought into operation, till the dependent Bill is passed 
and brought into effect. 
211. It is however necessary to record, that even though 
the position postulated in th~ preceding paragraphs, as 
canvassed by the Attorney General, was permissible, the 
passing of the dependent enactment i.e., the NJAC Bill, could 
B 
not have been given effect to, till the foundational enactment c 
had become operational. In the instant case, the NJAC Act, 
would have failed the test, if it was given effect to, from a date 
prior to the date on which, the provisions of the enactment on 
which it was dependent- the Constitution (99th Amendment) 
Act, became functional. In other words, the NJAC Act, would 
D 
be stillborn, if the dependent provisions, introduced by way of 
a constitutional amendment, were yet to come into force. 
Stated differently, the contravention of the principle 
contemplated in Rule 66, could not have been overlooked, 
despite the suspension of the said rule, and the dependent E 
enactment could not come into force, before the depending/ 
controlling provision became operational. The sequence of 
facts narrated hereinabove reveals, that the dependent and 
depending provisions, were
brought into force simultaneously 
on the same date, i.e., on 13.4.2015. It is therefore apparent, 
F 
that the foundation - the Constitution (99th Amendment) Act, 
was in place, when the superstructure - the NJAC Act, was 
raised. Thus viewed, we are satisfied, that the procedure 
adopted by the Parliament at the time of putting to vote the 
NJAC Bill, or the date on which the NJAC Act received the G 
assent of the President, cannot invalidate the enactment of 
the NJAC ACt, as suggested by the learned courisel for the 
petitioners. 
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[2015] 13 S.C.R. 
A 
212. One is also persuaded to accept the contention 
advanced by the learned Attorney General, that the validity of 
any proceeding, in Parliament, cannot be assailed on the 
ground of irregularity of procedure, in view of the protection 
contemplated through Article 122. Whilst accepting the instant 
B contention, of the learned Attorney General, it is necessary for 
us to record, that in our considered view, the aforestated 
irregularity pointed out by the learned counsel, would be 
completely beyond the purview of challenge, specially because 
it was not the case of the petitioners, that the Parliament did 
C not have the legislative competence to enact the NJAC Act. 
For the reasons recorded hereinabove, it is not possible for 
us to accept, that the NJAC Act was stillborn, or that it was 
liable to be set aside, for the reasons canvassed by the learned 
0 
counsel for the petitioners. 
213. It is also not possible for us to accept, that while 
enacting the NJACAct, it was imperative for the Parliament to 
follow the procedure contemplated under Article 368. Insofar 
as the instant aspect of the matter is c-0ncemed, the Constitution 
E (99th Amendment) Act, amended Articles 124 and 217 (as 
also, Articles 127, 128, 222, 224, 224Aand 231 ), and Articles 
124A to 124C were inserted in the Constitution. While 
engineering the above amendments, the procedural 
requirements contained in Article 368 were admittedly 
F complied
with. It is therefore apparent, that no procedural lapse 
was committed while enacting the Constitution (99th 
Amendment) Act. Article 124C, authorized the Parliament to 
enact a legislation in the nature of the NJAC Act. This could 
validly be done, by following the procedure contemplated for 
G an ordinary legislation. It is not disputed, that such procedure, 
as was contemplated for enacting an ordinary legislation, had 
indeed been followed by the Parliament, after the NJAC Bill 
was tabled in the Parliament, inasmuch as, both Houses of 
H Parliament approved the NJAC Bill by the postulated majority,
SUPREME COURT ADVOCATES-ON-RECORD 
469 
ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and thereupon, the same received the assent of the President A 
on 31.12.2014.· For the above reasons, the instant additional 
submission advanced by the petitioners, cannot also be 
acceded to, and is accordingly declined. 
XII. 
. 214. Mr. Mukul Rohatgi, learned Attorney General for 
India, repulsed the contentions advanced at the hands of the 
petitioners, that vi res of the provisions of the NJAC Act, could 
be challenged, on the ground of being violative of the "basic 
structure" of the Constitution. 
B 
c 
215. The first and foremost contention advanced, at the 
hands of the learned Attorney General was, that the 
constitutional validity of an amendment to the Constitution, 
could only be assailed on the basis of being violative of the D 
"basic structu~e" of the Constitution. Additionally it was 
submitted, that an ordinary legislative enactment (like the NJAC 
Act), could only be assailed on the grounds of lack of legislative 
competence and/or the violation of Article 13 of the 
Constitution. Inasmuch as, the State cannot enact laws, which 
E 
take away or abridge rights conferred in Part Ill of the 
Constitution, or are in violation of any other constitutional 
provision. It was acknowledged, that law made in contravention 
of the provisions contained in Part Ill of the Constitution, or of 
any other constitutional provision, to the extent of such 
F 
contravention, would be
void. Insofar as the instant aspect of 
the matter is concerned, the learned Attorney General, placed 
reliance on the Indira Nehru Gandhi case56, State of Karnataka 
v. Union of lndia88, and particularly to the following observations: 
"238. Mr Sinha also contended that an ordinary law cannot G 
go against the basic scheme or the fundamental backbone 
of the Centre-State relationship as enshrined in the 
Constitution. He put his argument in this respect in a very 
88 (1977) 4 sec 6oa 
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470 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
ingenious way because he felt difficulty in placing it in a 
direct manner by saying that an ordinary law cannot violate 
the basic structure of the Constitution. In the case of Smt 
Indira Nehru Gandhi v. Shri Raj Narain such an argument 
was expressedly rejected by this Court. We may rest 
B 
content by referring to a passage from the judgment of our 
learned brother Chandrachud, J., ... which runs thus: 
c 
D 
E 
"The constitutional amendments may, on the ratio of the 
Fundamental Rights case be tested on the anvil of basic 
structure. But apart from the principle that a case is only 
an authority for what it decides, it does not logically follow 
from the majority judgment in the Fundamental Rights case 
that ordinary legislation must also answer the same test 
as a constitutional amendment. Ordinary laws have to 
answer two tests for their validity: (1) The law must be 
within the legislative competence of the Legislature as 
defined and specified in Chapter I, Part 11 of the 
Constitution and (2) it must not offend against the 
provisions of Articles 13(1) and (2) of the Constitution. 
'Basic structure', by the majority judgment, is not a part of 
the fundamental rights nor indeed a provision of the 
Constitution. The theory of basic structure is woven out of 
the conspectus of the Constitution and the amending power 
is subjected to it because it is a constituent power. The 
F 
power to amend the fundamental instrument
cannot carry 
with it the power to destroy its essential features'- this. in 
brief. is the arch of the theory of basic structure. It is wholly 
out of place in matters relating to the validity of ordinary 
laws made under the Constitution." 
G 
The Court's attention was also drawn to Kuldip Nayar 
v. Union of lndia89, wherein it was recorded: 
"107. The basic structure theory imposes limitation on the 
power of Parliament to amend the Constitution. An 
H 
•• (2006) 7 sec 1
. SUPREME COURT ADVOCATES-ON-RECORD 
4 71 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
amendment to the Constitution under Article 368 could be 
A 
challenged on the ground of violation of the basic structure 
of the Constitution. An ordinarv legislation cannot be so 
challenged. The challenge to a law made, within its 
legislative competence, by Parliament on the ground of 
violation of the basic structure of the Constitution is thus 
B 
not available to the petitioners." 
Last of all, learned Attorney General placed reliance on Ashoka 
Kumar Thakur v. Union of lndia90, and referred to the following 
observations: 
"116. For determining whether a particular feature of the 
Constitution is part of the basic structure or not, it has to 
c 
be examined in each individual case keeping in mind the 
scheme of the Constitution, its objects and purpose and . 
the integrity of the Constitution as a fundamental instrument D 
for the country's governance. It may be noticed that it is 
not open to challenge the ordinary legislations on the basis 
of the basic structure principle. State legislation can be 
challenged on. the question whether it is violative of the 
provisions of the Constitution. But as regards constitutional 
E 
amendments, if any challenge is made on the basis of basic 
structure, it has to be examined based on the basic features 
of the Constitution." 
Based on the afore-quoted judgments, it was the 
assertion of the learned Attorney General, that the validity
of a 
F 
legislative enactment, i.e., an ordinary statute, could not be 
assailed on the ground, that the same was violative of the "basic 
structure" of the Constitution. It was therefore asserted, that 
reliance placed at the hands of the learned counsel, appearing 
for the petitioners, on the Madras Bar Association case35, was G 
not acceptable in law. 
216. The above contention, advanced by the learned 
Attorney General, has been repulsed. For this, in the first 
" (2008) 6 sec 1 
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[2015] 13 S.C.R. 
A 
instance, reliance was placed on Public Services Tribunal Bar 
Association v. State of U.P.91 In the instant judgment, it is seen 
from the observations recorded in paragraph 26, that this Court 
concluded, that the constitutional validity of an ordinary 
legislation could be challenged on only two grounds, namely, 
B for reasons of lack of legislative competence, and on account 
of violation of any fundamental rights guaranteed in Part Ill of 
the Constitution, or of any other constitutional provision. The 
above determination supports the contention advanced by the 
learned Attorney General, who seeks to imply from the above 
C conclusion, that an ordinary legislation cannot be assailed on 
the ground of it being violative of the "basic structure" of the 
Constitution. Despite having held as above, in its final 
conclusion recorded in paragraph 44, it was observed as 
under: 
D 
"44. For the reasons stated above, we find that the State 
Legislature was competent to enact the impugned 
provisions. Further, that the provisions enacted are not 
arbitrary and therefore not violative of Articles 14, 16 or any 
E 
other provisions of the Constitution. They are not against 
the basic structure of the Constitution of India either. 
Accordingly, we do not find any merit in these appeals and 
the same are dismissed with no order as to costs." 
It was pointed out, that it was apparent, that even while 
F determining the validity of an
ordinary legislation, namely, the 
U.P. Public Services (Tribunals) Act, 1976, this Court in the 
aforestated judgment had examined, whether the provisions 
of the assailed legislation, were against the "basic structure" 
of the Constitution, and having done so, it had rejected the 
G contention. Thereby implying, that it was open for an aggrieved 
party to assail, even the provisions of an ordinary legislation, 
based on the concept of "basic structure". In addition to the 
above, reliance was placed on the Kuldip Nayar case89 (also 
H 
•1 (2003) 4 sec 104
SUPREME COURT ADVOCATES-ON-RECORD 
473 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
relied upon by the learned Attorney General), and whilst A 
acknowledging the position recorded in the above judgment, 
that an ordinary legislation could not be challenged on the 
ground of violation of the "basic structure" of the Constitution, 
the Court, in paragraph 108, had observed thus: 
"108. As stated above. "residence" is not the constitutional 
8 
requirement and therefore the question of violation of basic 
structure does not arise." 
It was submitted, that in the instant judgment also, this 
Court had independently examined, whether the legislative c 
enactment in question, namely, the Representation of the 
People (Amendment) Act 40 of 2003, indeed violated the 
"basic structure" of the Constitution. And in so determining, 
concluded that the question of residence was not a 
constitutional requirement, and therefore, th~ question of D 
violation of the "basic structure" did not arise. Learned counsel 
then placed reliance on the M. Nagaraj case36 , wherein it was 
concluded as under: 
"124. Subject to the above, we uphold the constitutional 
validity of the Constitution (Seventy-seventh Amendment) 
E 
Act, 1995; the Constitution (Eighty-first Amendment) Act, 
;woo; the Constitution (Eighty-second Amendment) Act, 
2000 and the Constitution (Eighty-fifth Amendment) Act, 
2001. 
125. We have not examined the validity of individual 
F 
enactments of appropriate States and
that question will be 
gone into in individual writ petition by the appropriate Bench 
in accordance with law laid down by us in the present case." 
217. It was submitted by Dr. Rajeev Dhavan, learned 
G 
senior counsel, that this Court in the M. Nagaraj case36, while 
upholding the constitutional validity of the impugned 
constitutional amendment, by testing the same by applying t~e 
"width test", extended the aforesaid concept to State 
legislations. It was accordingly sought to be inferred, that State 
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A 
legislations could be assailed, not only on the basis of the letter 
and text of constitutional provisions, but also, on the basis of 
the "width test'', which was akin to a challenge raised to a 
legislative enactment based on the "basic structure" of the 
B 
c 
Constitution. 
218. Reliance was then placed on Uttar Pradesh Power 
Corporation Limited v. Rajesh Kumar92, wherein the issue 
under reference had been raised, as is apparent from the 
discussion in paragraph 61, which is extracted below: 
"61. Dr. Rajeev Dhavan, learned senior Counsel, supporting 
the decision of the Division Bench which has declared the 
Rule as ultra vires, has submitted that if M. Nagaraj is 
properly read, it does clearly convey that social justice is 
an overreaching principle of the Constitution like 
D 
seculari.sm, democracy, reasonableness, social justice, 
etc. and it emphasises on the equality code and the 
parameters fixed by the Constitution Bench as the basic 
purpose is to bring in a state of balance but the said balance 
E 
F 
G 
is destroyed by Section 3(7) of the 1994 Act and Rule 8-A 
inasmuch as no exercise has been undertaken during the 
post M. Nagaraj period. In M. Nagraj, there has been 
emphasis on interpretation and implementation, width and 
identity, essence of a right, the equality code and avoidance 
of reverse discrimination, the nuanced distinction between 
the adequacy and proportionality, backward class and
backwardness, the concept of contest specificity as 
regards equal justice and efficiency, permissive nature of 
the provisions and conceptual essence of guided power, 
the implementation in concrete terms which would not 
cause violence to the constitutional mandate; and the effect 
of accelerated seniority and the conditions prevalent for 
satisfaction of the conditions precedent to invoke the settled 
principles." 
H 
•2 (2012) 1sec1
SUPREME COURT ADVOCATES-ON-RECORD 
475 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
The matter was adjudicated upon as under: 
A 
"86. We are of the firm view that a fresh exercise in the 
light of the judgment of the Constitution Bench in M. Nagaraj 
is a categorical imperative. The stand that the constitutional 
amendments have facilitated the reservation in promotion 
B 
with consequential seniority and have given the stamp of 
approval to the Act and the Rules cannot withstand close 
scrutiny inasmuch as the Constitution Bench has clearly 
opined that Articles 16(4-A) and 16(4-B) are enabling 
provisions and the State can make provisions for the same 
C 
on certain basis or foundation. The conditions precedent 
have not been satisfied. No exercise has been undertaken. 
What has been argued with vehemence is that it is not 
necessary as the concept of reservation in promotion was 
already in vogue. We are unable to accept the said 
D 
submission. for when the provisions of the Constitution are 
treated valid with certain conditions or riders. it becomes 
incumbent on the part of the State to appreciate and apply 
the test so that its amendments can be tested and withstand 
the scrutiny on parameters laid down therein." 
E 
In addition to the above judgment, reliance was also 
placed on State of Bihar v. Bal Mukund Sah93, wherein a 
Constitution Bench of this Court, while examining the power of 
the State legislature, to legislate on the subject of recruitment 
of
District Judges and other judicial officers, placed reliance 
F 
on the judgment rendered by this Court in the Kesavananda 
Bharati case 10, which took into consideration five of the 
declared "basic features" of the Constitution, and examined 
the subject matter in question, by applying the concept of 
"separation of powers" between the legislature, the executive G 
and the judiciary, which was accepted as an essential feature 
of the "basic structure" of the Constitution. Finally, reliance 
was placed on Nawal Kishore Mishra v. High Court of 
" (2000) 4 sec 640 
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[2015] 13 S.C.R. 
A 
Judicature of Allahabad94 , wherefrom reliance was placed on 
B 
c 
conclusion no. 20.11, which is extracted below: 
"20.11 Any such attempt by the legislature would be 
forbidden by the constitutional scheme as that was found 
on the concept relating to separation of powers between 
the legislature, the executive and the judiciary as well as 
the fundamental concept of an independent judiciary as 
both the concepts having been elevated to the level of basic 
structure of the Constitution and are the very heart of the 
constitutional scheme." 
It was therefore the contention of the learned senior 
counsel, that it was not justified for the respondents to raise 
the contention, that the validity of the provisions of the NJAC 
Act could not be tested on the touchstone of the concept of the 
o "basic structure" of the Constitution. 
219. It needs to be highlighted, that the issue under 
reference arose on account of the fact, that learned counsel 
for the petitioners had placed reliance on the judgment of this 
Court, in the Madras Bar Association case35, wherein this 
E 
Court had examined the provisions of the National Tax Tribunal 
Act, 2005, and whilst doing so, had held the provisions of the 
above legislative enactment as ultra vires the provisions of 
the Constitution, on account of their being violative of the "basic 
F 
structure" of the Constitution. It is therefore quite obvious, that 
the instant contention was
raised, to prevent the learned 
counsel for the petitioners, from placing reliance on the 
conclusions recorded in the Madras Bar Association case35. 
220. We have given our thoughtful consideration to the 
G above contentions. The "basic structure" of the Constitution, 
presentlyinter alia includes the supremacy of the Constitution, 
the republican and democratic form of Government, the "federal 
character" of distribution of powers, secularism, "separation 
of powers" between the legislature, the executive, and the 
H 
•• (2015) 5 sec 479
SUPREME COURT ADVOCATES-ON-RECORD 
477 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
judiciary, and "independence of the judiciary". This Court, while A 
carving out each of the above "basic features", placed reliance 
on one or more Articles of the Constitution (some times, in 
conjunction with the preamble of the Constitution). It goes 
without saying, that for carving out each of the "core" or "basic 
features/basic structure" of the Constitution, only the provisions 
B 
of the Constitution are relied upon. It is therefore apparent, 
that the determination of the "basic features" or the "basic 
structure", is made exclusively from the provisions of the 
Constitution. Illustratively, we may advert to "independence of 
the judiciary" which has been chosen because of its having C 
been discussed and debated during the present course of 
consideration. The deduction of the concept of "independence 
of the judiciary" emerged from a collective reading of Articles 
12, 36 and 50. It is sometimes not possible, to deduce the 
D 
concerned "basic structure" from a plain reading of the 
provisions of the Constitution. And at times, such a deduction 
is made, from the all-important silences hidden within those 
Articles, for instance, the "primacy of the judiciary" explained 
in the Samsher Singh case11 the Sankalchand Himatlal Sheth 
E 
case 5 and the Second Judges case, wherein this Court while 
interpreting Article 74 along with Articles 124, 217 and 222, in 
conjunction with
the intent of the framers of the Con?titution 
gathered from the Constituent Assembly debates, and the 
conventions adhered to by the political-executive authority in 
F 
the matter of appointment and transfer of Judges of the higher 
judiciary, arrived at the conclusion, that "primacy of the judiciary'' 
was a constituent of the "independence of the judiciary" which 
was a "basic feature" of the Constitution. Therefore, when a 
plea is advanced raising a challenge on the basis of the G 
violation of the "basic structure" with reference to the 
"independence of the judiciary", its rightful understanding is, 
and has to be, that Articles 12, 36 and 50 on the one hand, 
and Articles 124, 217 and 222 on the other, (read collectively 
and harmoniously) constitute the basis thereof. Clearly, the 
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[2015] 13 S.C.R. 
A 
"basic structure" is truly a set of fundamental foundational 
principles, drawn from the provisions of the Constitution itself. 
These are not fanciful principles carved out by the judiciary, at 
its own. Therefore, if the conclusion drawn is, that the 
"independence of the judiciary" has been transgressed, it is to 
B 
be understood, that rule/principle collectively emerging from 
the above provisions, had been breached, or that the above 
Articles read together, had been transgressed. 
221. So far as the issue of examining the constitutional 
C validity of an ordinary legislative enactment is concerned, all 
the constitutional provisions, on the basis whereof the 
. concerned "basic feature" arises, are available. Breach of a 
single provision of the Constitution, would be sufficient to render 
the legislation, ultra viresthe Constitution. In such view of the 
o matter, it would be proper to accept a challenge based on 
constitutional validity, to refer to the particular Article(s), 
singularly or collectively, which the legislative enactment 
violates. And in cases where the cumulative effect of a number 
of Articles of the Constitution is stated to have been violated, 
E reference should be made to all the concerned Articles, 
including the preamble, if necessary. The issue is purely 
technical. Yet, if a challenge is raised to an ordinary legislative 
enactment based on the doctrine of "basic structure", the same 
cannot
be treated to suffer from a legal infirmity. That would 
F only be a technical flaw. That is how, it will be possible to explain 
the observations made by this Court, in the judgments relied 
upon by the learned counsel for the petitioners. Therefore, when 
a challenge is raised to a legislative enactment based on the 
cumulative effect of a number of Articles of the Constitution, it 
G is not always necessary to refer to each of the concerned 
Articles, when a cumulative effect of the said Articles has 
already been determined, as constituting one of the "basic 
features" of the Constitution. Reference to the "basic structure", 
H while dealing with an ordinary legislation, would obviate the
SUPREME COURT ADVOCATES-ON-RECORD 
479 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
necessity of recording the same conclusion, which has already A 
been scripted while interpreting theArticle(s) under reference, 
harmoniously. We would therefore reiterate, that the "basic 
structure" of the Constitution is inviolable, and as such, the 
Constitution cannot be amended so as to negate any "basic 
features" thereof, and so also, if a challenge is raised to an 
B 
ordinary legislation based on one of the "basic features" of the 
Constitution, it would be valid to do so. If such a challenge is 
accepted, on the ground of violation of the "basic structure", it 
would mean that the bunch of Articles of the Constitution 
(including the preamble thereof, wherever relevant), which 
C 
constitute the particular "basic feature", had been violated. We 
must however credit the contention of the learned Attorney 
General by accepting, that it would be technically sound to refer 
to the Articles which are violated, when an ordinary legislation D 
is sought to be struck down, as being ultra vires the provisions 
of the Constitution. But that would not lead to the inference, 
that to strike down an ordinary legislative enactment, as being 
violative of the "basic structure", would be wrong. We therefore 
find no merit in the contention advanced by the learned Attorney 
E 
General, but for the technical aspect referred to hereinabove. 
XIII. 
222. Various challenges were raised to the
different 
provisions of the NJAC Act. First and foremost, a challenge 
F 
was raised to the manner of selection and appointment of the 
Chief Justice of India. Section 5(1) of the NJAC Act, it was 
submitted, provides that the NJAC would recommend the 
senior most Judge of the Supreme Court, for being appointed 
as Chief Justice of India, subject to the condition, that he is 
G 
considered "fit" to hold the office. It was contended, that the 
Parliament had been authorized by law to regulate the 
procedure for the appointment of the Chief Justice of India, 
under Article 124C. It was submitted, that the NJAC should 
have been allowed to frame re~ulations, with reference to the 
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[2015] 13 S.C.R. 
A 
manner of selection and appointment of Judges to the higher 
judiciary including the Chief Justice of India. 
223. It was submitted, that the term "fit", expressed in 
Section 5(1) of the NJAC Act, had not been elaborately 
B described. And as such, fitness would be determined on the 
subjective satisfaction of the Members of the NJAC. It was 
acknowledged, that even though the learned Attorney General 
had expressed, during the course of hearing, that fitness only 
meant" ... mental and physical fitness ... ", a successor Attorney 
C General may view the matter differently, just as the incumbent 
Attorney General has differed with the concession recorded 
on behalf of his predecessor (in the Third Judges case), even 
though they both represent the same ruling political party. And, 
it was always open to the Parliament to purposefully define 
o the term "fit", in a manner which could sub-serve the will of the 
executive. It was pointed out, that even an ordinance could be 
issued without the necessity, of following the procedure of 
enacting law, to bring in a person of the choice of the political-
executive. It was contended, that the criterion of fitness could 
E be defined or redefined, as per the sweet will of the non-judicial 
authorities. 
224. It was pointed out, that there was a constitutional 
convention,whereunderthe senior most Judge of the Supreme 
F 
Court, has always been appointed as Chief Justice of India. 
And
that, the aforesaid convention had remained unbroken, 
even though in some cases the tenure of the appointee had 
been extremely short, and may not have enured to the 
advantage of the judiciary, as an institution. Experience had 
G shown, according to learned counsel, that adhering to the 
practice of appointing the senior most Judge as the Chief 
Justice of India, had resulted in institutional harmony and 
collegiality amongst Judges, which was extremely important 
for the health of the judiciary, and also, for the independence 
H of the judiciary. It was submifted, that it would be just and
SUPREME COURT ADVOCATES-ON-RECORD 
481 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
appropriate, at the present juncture, to understand the width of A 
the power, so as to prevent any likelihood of its misuse in future. 
225. It was suggested, that various ways and means 
could be devised to supersede senior Judges, to bring in 
favourites. Past experience had shown, that the executive had 
8 
abused its authority, when it departed from the above seniority 
rule in April 1973, by superseding J.M. Shelat, the senior most 
Judge, and even the next two Judges in the order of seniority 
after him, namely, K.S. Hegde andA.N. Grover, while appointing 
the fourth senior most Judge A. N Ray, as the Chief Justice of c 
India. Again in January 1977 on the retirement of A.N. Ray, 
CJ., the senior most Judge H.R. Khanna, was ignored, and 
the.next senior most Judge M.H. Beg, was appointed as the 
Chief Justice of India. Such control in the hands of the 
executive, according to learned counsel, would cause immense D 
inroads in the decision making process. And could result in, 
Judges trying to placate and appease the political-executive 
segment, aimed at personal gains and rewards. 
226. The submission noticed above, was sought to be 
illustrated through the following instance. It was contended, 
E 
that it would be genuine and legitimate, for the Parliament to 
enact by law, that a person would be considered "fit" for 
appointment as Chief Justice of India, only if he had a
minimum 
left over tenure of.two years. Such an enactment would have a · F 
devastating effect, eve·n though it would appear to be 
innocuously legitimate. It was pointed out, that out of the 41 
Chief Justices of India appointed till date, only 12 Chief Justices 
of India had a tenure of more than two years. If such action, as 
has been illustrated above, was to be taken at the hands of G 
the Parliament, it was bound to cause discontent to those who 
had a legitimate expectation to hold the office of Chief Justice 
of India, under the seniority rul.e, which had been in place for 
all this while. 
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A 
227. It was asserted, that the illustration portrayed in the 
foregoing paragraph, could be dimensionally altered, by 
prescribing different parameters, tailor-made for 
accommodating a favoured individual. It was submitted, that 
the Parliament should never be allowed the right to create 
B uncertainty, in the matter of selection and appointment of the 
Chief Justice of India, as the office of the Chief Justice of India 
was pivotal, 9nd shouldered extremely onerous 
responsibilities. The exercise of the above authority by the 
Parliament, it was pointed out, could/would seriously affect the 
C "independence of the judiciary''. 
228. In the above context, reference was also made, to 
the opinion expressed by renowned persons, having vast 
experience in judicial institutions, effectively bringing out the 
o veracity of the contention advanced. Reference in this regard 
was made to the observations of M.C. Chagla, in his book, 
"Roses in December - An Autobiography", wherein he 
described the impact of supersession on Judges, who by virtue 
of the existing convention, were in line to be the Chief Justice 
E of India, but were overlooked by preferring a junior. The position 
F 
G 
H 
was expressed thus: 
The effect of these supersessions was most deleterious 
on the judges of the Supreme Court who were in the line of 
succession to the Chief Justiceship. -Each eyed the other 
with suspicion and tried to ·outdo him in proclaiming
his 
loyalty to the Government either in their judgments or even 
on public platforms. If a judge owes his promotion to the 
favour of Government and not to his own intrinsic merit, 
then the independence of the judiciarv is inevitably lost." 
H.R. Khanna, J., (in his book - "Neither Roses Nor 
Thorns") expressed the position as under: 
"A couple of days before the pronouncement of judgment 
the atmosphere of tension got aggravated because all kinds 
of rumours started circulating and the name of the
SUPREME COURT ADVOCATES-ON-RECORD 
483 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
successor of the Chief Justice was not being announced. 
A 
The announcement came on the radio after the judgment 
was pronounced and it resulted in the supersession of the 
three senior judges. 
I felt extremely perturbed because in my opinion it was 
bound to generate fear complex or hopes of reward and 
B 
thus undermine the independence of the judiciary. 
Immediately on hearing the news I went to the residence 
of Justice Hegde. I found him somewhat tense, as anyone 
in that situation would be, but he was otherwise calm. He 
told me that he, as well as Justice Shelat and Justice 
C 
Grover who had been superseded. were tendering their 
resignations. 
After the resignation of She lat, Hegde and Grover, the court 
acquired a new complexion and I found perceptible change 
D 
in the atmosphere. Many things happened which made 
one unhappy and I thought the best course was to get 
engrossed in the disposal of judicial work. The judicial 
work had always an appeal for me and I found the exclusive 
attention paid to it to be rewarding as well as absorbing. 
E 
One of the new trends was the change in the approach of 
the court with a view to give tilt in favour of upholding the 
orders of the government. Under the cover of highsounding 
words like social justice the court passed orders, the effect 
of which was to unsettle settled principles and dilute or 
F 
undo the dicta laid down in the
earlier cases." 
In this behalf, reference was also made to the 
observations of H.M. Seervai (in "Constitutional Law of India-
A Critical Commentary"}, which are as follows: 
"In Sankalchand Sheth's Case, Bhagwati J. after G 
explaining why the Chief Justice of India had to be 
consulted before a judge could be transferred to the High 
Court of another State, said: "I think it was Mr. Justice 
Jackson who said 'Judges are more often bribed by H
484 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
their ambition and loyalty rather than by money'... In my 
submission in quoting the above passage Bhagwati J. 
failed to realize that his only loyalty was to himself for. 
as will appear later, he was disloyal. inter alia. to his 
Chief. Chandrachud C.J. in order to fulfil his own 
ambition to be the Chief Justice of India as soon as 
possible. That Bhagwati J. was bribed by that ambition 
will be clear when I deal with his treatment in the Judges' 
Case of Chief Justice Chandrachud's part in the case 
of Justice Kumar and Singh C.J. It will interest the reader 
to know that the word "ambition" is derived from "ambit, 
canvass for votes.'', ... Whether Bhagwati J. canvassed 
the votes of one or more of his brother judges that they 
should disbelieve Chief Justice Chandrachud's affidavit 
in reply to the affidavit of Singh C.J. is not known: but 
had he succeeded in persuading one or more of his 
brother judges to disbelieve that affidavit. Chandrachud 
C.J. would have resigned.and Justice Bhagwati's 
ambition to be the next Chief Justice of India. would. in 
all probability, have been realised. However. his attempt 
to blacken the character and conduct of Chandrachud 
C.J. proved futile because 4 of his brother judges 
accepted and acted upon the Chief Justice's affidavit 
and held that the transfer of Singh C.J. to Madras was 
valid.'' 
229. It was submitted, that leaving the issue of 
determination of
fitness, with the Parliament, was liable to fan 
ambitions of Judges, and was likely to make the Judges loyal, 
to those who could satisfy their ambitions. It was therefore 
G emphasized, that Section 5(1 ), which created an ambiguity, in 
H 
·the matter of appointment to the office of Chief Justice of India, 
had the trappings of being abused to imperil "independence 
of the judiciary'', and therefore, could not be permitted to remain 
on the statute-book, irrespective of the assurance of the
SUPREME COURT ADVOCATES-ON-RECORD 
485 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Attorney General, that for the purpose in hand, the term "fit" 
A 
meant" ... mental and physical fitness ... ". 
230. It was also contended, that while recommending 
names for appointment of a Judge to the Supr_eme Court, the 
concerned Judges' seniority in the cadre of Judges (of High 
B 
Courts), was liable to be taken as the primary consideration, 
coupled with his ability and merit. It was submitted, that the 
instant mandate contained in the first proviso under Section 
5(2) of the NJAC Act, clearly breached the convention of 
regional representation in the Supreme Court. Since the c 
"federal character'', of distribution of powers, was also one of 
the recognized "basic structures'', it was submitted, that 
regional representation could not have been overlooked. 
231. Besides the above, the Court's attention was invited 
to the second proviso under Section 5(2), which forbids the D 
NJAC from making a favourable recommendation, if any two 
Members thereof, opposed the nomination of a candidate. It 
was contended, that placing the power of veto, in the hands of 
two Members of the NJAC, would violate the recommendatory 
power expressed in Article 124B. In this behalf, it was 
E 
contended, that the above position would entitle two "eminent 
persons"-lay persons (if the submission advanced by the 
learned Attorney General is to be accepted), to defeat a 
unanimous recommendation of
the Chief Justice of India and 
F 
the two senior most Judges of the Supreme Court. And would 
also, negate the primacy vested in the judiciary, in the matter 
of appointment of Judges, to the higher judiciary. 
232. It was submitted, that the above power of veto 
exercisable by two lay persons, or alternatively one lay person, 
G 
in conjunction with the Union Minister in charge of Law and 
Justice, would cause serious inroads into the "independence 
of the judiciary". Most importantly, it was contended, that neither 
the impugned constitutional amendment, nor the provisions of 
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[2015] 13 S.C.R. 
A 
the NJAC Act, provided for any quorum for holding meetings 
of the NJAC. And as such, quite contrary to the contentions 
advanced at the hands of the learned Attorney General, a 
meeting of the NJAC could not be held, without the presence 
of the all Members of the NJAC. In order to support his above 
B contention, he illustratively placed reliance on the Constitution 
(122nd Amendment) Bill, 2014 (brought before the Parliament, 
by the same ruling political party, which had amended the 
Constitution, by tabling the Constitution (121 st Amendment) 
Bill, 2014. The objective sought to be achieved under the above 
C 
Bill was, to insert a new Article 279A. The new Article 279A 
created the Goods and Services Tax Council. Sub-Article (7) 
of Article 279A postulates, that" ... One-half of the total number 
of Members of the Goods and Services Tax Council. .. " would 
0 
constitute the quorum for its meetings. And furthermore, that 
" ... Every decision of the Goods and Services Tax Council 
would be taken at a meeting, by a majority of not less than . 
three-fourths of the weighted votes of the members present 
and voting ... ". Having laid down the above parameters, in the 
E 
Bill which followed the Bill, that led to the promulgation of the 
impugned Constitution (99thAmendment)Act, it was submitted, 
that the omission of a quorum for the functioning of the NJAC, 
and the omission of quantifying the strength required for valid
decision making, vitiated the provision itself. 
F 
233. The contention advanced at the hands of the learned 
counsel for the petitioners, as has been noticed in the foregoing 
paragraph, does not require any detailed examination, as the 
existing declared legal position, is clear and unambiguous. In 
this behalf, it may be recorded, that in case a statutory 
G provision vests a decision making authority in a body of persons 
without stipulating th.e minimum quorum, then a valid meeting 
can be held only if the majority of all the members of the body, 
deliberate in the process of decision making. On the same 
H analogy therefore, a valid decision by such a body will
SUPREME COURT ADVOCATES-ON-RECORD 
487 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
necessitate a decision by a simple majority of all the members A 
of the body. If the aforesaid principles are made applicable to 
the NJAC, the natural outcome would be, that a valid meeting 
of the NJAC must have at least four Members participating in 
a six-Member NJAC. Likewise, a valid decision of the NJAC 
can only be taken (in the absence of any prescribed · B 
prerequisite), by a simple majority, namely, by at least four 
Members of the NJAC (three Members on either side, would 
not make up the simple majority). We are satisfied, that the 
provisions of the NJAC Act which mandate, that the NJAC 
would not make a recommendation in favour of a person for C 
appointment as a Judge of the High Court or of the Supreme 
· Court, if any two Members thereof did not agre·e with such 
recommendation, cannot be considered to be in violation of 
the rule/principle expressed above. As a matter of fact, the 
D 
NJAC Act expressly provides, that if any two Members thereof 
did not agree to any particular proposal, the NJAC would not 
make a recommendation. There is nothing in law, to consider 
or treat the aforesaid stipulations in the second proviso to 
Section 5(2) and Section 6(6) of the NJAC Act, as E 
unacceptable. The instant submission advanced at the hands 
of the learned counsel for the petitioners is therefore liable to 
be rejected, and is accordingly rejected. 
234. We have also
given our thoughtful consideration to 
the other contentions advanced at the hands of the learned 
F 
counsel forthe petitioners, with reference to Section 5 of the 
NJAC Act. We are of the view, that it was not within the realm 
of Parliament, to subject the process of selection of Judges to 
the Supreme Court, as well as, to the position of Chief Justice 
of India, in uncertain and ambiguous terms. It was imperative G 
to express, the clear parameters of the term "fit", with reference 
to the senior most Judge of the Supreme Court under Section 
5 of the NJAC Act. We are satisfied, that the term "fit" can be 
tailor-made, to choose a candidate far below in the seniority H
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[2015] 13 S.C.R. 
A 
list. This has been adequately demonstrated by the learned 
co'unsel for the petitioners. 
235. The clear stance adopted by the learned Attorney 
General, that the term "fit" expressed in Section 5(1) of the 
S NJAC Act, had been accepted by the Government, to mean 
and include, only " ... mental and physical fitness ... ", to 
discharge the onerous responsibilities of the office of Chief 
Justice of India, and nothing more. Such a statement cannot, 
and does not, bind successor Governments or the posterity 
c for all times to come. The present wisdom, cannot bind future 
generations. And, it was exactly for this reason, that the 
respondents could resile from the statement made by the then 
Attorney General, before the Bench hearing the Third Judges 
case, that the Union of India was not seeking a review or 
o reconsideration of the judgment in the Second Judges case 
(that, it had accepted to treat as binding, the decision in the 
Second Judges case). And yet, during the course of hearing 
of the present case, the Union of India did seek a 
E 
reconsideration of the Second Judges case. 
236. lnsofaras the challenge to Section 5(1) of the NJAC 
Act is concerned, we are satisfied to affirm and crystalise the 
position adopted by the Attorney General, namely, that the term 
"fit" used in Section 5(1) would be read to mean only" ... mental 
F 
and physical fitness ... ". If that is done, it would be legal and 
constitutional.
However, if the position adopted breached the 
"independence of the judiciary", in the manner suggested by 
the learned counsel for the petitioners, the same would be 
assailable in law. 
G 
237. We will now endeavour, to address the second 
H 
submission with reference to Section 5 of the NJAC Act. 
Undoubtedly, postulating "seniority" in the first proviso under 
Section 5(2) of the NJAC Act, is a laudable objective. And if 
seniority is to be supplemented and enmeshed with "ability
SUPREME COURT ADVOCATES-ON-RECORD 
489 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and merit", the most ideal approach, can be seen to have been A 
adopted. But what appears on paper, may sometimes not be 
correct in practice. Experience shows, that Judges to every 
High Court are appointed in batches, each batch may have 
just two or three appointees, or may sometimes have even ten 
or more individuals. A group of Judges appointed to one High 
B 
Court, will be separated from the lot of Judges appointed to 
another High Court, by just a few days, or by just a few weeks, 
and sometimes by just a few months. In the all India seniority 
of Judges, the complete batch appointed on the same day, to 
one High Court, will be placed in a running serial order (in 
C 
seniority) above the other Judges appointed to another High 
Court, just after a few days or weeks or months. Judges 
appointed later, will have to be placed en masse below the 
earlier batch, in seniority. If appointment of Judges to the 
D 
Supreme Court, is to be made on the basis of seniority (as a 
primary consideration), then the earlier batch would have 
priority in the matter of elevation to the Supreme Court. And 
hypothetically, ifthe batch had ten Judges (appointed togetber 
to a particular High Court), and if all of them have proved 
E 
themselves able and meritorious as High Court Judges, they 
will have to be appointed one after the other, when vacancies 
of Judges arise in the Supreme Court. In that
view of the matter, 
Judges from _the same High Court would be appointed to the 
Supreme Court, till the entire batch is exhausted. Judges from 
F 
the same High Court, in the above situation where the batch 
comprised often Judges, will occupy a third of the total Judge 
positions in the Supreme Court. That wo1.1ld be clearly 
unacceptable, forthe reasons indicated by the learned counsel 
for the petitioners. We also find the position, unacceptable in law. 
G 
238. Therefore, insofar as Section 5(2) of the NJAC Act 
is concerned, there cannot be any doubt, that consideration of 
Judges on the basis of their seniority, by treating the same as 
a primary consideration, would adversely affect the present 
H
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[2015] 13 S.C.R. 
A 
convention of ensuring representation from as many State High 
Courts, as is possible. The convention in vogue is, to maintain 
regional representation. For the reasons recorded above, the 
first proviso under Section 5(2) is liable to be struck down and 
set aside. 
B 
Section 6(1) applies to appointment of a Judge of a High 
Court as Chief Justice of a High Court. It has the same seniority 
connotation as has been expressed hereinabove, with 
reference to the first proviso under Section 5(2). For exactly 
c the same reasons as have been noticed above, based on 
seniority (as a primary consideration), ten High Courts in 
different States could have Chief Justices drawn from one 
parent High Court. Section 6(1) of the NJACActwas therefore 
liable to meet the same fate, as the first proviso under Section 
D 5(2). 
239. We are also of.the considered view, that the power 
of veto vested in any two Members of the NJAC, would 
adversely impact primacy of the judiciary, in the matter of 
selection and appointment of Judges to the high.er judiciary 
E 
(as also their transfer). Details in this behalf have already been 
recorded in part VI II hereinabove. Section 6(6) of the NJAC 
Act, has the same connotation as the second proviso under 
Section 5(2), and Section 6(6) of the NJACAct would therefore 
F 
meet the same fate, as Section 5(2). For the reasons recorded 
hereinabove, we are satisfied, that Sections 5(2) and 6(6) of 
the
NJAC Act also breach the "basic structure" of the 
Constitution, wtth reference to the "independence of the 
judiciary" and the "separation of powers". Sections 5(2) and 
G 6(6), in our considered view, are therefore, also liable to be 
declared as ultra vires the Constitution. 
H 
240. A challenge was also raised by the learned counsel 
for the petitioners to Section 7 of the NJAC Act. It was 
asserted, that on the recommendation made by the NJAC,