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
[2015] 13 S.C.R. 1 
SUPREME COURT ADVOCATES-ON-RECORD 
A 
ASSOCIATION AND ANOTHER 
v. 
UNION OF INDIA 
(Writ Petition (Civil) No. 13 of 2015) 
OCTOBER 16, 2015 
[JAGDISH SINGH KHEHAR, J. CHELAMESWAR, 
MADAN B. LOKUR, KURIAN JOSEPH, 
ADARSH KUMAR GOEL, JJ.] 
B 
c 
Constitution (Ninety-ninth Amendment) Act, 2014 -
Collegium system of appointment of Judges to the Supreme 
Cowt, and Chief Justices and Judges to the High Courts; 
and transfer of Chief Justices and Judges of High Courts 
from one High Court, to another- New scheme contemplated D 
for replacing the Collegium system - Six-member National 
Judicial Appointments Commission (NJAC) set up under the 
aegis of Constitution (Ninety-ninth Amendment) Act, 2014 
read with the National Judicial Appointments Commission 
E 
Act, 2014-NJAC composed of: (a) the Chief Justice of India, 
Chairperson, ex officio; ·(b) two other senior Judges of 
Supreme Court, next to the Chief Justice of India as 
Members, ex officio; (c) the Union Minister in charge of Law 
and Justice as Member, ex officio; (d) two eminent persons, 
F 
to be nominated as Members - Constitution (Ninety-ninth 
Amendment) Act, 2014 - Va/idjty of- Held (per order of the 
Court): It is unconstitutional and void - National Judicial 
Appointments Commission Act, 2014 - Judiciary- Higher 
Judiciary- Constitutional Courts -Appointment and transfer G 
of Judges - Procedure . 
National Judicial Appointments Commission Act, 2014 
- Collegium system of appointment of Judges to
the Supreme 
Court, and Chief Justices and Judges to the High Courts; 
h
2 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A and transfer of Chief Justices and Judges of High Courts 
from one High Court, to another- New scheme contemplated 
for replacing the Col/egium system - Six-member National 
Judicial Appointments Commission (NJAC) set up under the 
aegis of Constitution (Ninety-ninth Amendment) Act, 2014 
B read with the Nationai Judicial Appointments Commission 
Act, 2014- NJAC composed of: (a) the Chief Justice of India, · 
Chairperson, ex officio; (b} two other senior Judges of 
Supreme Court, next to the Chief Justice of India as 
Members, ex officio; (c) the Union Minister in charge of Law 
C and Justice as Member, ex officio; (d} two eminent persons, 
to be nominated as Members -
National Judicial 
Appointments Commission Act, 2014 - Validity of - Held 
(per order of the Court): It is unconstitutional and void -
0 
Constitution (Ninety-ninth Amendment) Act, 2014- Judiciary 
- Higher Judiciary - Constitutional Courts - Appointment 
and transfer of Judges- Procedure. 
Judiciary - Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges- Procedure- Col/egium 
E system of appointment of Judges to the Supreme Court, and 
Chief Justices and Judges to the High Courts; and transfer 
of Chief Justices and Judges of High Courts from one High 
Court, to another- New scheme contemplated for replacing 
the Collegium system -
Six-member National Judicial 
F Appointments Commission (NJAC) set up under the aegis 
of Constitution
(Ninety-ninth Amendment) Act, 2014 read with 
the National Judicial Appointments Commission Act, 2014 
-
NJAC composed of: (a) the Chief Justice of India, 
Chairperson, ex officio; (b) two other senior Judges of 
G 
Supr~me Court, next to the Chief Justice of India as 
Members, ex officio; (c) the Union Minister in charge of Law 
and Justice as Member, ex officio; (d) two eminent persons, 
to be nominated as Members- Held (per order of the Court): 
The collegium system, as existing prior to the Constitution 
H
SUPREME COURT ADVOCATES-ON-RECORD 
3 
ASSOCIATION v. U.0.1. 
(Ninety-ninth Amendment) Act, 2014, declared to be A 
operative - However, to consider introduction of appropriate 
measures, if any, for an improved working of the "collegium 
system", matter listed on a subsequent date ..:. Constitution 
(Ninety-ninth Amendment) Act, 2014 - National Judicial 
Appointments Commission Act, 2014. 
B 
Judiciary ~ Higher judiciary - Constitutional Courts -
Selection and appointment of Judges -
Parliament, if 
empowered to provide for an alternative procedure - Held 
(per Khehar, J.): It is open to the Parliament, while exercising C 
its 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 D 
Constitution, are maintained. 
Constitution of India -Amendment to - Scope - Held 
(per Khehar, J.): The "basic structure" of the Constitution is 
inviolable ~ The Constitution cannot be amended so as to 
negate any "basic features" thereof-Also, if a challenge is E 
raised to an ordinary legislation based on one of the "basic 
features" of the Constitution, it would be valid to do so. 
Constitution of India - Art. 368 -
Constitutional 
Amendments - Will of the People and Judicial Review -
Limitations on the amending power - Appointment and F 
transfer of
Judges in higher judiciary- Broad based Judicial 
Appointment Commission comprising of members of the 
judiciary, the executive and eminent! important persons from 
public life 'proposed to be constituted, to replace the prevailing G 
procedure, contemplated under Articles 124(2) and 217(1)-
To achieve the purported objective, Articles 124 and 217 inter 
a/ia amended, and Articles 124A, 1248 and 124C inserted 
in the Constitution, through the Constitution (99th 
Amendment) Act, by following the procedure contemplated H
4 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
under Article 368(2), more particularly, the proviso thereunder 
- Simultaneously therewith, the Parliament enacted the 
NJACAct- Said Constitutional amendment and legislative 
enactment, challenged before Supreme Court - Held (per 
Khehar, J.): There are declared limitations, on the amending 
B . power conferred on the Parliament, which cannot be breached 
- If a constitutional amendment breaches the "core" of the 
Constitution or destroys its "basic or essential features" in a 
manner which was patently unconstitutional, it would have 
crossed over forbidden territory -
This aspect, would 
C undoubtedly fall within the realm of judicial review - In the 
above view of the matter, the impugned constitutional 
amendment, as a/so, the NJAC Act, would be subject to 
judicial review on the touchstone of the "basic structure" of 
0 
the Constitution, and the parameters laid down by the 
Supreme Court in that behalf, even though the impugned 
constitutional amendment may have been approved and 
passed unanimously or by an overwhelming majority, and 
notwithstanding the ratification thereof by as many as twenty-
E eight State Assemblies -
Constitution (Ninety-ninth 
Amendment) Act, 2014 - National Judicial Appointments· 
Commission Act, 2014 . 
. Judiciary- Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges - Independence of 
F judiciary - Primacy conferred on the Chief Justice of India 
and his col/egium of
Judges - Held (per Khehar, J.): In the 
matter of appointment of Judges to the higher judiciary, and 
also, in the matter of transfer of Chief Justices and Judges 
from one High Court to any other High Court, under Articles 
G 
124, 217 and 222, primacy conferred on the Chief Justice of 
India and his collegium of Judges, is liable to be accepted 
as an integral constituent of the above provisions (as 
originally enacted) -
Therefore, when a question with 
reference to the selection and appointment (as also, transfer) 
H
SUPREME COURT ADVOCATES-ON-RECORD 
5 
ASSOCIATION v. U.0.1. 
of Judges to the higher judiciary is raised, alleging that the 
A 
"independence of the judiciary" as a "basic feature/structure" 
o~ the Constitution has been violated, it would have to be 
ascertained whether the primacy of the judiciary exercised 
through the Chief Justice of India (based on a collective 
wisdom of a collegium of Judges), had been breached- Then 
B 
alone, would it be possible to conclude, whether or not, the 
"independence of the judiciary" as an essential "basic feature" 
of the Constitution, had been preserved (-and had not been 
breached}- Constitution of India -Articles 124, 21 land 222. c 
Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Procedure - New 
scheme contemplated for replacing the Col/egium system -
National Judicial Appointments Commission (NJAC) set up 
under the aegis of Constitution (Ninety-ninth Amendment) D 
Act, 2014 read with the National Judicial Appointments 
Commission Act, 2014 - NJAC to comprise of members of 
the judiciary, the executive and eminent/important persons 
from public life - Whether as a matter of practicality, the 
impugned constitutional amendment can be consi.dered to 
E 
have 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- Held (per Khehar, J.): Primacy
of 
the judiciary would not be considered to have been sustained, 
F 
merely by ensuring that the judicial component in the 
membership of the NJAC, was sufficiently capable, to reject 
the candidature of an unworthy nominee - In the matter of 
primacy, the judicial component of the·NJAC, should be 
competent by itself, to ensure the appointment of a worthy· G 
nominee, as well - Under the substituted scheme, even if 
the Chief Justice of India and the two other senior most Judges 
of the Supreme Court (next to the Chief Justice of India), 
consider a nominee to be worthy for appointment to the higher 
H
6 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A judiciary, the concerned individual may still not be appointed, 
if any two Members of the NJAC. opine otherwise- This would 
be out-rightly obnoxious, to the primacy of the judicial 
component- The magnitude of the instant issue, is apparent 
from the fact that the two "eminent persons" ("lay persons, 
B according to the 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 - Without any doubt, demeaning primacy of 
C 
the judiciary, in the matter of selection and appointment of 
Judges to the higher judiciary -
The instant issue, is 
demonstrably far more retrograde, when the Union Minister 
in charge of Law and Justice also supports the unanimous 
0 
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 - Articles 
124A(1)(a) and (b) do not provide for an adequate 
E' 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, and therefore, 
the same are liable to be set aside and struck down as being 
violative of the "basic structure" of the Constitution of lndia-
F 
Thus
viewed, the "basic structure" of the Constitution would 
be clearly violated, if the process of selection of Judges to 
the higher judiciary was to be conducted, in the manner 
contemplated through the NJAC -
The impugned 
constitutional amendment, being ultra vires the "basic 
G structure" of the Constitution, is liable to be set aside -
Constitution of India -Arts. 124A (1 )(a) and (b). 
H 
Judiciary - Higher Judiciary - Constitutional Courts -
Appointment of Judges - Procedure -
New scheme 
contemplated - National Judicial Appointments Commission
SUPREME COURT ADVOCATES-ON-RECORD 
7 
ASSOCIATION v. U.0.1. 
(NJAC) set up - NJAC to comprise of members of the A 
judiciary, the executive and eminenVimportant persons from 
public life - Participation of the political-executive - If justified 
- Presence of Union Minister in charge of Law and Justice, 
as an ex officio Member of the NJA C - Challenge to - Held 
(per Khehar, J.): The political-executive, as far as possible, 
B 
should not have a role in the ultimate/final selection and 
appointment of Judges to the higher judiciary - Specially 
keeping in mind the enormity of the participation of the 
political-executive, in actions of judicial adjudication -
Reciprocity, and feelings of pay back to the political-
C 
executive, would be disastrous to "independence of the 
judiciary" -
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 0 
charge of Law and Justice, as an ex officio Member of the 
NJAC, would be clearly questionable - Consequent upon 
the participation of the Union Minister in charge of Law and 
Justice, a Judge approved for appointment with the Minister's 
support, may not be able to resist or repulse a plea of conflict E 
of interest, raised by a litigant, in a matter when the executive 
has an adversarial role- In the NJAC, the Union Minister in 
charge of Law and Justice would be a party to all final 
selections and appointments of Judges to
the higher judiciary 
- It may be difficult for Judges approved by the NJAC, to 
F 
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 repulsed - Therefore, the rote· assigned to the 
G 
political-executive, can at best be limited to a collaborative 
participation, excluding any role in the final determination -
Mere participation of the Union Minister in charge of Law and 
Justice, in the final process of selection, as an ex officio 
H
8 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Member of the NJA C, 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" - In the process of evolution of 
societies across the globe, the trend is to free the judiciary 
B 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 effectively support nation building - Progression of the 
concepts of "independence of the judiciary" and 'Judicial 
C review" were now being recognized the world over - The 
diminishing role of executive and political participation, on 
the matter of appointments to the higher judiciary, is an 
obvious reality - In recognition of the above trend, there 
cannot be any greater and further participation of the 
D executive, than that which existed hitherto before -And in 
the Indian scenario, as is presently conceived, through the 
judgments rendered in the Second and Third Judges cases 
- It is therefore imperative to conclude, that the participation 
E of the Union Minister in charge of Law and Justice in the final 
determinative process vested in the NJAC, as also, the 
participation of the Prime Minister and the Leader of the 
Opposition in the Lok Sabha (and in case of there being none 
- Leader of the single largest Opposition
Party in the House 
F of the People), in the selection of"eminent persons", would 
be a retrograde step, and cannot be accepted - Constitution 
of India -Art. 124A(1)(c). 
Judiciary- Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges -
Procedure -
G Composition and structure of NJAC- NJAC to comprise of 
members of the judiciary, the executive and two "eminent 
persons""- Issue arising out of non-description of 
qualifications and disqualifications of "eminent persons" -
Two "eminent persons" to be nominated to the NJA C vested 
H
SUPREME COURT ADVOCATES-ON-RECORD 
9 
ASSOCIATION v. U.0.1. 
with a power of veto - Propriety of- Held (per Khehar, J.): 
A 
The issue of description of the qualifications (-perhaps, also 
the disqualifications) of "eminent persons" is of utmost 
importance, 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 B 
the two "eminent persons" comprise of 1/3rd strength of the 
NJA C, and double that of the political-executive component, 
and as such, will have a supremely important role in the 
decision making process of the NJAC-Article 124A(1 )(d) is 
liable to be set aside and struck down, for having not laid C 
down the qualifications of eligibility for being nominated as 
"eminent persons", and for having left the same vague and 
undefined - It is even otherwise difficult to appreciate the 
logic of including two "eminent persons': in the six-Member 0 
NJAC - It is difficult to appreciate what inputs the "eminent 
persons", satisfying the qualification depicted by the Attorney 
General, would render in the matter of selection and 
appointment of Judges to the higher judiciary- The sensitivity 
of selecting Judges is so enormous, and the consequences E 
of making inappropriate appointments so dangerous, that if 
those involved in the process of selection and appointment 
of Judges to the higher judiciary, make wrongful selections, 
it may we/I lead the nation into
a chaos of sorts - It is also 
difficult to appreciate the wisdom of the Parliament, to F 
introduce two Jay 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 second 
proviso under s.5(2), and s.6(6) of the NJAC Act, clearly 
mandate, that a person nominated to be considered for G 
appointment as a Judge of the Supreme Court, and persons 
being considered for appointment as Chief Justices and 
Judges of High Courts, cannot be appointed, if any two 
Members of the NJA C do not agree to the proposal - In the 
H
10 
SUPREME COURT REPORTS 
[2015] 13 S.C.R 
A 
scheme of the selection process of Judges to the higher 
judiciary, contemplated under the impugned constitutional 
amendment read with the NJAC Act, the two "eminent 
persons" are sufficiently empowered to reject all 
recommendations, just by themselves - Not just that, the 
B two "eminent persons" would also have the absolute authority 
to reject all names unanimously approved by the remaining 
four Members of the NJAC - That would obviously include 
the power to reject, the unanimous recommendation of the 
entire judicial component of the NJA C - The vesting of such 
C authority in the "eminent persons", is clearly unsustainable, 
in the scheme of ."independence of the judiciary" -Article 
124A(1 )(d) is liable to be set aside and struck down as being 
violative of the "basic structure" of the Constitution -
D Constitution of India-Art. 124A(1 )(d)- Constitution (Ninety-
ninth Amendment) Act, 2014 -
National Judicial 
. Appointments Commission Act, 2014 - Second proviso u/s. 
5(2) ands. 6(6). 
Judiciary - Higher judiciary - Constitutional Courts -
E Appointment and transfer of Judges - Participation of the 
political-executive establishment- Role of the "civil society" 
in India - Held (per Khehar, J.): The Constitution does not 
. envisage the "spoils system" (also known as the "patronage 
system'?, wherein the political party which wins an election, 
F 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- It would be of utmost 
importance to shield judicial appointments, from any political-
executive interference, to preseNe the "independence of the 
G judiciary", from the regime of the spoils system - PreseNing 
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 - It is difficult to hold that the wisdom of 
appointment of Judges, can be shared with the political-
H
SUPREME COURT ADVOCATES-ON-RECORD 
11 
ASSOCIATION v. U.0.1. 
executive- In India, the organic development of civil society, · A 
has not as yet sufficiently evolved - The expectation from 
the 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- The present status ofthfj evolution of the "civil B 
society" in India, does not augur the participation of the 
political-executive establishment, in the selec;tion 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 - Higher judiciary, ·which is the savior of the C 
fundamental rights of the citizens of this country, by virtue of 
the constitutional responsibility assigned to it under Articles 
32 and 226, must continue to act as the protector of the civil 
society- Constitution of India-Arts. 32 and 226. 
National Judicial Appointments Commission Act, 2014 
- Functioning of the NJAC- Quorum for- Meeting of National 
Judicial Appointments Commission (NJAC), when valid -
Strength required for valid decision making - Held (per 
D 
. Khehar, J): In case a statutory provision vests a decision E 
making authority in a body of persons witho_ut stipulating the 
minimum quorum, then a valid meeting can be held only if 
the majority of all the members of the body, deliberate in the 
process of decision making- On the same
analogy therefore, 
a valid decision by such a body will necessitate a decision F 
by a simple majority of all the members of the body - If the 
. aforesaid principles are made applicable to the NJAC, the 
natural outcome would be, that a valid meeting of the NJA C 
must have at least four Members participating in a six-
Member NJAC - Likewise, a valid decision of the NJAC can G 
only be taken (in the absence of any prescribed 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) - Judiciary - Higher Judiciary -
H
12 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
Constitutional Courts -Appointment and transfer of Judges 
- Procedure. 
National Judicial Appointments Commission Act, 2014 
- ss. 5(2) and 6(6) - Validity- Judiciary- Higher Judiciary-
Constitutional Courts -Appointment and transfer of Judges 
B - Power of veto vest~d in any two Members of the NJA C - . 
Held (per Khehar, J.): The power of veto vested in any two 
Members of the NJAC, would adversely impact primacy of 
the judiciqry, in the matter of selection and appointment of 
C Judges to the higherjudiciary (as also theirtransfer)-ss.5(2) 
and 6(6) breach the "basic structure" of the Constitution, with 
reference to the "independence of the judiciary" and the 
"separation of powers" - ss. 5(2) and 6(6), therefore, liable to 
be declared as ultra vires the Constitution. 
o 
National Judicial Appointments Commission Act, 2014 
-
s. 5(1) - Appointment of the Chief Justice of India -
Procedure -
s.5(1) provided that the NJAC would 
recommend the senior most Judge of the Supreme Court, 
for being appointed as Chief.Justice of India, subject to the 
E condition, that he was considered "fit" to hold the office -
Contention that the term "fit" had not been elaborately 
described and it was always open to the Parliament to 
purposefully define fitness, in a manner as would sub-serve 
the will of the executive and this could/would seriously affect 
F the "independence of the judiciary" - Held (per Khehar, J.): 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 to express, the clear 
G parameters of the term "fit", with reference to the senior most 
Judge of the Supreme Court under s.5 -
The term "fit" can 
be tailor-made, to choose a candidate far below in the 
seniority list- The position adopted by the Attorney General, 
H namely, that the term "fit" used in s.5(1) would be read to
SUPREME COURT ADVOCATES-ON-RECORD 
13 
ASSOCIATION v. U.0.1. 
mean only " ... mental and physical fitness ... " is affirmed A 
and crystalised - If that is done, it would be legal and 
constitutional - However, if the position adopted ~reached 
the "independence of the judiciary'; in the manner suggested 
by the petitioners, the same would be assailable in Jaw. 
National Judicial Appointments Commission Act, 2014 8 
- s. 5(2), first proviso - Validity of -Appointment of a High 
Court Judge - First proviso to s.5(2) providing that while 
making recommendation for appointment of a High Court 
Judge, apart from seniority, the ability and merit of such Judge C 
shall be considered by NJAC -
Held (per Khehar, 
J.):Undoubtedly, postulating "seniority" in the first proviso 
under s.5(2), is a laudable objective -And if seniority is to 
be supplemented and enmeshed with "ability and merit'; the 
most ideal approach, can be seen to have been adopted -
0 
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 E 
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 
F 
seniority) above the other Judges appointed to another High 
Court, just after a few days or weeks or months - Judges 
appointed later, will have to be placed en masse below the 
earlier batch, in seniority- If appointment of Judges to the 
Supreme Court, is to be made on the basis of seniority (as a G 
primary consideration), then the earlier batch would have 
priority in the matter of elevation to the Supreme Court-And 
hypothetically, if the batch had ten Judges (appointed together 
to a particular High Court), and if all of them have proved 
H
14 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
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 -
B Judges from 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 would 
be clearly unacceptable - Consideration of Judges on the 
basis of their seniority, by treating the same as a primary 
C consideration, would adversely affect the present convention 
of ensuring represeritation from as many State High Courts, 
as is possible -
The convention in vogue is, to maintain 
regional representation -Accordingly, the first proviso under 
0 
s. 5(2) is liable to be struck down and set aside. 
National Judicial Appointments Commission Act, 2014 
- s.6(1) - Validity of-Appointment of a Judge of a High 
Court as Chief Justice of a High Court- s. 6(1) providing that 
NJAC shall recommend on the basis of inter se seniority of 
E High Court Judges and ability, merit and any other criteria of 
suitability as may be specified- Held (per Khehar, J.): s. 6(1) 
. has the same seniority connotation as expressed with 
reference to the first proviso under s.5(2) - For exactly the 
same reasons as noticed in the case of the first proviso under
F s.5(2), based on seniority (as a primary consideration), ten 
High Courts in different States could have Chief Justices 
drawn from one parent High Court- s. 6(1) therefore liable to 
meet the same fate, as the first proviso under s.5(2); and is 
G 
liable to be struck down and set aside. 
National Judicial Appointments Commission Act, 2014 
- s. 7 - Validity of- Appointment of Chief Justice of India or 
a Judge of the Supreme Court or, the Chief Justice of a High 
Court or the Judge of a High Court - s. 7 providing that the 
H President would make such appointments on
SUPREME COURT ADVOCATES-ON-RECORD 
15 
ASSOCIATION v. U.0.1. 
· recommendations made by NJAC - The first proviso to s. 7 A 
providing that the President may require NJA C to reconsider 
recommendation made by it- Held (per Khehar, J.): It is not 
possible to accept that s. 7 by providing that the President 
could requite the NJAC to reconsider a recommendation 
made by it, would in any manner violate Articles 124(2) and B 
217(1) (which mandate, that Judges would be appointed by 
the President on the recommendation of the NJAC)- It would 
.be improper to infer, that the action of the President, requiring 
the NJAC to reconsider its proposal, amounted to rejecting 
the proposal made by the NJAC - For, if the NJAC was to C 
reiterate the proposal made earlier, the President even in 
terms of Section 7, was bound to act in consonance therewith 
(as is apparent from the second proviso under s. 7 of the 
NJACAct). 
National Judicial Appointments Commission Act, 2014 
- s. 8- Validity of- Functions of the Convener, with reference 
io NJA C - s. 8 provides for the Secretary to the Government 
D 
of India, in the Department of Justice, to be the convener of 
NJA C- It was contended that such an onerous responsibility, 
E 
· could not be left to the executive alone.it was imperative to 
exclude all executive participation in the proceedings of the 
NJAC-Held (per Khehar, J.): It has already been concluded, 
that the participation of the Union Minister in charge of L?W · 
and Justice,
as a Member of the NJAC, as contemplated F 
under Article 124A(1 ), in the matter of appointment of Judges 
to the higher judiciary, would breach the concepts of 
"separation of powers" and the "independence of the 
judiciary", which are both undisputedly components of the 
"basic structure" of the Constitution of/ndia - For exa<?tlY the G 
same reasons, s. 8 is not sustainable in law - In a body like 
the NJAC, the administrative functioning cannot be under 
executive or legislative control -
The only remaining 
alternative, is to vest the administrative control of such a body, 
H
16 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
with the judiciary. 
Constitution of India - Amendment to, set aside by a 
process of judicial review -
Consequence -
Impugned 
Constitution (99th Amendment) Act set aside by five-Judge 
Bench of Supreme Court, as being violative of the "basic 
8 
structure" of the Constitution- Effect of- Would Articles 124, 
127, 128, 217, 222, 224, 224A and 231, as they existed prior 
to the impugned amendment, would revive; and on such 
revival, the judgments rendered in the Second and Third 
C Judges cases, would again regulate selections and 
appointments, as also, transfer of Judges of the higher 
judiciary- Held (per Khehar, J.): The present situation is one 
where, the impugned constitutional amendment by a process 
of judicial review, has been set aside -
Such being the 
0 
position, whatever be the cause and effect of the impugned 
constitutional amendment, the same will be deemed to be 
set aside, and the position preceding the amendment will be 
restored - It does not matter what are the stages or steps of 
the cause and effect of the amendment, all the stages and 
E steps will stand negated, in the same fashion as they were 
introduced by the amendment, when the amended provisions 
are set aside -
If neither the impugned constitutional 
provision, nor the amended provisions of the Constitution 
would survive, it would lead to a breakdown of the constitutional 
F machinery, inasmuch as, there would be a lacuna or a hiatus, 
insofar
as the manner of selection and appointment of Judges 
to the higher judiciary is concerned - Such a position cannot 
be the result of any sound process of interpretation - The 
clear intent of the Parliament, while enacting the Constitution 
G (99th Amendment) Act, was to provide for a new process of 
selection and appointment of Judges to the higher judiciary 
by amending the existing provisions - Naturally therefore, 
when the amended provision postulating a different procedure 
is set aside, the original process of selection and 
H
SUPREME COURT ADVOCATES-ON-RECORD 
. 17 
ASSOCIATIONv. U.0.1. 
appointment under the unamended provisions would revive 
A 
-When a judgment sets aside, an amendment or a repeal 
by the legislature, it is but natural that the status quo ante, 
would stand restored - With the setting aside of the impugned 
Constitution (99th Amendment) Act, 2014, the provisions of 
the Constitution sought to be amended thereby, would B 
automatically revive, and the status quo ante would stand 
restored - Constitution (Ninety-ninth Amendment) Act, 2014 
- Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges. 
Constitution of India - Art. 124A -
Validity of -
Constitution and composition of National Judicial 
Appointments Commission (NJAC) - Held (per Khehar, J.): 
c 
Article 124A constitutes the edifice of the Constitution (99th 
Amendment) Act, 2014- The striking down of Article 124A D 
would automatically lead to the undoing of the amendments 
made to Articles 124, 1248, 124C, 127, 128, 217, 222, 224, 
224A and 231 - This, for the simple reason, that the latter 
Articles are sustainable only if Article 124A is upheld - If the 
inclusion of anyone of the Members of the NJAC is held to E 
be unconstitutional, Article 124A will be rendered nugatory, 
in its entirety- Clauses (a) and (b) of Article 124A(1) do not 
provide an adequate representation, to the judicial 
component in the NJAC, clauses (a) and (b) of Article 124A(1) 
are insufficient to preserve
the primacy of the judiciary, in 
F 
the matter of selection and appointment of Judges, to the 
higher judiciary (as also transfer of Chief Justices and 
Judges, from one High Court to another) - The same are 
accordingly, violative of the principle of"independence of the 
judiciary" - Clause (c) of Article 124A(1) is ultra vires the G 
provisions of the Constitution, because of the inclusion of 
the Union Minister in charge of Law and Justice as an ex 
officio Member of the NJAC- Clause (c) of Article 124A(1) 
impinges upon the principles of "independence of the 
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18 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A judiciary", as well as, "separation of powers'' -Also, clause 
(d) of Article 124A(1) which provides for the inclusion of two 
"eminent persons" as Members of the NJAC is ultra vires 
the provisions of the Constitution, for a variety of reasons -
The same is violative of the "basic structure" of the Constitution 
B -
In the above view of the matter, all the clauses (a) to {d) of 
Article 124A(1) are liable to be set aside - The same are, 
accordingly struck down - In view of the striking down of Article 
124A(1 ), the entire Constitution (99th Amendment) Act, 2014 
is liable to be set aside - The same is accordingly hereby 
C 
struck down in its entirety, as being ultra vi res the provisions 
of the Constitution - Constitution (99th Amendment) Act, 
2014 - Judiciary- Higher Judiciary- Constitutional Courts 
-Appointment and transfer of Judges'- Procedure. 
D 
Constitution oflndia-Art. 124C- Validity of- Held (per 
Khehar, J.): The National Judicial Appointments 
Commission Act, 2014 inter alia emanates from Art. 124C -
It has no independent existence in the absence of the NJAC, 
constituted under Art. 124A(1 )- Since Arts. 124A and 124C 
E have been set aside, as a natural corollary, the National 
Judicial Appointments Commission Act, 2014 is also liable 
to be set aside, and the same is accordingly hereby struck 
down - In view of the above, it was not essential to have 
examined the constitutional vires of individual
provisions of 
F 
the NJACAct-Allthe same, the challenge raised to Sections 
5, 6, 7 and 8 thereof have been examined - ss. 5, 6 and 8 of 
the NJAC Act found to be ultra vires the provisions of the 
Constitution - National Judicial Appointments Commission 
Act, 2014 - ss.5, 6 and 8- Judiciary- Higher Judiciary-
G Constitutional Courts -Appointment and transfer of Judges 
- Procedure . 
Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Constitutional History 
H in regard to Appointment of Judges in India - Discussed -
SUPREME COURT ADVOCATES-ON-RECORD 
19 
ASSOCIATION v. U.0.1. 
Held (per Lokur, J.): The conclusions that can be drawn from 
A 
the background histo1ical facts are as follows: (1) The 
independence of the judiciary has been always recognized 
and acknowledged by all concerned -
(2) Prior to 
Independence, the appointment of a judge to a superior court 
was entirely the discretion of the Crown - The Constituent B 
Assembly felt that such a 'supreme and absolute' power should 
not vest in the President or the government of the day or the 
Chief Justice of India (as an individual) and therefore a fetter 
was placed on that power by requiring the President to 
mandatorily consult the Chief Justice of India (with the C 
discretion to consult other judges) for the appointment of a 
judge to the Supreme Court- For the appointment of a judge 
of the High Court also, consultation with the Chief Justice of 
India was mandatory-In addition, consultation with the Chief 0 
Justice of the High Court and the Governor of the State was 
mandatory-Significantly, there is no mention of consultation 
with anybody from civil society -
(3) Any doubt about the 
individual role of the President in the process of appointment 
of judges came to rest and it was clear that the President was E 
expected to act only on the advice of the Council of Ministers 
- (4) Similarly, the Chief Justice of India is not expected to 
act in an individual or personal capacity but must consult 
his/her senior judges
before making a recommendation for 
the appointment of a judge - (5) Dr. Ambedkar and the 
F 
Constituent Assembly did not accept the 'unfettered discretion' 
theory in the Constituent Assembly Debates (CAD) but this 
view was subsequently rejected in the First Judges case which 
brought in the 'ultimate power' theory propounded by Justice 
Bhagwati and Justice Desai -
(6) Executive interference in 
G 
the appointment process (with perhaps an informal method 
of 'take over? had started around the time of Independence 
and got aggravated post Independence, peaking towards the 
end of the 1980s - (7) Not a single instance given where the 
H
20 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
President recommended a person for appointment as a judge 
of the Supreme Court or the High Court- The Chief Minister 
of a State might have made a recommendation (although 
no instance was given) but that was required to be routed 
through the Chief Justice of the High Court, as per the 
B Memorandum of Procedure -
(8) Only one instance was 
given, pre the First Judges case where an appointment as a 
judge of the High Court was made without the concurrence 
of the Chief Justice of India - Post the First Judges case as 
many as seven such appointments were made - This is a 
C clear indication that the 'ultimate power' theory propounded 
in the First Judges case translated into 'absolute executive 
primacy' - The dream of Dr. Ambedkar became a nightmare, 
thanks to the political executive -
(9) The 'ultimate power' 
0 
theory or the 'absolute executive primacy' theory is now diluted 
and the last word in the appointment of a judge of the 
Supreme Court is shared between the President and the Chief 
Justice of India in terms of the Second Judges case and the 
Third Judges case - Historically, giving the last word to the 
E executive has been criticized by no less than the Attorney-
General Shri M. C. Setalvad who chaired the Law 
Commission of India when the 141h Report was given - That 
system has not worked well at all as noted from time to time 
- (10) The National Commission to Review the Working of 
F the Constitution as
well as a responsible judge from the 
House of Lords were of the opinion that the procedure for 
appointment of judges as laid down in the Second Judges 
case and the Third Judges case broadly serves the purpose 
of maintaining the independence of the judiciary and 
G providing a suitable method for appointment of judges of the 
superior Courts. 
Judiciary- Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges- Procedure- 'Absolute 
executive primacy' system or the 'ultimate power' theory and 
H
. 
SUPREME COURT ADVOCATES-ON-RECORD 
21 
ASSOCIATION v. U.0.1. 
the 'col/egium system' of appointment of fudges postulated A 
by the Second Judges case and the Third Judges case -
Discussed- Held (per Lokur, J.): Both the 'absolute executive 
primacy' system or the 'ultimate power' theory and the 
'col/egium system' of appointment of judges of the Supreme 
Court and the High Courts were acceptable systems in their B 
time - The 'executive primacy' system was, unfortunately, 
abused by the executive and the judiciary could do precious 
little about it, bound as the judges are by the Rule of Law- It 
is because of this abuse that the constitutional provisions 
were revisited at the instance of the Bar of Supreme Court-
C 
It is this insight that resulted in the Second Judges case and 
a meaningful and pragmatic interpretation of the Constitution 
- To say that the col/egium system has failed and that it needs 
replacement would not be a correct or a fair post mortem. 
Judiciary - Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges - Procedure - Process 
D 
of consideration - Col/egium system - Two stages - Pre-
recommendation stage and post-recommendation stage -
Impact and effect of Second Judges case - 'Consultation' E 
occurring in Article 124(2) and Article 217(1) of the 
Constitution - Meaning of- Held (per Lokur, J.): The process 
of consideration of a person for appointment as a judge is 
important both at a stage prior to the recommendation
being 
made by the Chief Justice of India in consultation with his/ F 
her colleagues, constituting a 'col/egium' and also after the 
recommendation is sent by the Chief Justice of India to the 
executive -At both stages, the process is participatory- In 
the pre-recommendation stage, it is a participatory process 
involving the Chief Justice of India and his/her colleagues, 
G 
constituting the collegiums - It is at this stage that the Chief 
Justice of India takes the opinion of the other judges and 
anybody else, if deemed necessary -
This stage a/so 
includes the participation of the executive because it is at 
H
22 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A this stage that the Chief Justice of India receives inputs from 
the executive about the frailties, if any, of a person who may 
eventually be appointed a judge -
In the post-
recommendation stage also the process is participatory but 
primarily with the executive in the event the executive has 
B some objection to the appointment of a particular person for 
strong and cogent reasons to be recorded in writing -
Therefore, when a person is considered tor appointment as 
a judge, there is extensive and intensive participatory 
consultation within the judiciary before the Chief Justice of 
C India actually recommends a person for appointment as a 
judge; and after the recommendation is made, there is 
consultation between the executive and the judiciary before 
the process is carried further - Difficulty in considering and 
0 
accepting a recommendation arises only if there is a 
difference of opinion during consultations between the 
executive and the judiciary -
The Second Judges case 
effectively resolves this controversy - At the pre-
recommendation stage, it is quite possible that the executive 
E is in possession of material regarding some personal trait or 
weakness of cha racier of a lawyer or a judge that is not known 
to the Chief Justice of India or the Chief Justice of the High 
Court and which may potentially disentitle that person from 
being appointed a judge - It is then for the executive, as a 
F consultant, to
bring this information or material to the notice 
of the Chief Justice of India - Since the judiciary has the 
responsibility of recommending an appropriate candidate for 
appointment as a judge, primacy is accorded to the view of 
the judiciary (symbolized by the view of the Chief Justice of 
G India) that will weigh and objectively consider the material or 
information and take a final decision on the desirability of 
the appointment- The Chief Justice of India may, for good 
reason, accept the view of the executive or may, also for good 
reason, not accept the view of the executive - It is in this 
H
SUPREME COURT ADVOCATES-ON-RECORD 
23 
ASSOCIATION v. U.0.1. 
sense that 'consultation' occurring in Article 124(2) and Article A 
217(1) of the Constitution has to be understood- Constitution 
oflndia-Articles 124(2) and 217(1). 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - 991h Constitution Amendment Act 
B 
inter alia amended Article 124(2) and introduced Article 124A 
- Article 124(2) of the Constitution required the NJAC 
constituted. under Article 124A to make recommendation to 
the President for the appointment of a judge of the Supreme 
Court or a High Court- NJAC and the role of the President-
C 
piscussed - Held (per Lokur, J.): There is no·clarity on the 
role of the President - In any event, the discretion available 
to the President to consult judges of the Supreme Court in 
the matter of appointment of judges is taken away - The 
decision of the President is subject to the opinion of two D 
eminent persons neither of whom is constitutionally 
accountable - There is a doubt on the well established 
principle of Cabinet responsibility-A statute- the NJA C Act, 
not the Constitution binds the President contrary to the 
constitutional framework- The ggrh Constitution Amendment E 
Act makes serious and unconstitutional inroads into Article 
124(2) of the Constitution, as originally framed - Constitution 
(Ninety-ninth Amendment) Act, 2014. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges -
Role of the
Chief Justice of India F 
and the Judiciary- In context to ggth Constitution Amendment 
Act and the NJAC Act- Discussed - Held (per Lokur, J.): 
The unanimous opinion of the Judiciary can be rejected by 
two eminent persons or one eminent person and the Law 
Minister (whose opinion is subject to the opinion of the G 
Council of Ministers, whom he/she represents) -
The 
unanimous opinion of the judiciary as an institution, an 
opinion that was respected (and deservedly so) counts for 
virtually nothing with the passage of the ggrh Constitution H
24 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A Amendment Act and the NJAC Act- The Chief Justice of 
India is rendered, by the ggih Con.stitution Amendment Act to 
a mere voting statistic and one among six in the NJAC 
virtually stripping him/her of the constitutional responsibility 
of appointing judges to the superior courts and denuding him/ 
B her of the authority conferred by history, constitutional 
convention and the Constitution- The Chief Justice of India 
and the institution of the judiciary is now subject to a veto by 
civil society in its decisions -
The entire scheme of 
appointment of judges postulated by the Constituent 
C Assembly is _made topsy-turvy by the ggrh Constitution 
Amendment Act and the NJAC Act - Constitution (Ninety-· 
ninth Amendment) Act, 2014 -
National Judicial 
Appointments Commission Act, 2014. 
D 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Presence of eminent persons in 
NJAC- Challenged- Held (per Lokur, J.): In principle, there 
can be no objection to consultation with eminent persons from 
all walks of life in the matter of appointment of judges - But 
E that these eminent persons can veto a decision that is taken 
unanimously or otherwise by the Chief Justice of India (in 
consultation with other judges and possibly other eminent 
persons) is unthinkable - it confers virtually a monarchical 
power on the eminent persons in the NJA C, a power without 
F any accountability- The categories of eminent
persons ought 
not to be limited to scheduled castes, scheduled tribes, other 
backward classes, minorities or women but that is a matter of 
policy and nothing more can be said about this, except that 
·a rethink is necessary - There can be no guidelines for 
G deciding who is or is not an eminent person for the purposes 
of nomination to the NJAC, but that the choice is left to a 
high powered committee is a sufficient check, provided the 
decision of the committee is unanimous. 
H 
Judiciary - Higher judiciary - Constitutional Courts -
SUPREME COURT ADVOCATES-ON-RECORD 
25 
ASSOCIATION v. U.0.1. 
Appointment of Judges -
Presence of the Law Minister in 
A 
NJAC- Challenge to, on ground that the Union of India is 
the biggest litigant in the courts and to have the Law Minister 
as a member of the NJAC might prove detrim~ntal to a fair 
selection, if not counter-productive- Held (per Lokur, J.): The 
struggle for the independence of the judiciary has always B 
been pivoted around the exclusion of the executive in 
decision-taking, but the inclusion of the Law Minister in the 
NJAC is counter-productive, historically counter-majoritarian 
and goes against the grain of various views expressed in 
various committees - More so, since the Law Minister can C 
exercise a veto in the decision-taking body - Presence of 
the Law Minister in the NJAC is totally unnecessary and ii/-
advised - Presence of the Law Minister in the NJA C casts a 
doubt on the principle of Cabinet responsibility. 
D 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Article 124(2) of the Constitution 
as originally framed made it mandatory for the President to 
consult the Chief Justice of India in the appointment of judges 
- NJAC and impact on mandatory consultation - Held (per E 
Lokur, J.): The ggth Constitution Amendment Act and the 
NJAC Act have reduced the consultation process to a farce 
- a meaningful participatory consultative process no longer 
exists- The shared responsibility between the President
and 
the Chief Justice of India in the appointment of judges is 
F 
passed on to a body well beyond the contemplation of the 
Constituent Assembly- The possibility of having committed 
judges and the consequences of having a committed 
judiciary, a judiciary that might not be independent is 
unimaginable. 
G 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges- NJAC and the appointment of High 
Court judges - Held (per Lokur, J.): The combined effect of 
the ggth Constitution Amendment Act and Section 6 of the 
H
26 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
NJAC Act is that the entire control over the appointment of a 
judge of a High Court is taken over by the NJAC and the 
paradigm is completely altered with the Chief Justice of a 
High Court downgraded from a mandatory consultant, and 
the originator of a recommendation for appointment as 
B postulated by Article 217(1) of the Constitution as 
conventionally understood, to someone who merely makes 
a nomination and thereafter is not required to be consulted 
one way or the other with respect to the nomination made -
Process of initiating a recommendation for the appointment 
C of a judge, generally accepted since Independence, has 
been radically changed, with well entrenched constitutional 
conventions being given short shrift - The Chief Justice of 
the High Court has been reduced to the role of a nominating 
0 
officer, whose opinion is taken only for nomination purposes 
but not taken as a consultant in so vital a matter as the 
appointment of a judgf! - The constitutional importance given 
to the Chief Justice of a High Court has been completely 
whittled down virtually to a vanishing point- Constitution of 
E India -Art. 217(1) - Constitution (Ninety-Ninth} Amendment 
Act, 2014 - National Judicial Appointments Commission Act, 
2014-s.6 . . 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Convenor of the NJAC -
The 
F Secretary to the Government of India in the Department of 
Justice is the
convenor of the NJAC in terms of Section 8(3) 
·of the NJAC Act - Held (per Lokur, J.):. The duties and 
responsibilities of the convenor have not been delineated in 
the NJAC Act and, the rules and regulations under the Act 
G have not been framed - It is therefore difficult to appreciate 
the functions that the convenor is expected to perform- That 
apart, the Secretary is an officer of the· government and is 
not answerable to the NJA C - The Secretary is paid a salary 
and allowances from the government coffers - This is quite 
H
SUPREME COURT ADVOCATES-ON-RECORD 
27 
ASSOCIATfON v. U.0.1. 
unlike officers of the High Courts or the Supreme Court who A 
are directly answerable to their respective Chief Justice -
Moreover, their salary and allowances are charged upon the 
Consolidated Fund of India - The 'independence' of these 
officers is maintained while that of the Secretary to the 
Government of India in the Department of Justice is not -
B 
Moreover, the Secretary holds a transferable position and 
can be changed at the whims and fancies of the executive, 
depriving the NJAC of continuity and, in a sense, leaving it 
high and dry whenever it pleases the executive ~ This is 
clearly objectionable - National Judicial Appointments C 
Commission Act, 2014 - s. 8(3). 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Confidentiality requirements -
· Functioning of the NJAC-Held (per Lokur, J.): The balance D 
between transparency and confidentiality is very delicate and 
if some sensitive information about a particular person is 
made public, it can have a far reaching impact on his/her 
reputation and dignity - The ggth Constitution Amendment 
Act and the NJAC Act have not taken note of the privacy E 
concerns of an individual - This is important because it was 
submitted by the Attorney-Genera/ that the proceedings of 
the NJAC wi/I be completely transparent and any one can 
have access to information that is available with the NJA C -
This is a rather sweeping
generalization which obviously does F 
not take into account the privacy of a person who has been 
recommended for appointment, particularly as a judge of the 
High Court or in the first instance as a judge of the Supreme 
Court - The right to know is not a fundamental right but at 
best it is an implicit fundamental right and it is hedged in with G 
the implicit fundamental right to privacy that all people enjoy 
- The balance between the two implied fundamental rights 
is difficult to maintain, but the ggth Constitution Amendment 
Act and the NJAC Act do not even attempt to consider, Jet 
H
28 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
alone achieve that balance - Constitution (Ninety-ninth 
Amendment) Act, 2014 - National Judicial Appointments 
Commission Act, 2014. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - 991h Constitution Amendment Act 
8 
declared as altering the basic structure of the Constitution -
Effect of- Held (per Lokur, J.): The constitutional provisions 
amended by the 991h Constitution Amendment Act spring 
back to life on the declaration that the ggrh Constitution 
C Amendment Act is unconstitutional -
Constitution (Ninety-
Ninth) Amendment Act, 2014. 
Constitution (Ninety-ninth Amendment) Act, 2014 -
Validity of- Held (per Lokur, J.): It alters the basic structure 
of the Constitution by introducing substantive changes in the 
D appointment of judges to the Supreme Court and the High 
Courts and rewriting Art.124(2) and Art.217(1) of the 
Constitution, thereby seriously compromising the 
independence of the judiciary - Consequently, the ggrh 
Constitution Amendment Act is unconstitutional -
The 
E 99th Constitution Amendment Act has completely changed 
the constitutional position and changed the role of the 
President in the appointment process as a/so substantially 
modified the mandatory consultation with the Chief Justice 
of India and substituted or replaced the entire process by a 
F recommendation of the NJAC -
The 99th Constitution 
Amendment Act and the NJAC Act raise a series of 
unanswered
questions- It is true that the Constitution cannot 
specify and incorporate each and every detail, particularly 
procedural details - But the same time, the substantive 
G requirements of the NJAC scheme must be apparent from 
the 99th Constitution Amendment Act read with the NJAC 
Act, particularly when it seeks to overthrow an existing method 
of appointment of judges that maintains the independence 
H of the judiciary- Vital issues cannot be left to be sorted out
SUPREME COURT ADVOCATES-ON-RECORD 
29 
ASSOCIATION v. U.0.1. 
at a later date through supplementary legislation or A 
supplementary subordinate legislation, otherwise an 
unwholesome hiatus would be created, making matters worse 
- Constitution oflndia'-Arts. 124(2) and 217(1). 
National Judicial Appointments Commission Act, 2014 
- Validity of - Held (per Lokur, J.): Since the 99th Constitution 
B 
Amendment Act is unconstitutional, the National Judicial 
Appointments Commission Act, 2014 which is the child of 
the 99th Constitution Amendment Act cannot independently 
survive on the statute books - Even otherwise, it violates C 
Article 14 of the Constitution by enabling substantive 
arbitrariness in the appointment of judges to the Supreme 
Court and the High Courts - Judiciary - Higher judiciary -
Constitutional Courts -Appointment and transfer of Judges 
- Constitution of India -Art. 14. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Independence of the judiciary and 
the appointment process - Held (per Lokur, J.): The 
independence of the judiciary begins with the appointment 
D 
of a judge - There is no doubt that the appointment of a judge E 
to the Supreme Court or the High Court is an integral part of 
the independence of the judiciary- However, it is not possible 
to agree with the Attorney-General when he says that though 
the appointment of a judge is a part of the independence of 
the judiciary, it is but a small part and
certainly not a F 
predominant part - It is really the foundational part of the 
independence of the judiciary- The process for appointment 
and the actual appointment of a judge to a High Court or the 
Supreme Court is a predominant part of the independence 
of the judiciary and, therefore, an integral part of the basic G 
structure of the Constitution. 
Constitution of India - Amendment to - Grounds of 
challenge - Difference from grounds for challenging a 
Parliamentary statue - Held (per Lokur, J.): An amendment H
30 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A to the Constitution can be challenged only if it alters the basic 
structure of the Constitution -
Whereas a law can be 
challenged if: (1) It is beyond the competence of the 
Legislature; (2) It violates Article 13 of the Constitution; (3) It 
is enacted contrary to a prohibition in the Constitution; and 
B (4) It is enacted without following the procedure laid down in 
the Constitution - Doctrines I Principles - Basic structure 
doctrine. 
Judiciary - Higher judiciary - Constitutional Courts -
C Appointment of Judges - Factors to be considered - Held 
(per Lokur, J.): There are two crucial factors- (1) Professional 
. skills, judicial potential, suitability and temperament of a 
person to be a good judge, and (2) personal strengths, 
weaknesses, habits and traits of that person -As far as the 
0 professional skills, judicial potential, suitability and 
temperament of a person being a good judge is concerned, 
the most appropriate person to make that assessment would 
be the Chief Justice of India (in consultation with the other 
judges) and not somebody from outside the legal fraternity-
E On the other hand, as far as the personal strengths, 
weaknesses, habits and traits of a person are concerned, 
appropriate inputs can come only from the executive, since 
the Chief Justice of India and other judges may not be aware 
of them - Chief Justice of India is the 'expert' with regard to 
F potential while the executive is the
'expert' with regard to the 
antecedents and personal traits - Since these two facets of 
the personality of a would-be judge are undoubtedly distinct, 
there cannot be a difference of opinion between the judiciary 
and the executive in this regard since they both express an 
G opinion on different facets of a person's life -
The Chief 
Justice of India cannot comment upon the 'expert opinion' of 
the executive nor can the executive comment upon the 'expert 
opinion' of the Chief Justice of India. 
H 
Judiciary - Higher judiciary - Constitutional Courts -
SUPREME COURT ADVOCATES-ON-RECORD 
31 
ASSOCIATION v. U.0.1. 
Appointment of Judges -
Constitution (Ninety-ninth A 
Amendment) Act, 2014 - National Judicial Appointments 
Commission Act, 2014 - Validity of - Held (per Lokur, J.): 
The Second Judges case acknowledged that the President 
has the discretion to turn down a recommendation made by 
the Chief Justice of India, but only under certain B 
circumstances - This was the fetter on the discretion of the 
President - However, the ggrh Constitution Amendment Act 
and the NJAC Act have completely taken away the discretion 
of the President to turn down a recommendation for the 
appointment of a judge, reducing the constitutional C 
significance of the President -
The ggrh Constitution 
Amendment Act and the NJAC Act have taken away this 
freedom of consultation from the President, who has no option 
but to take into account only the recommendation of the NJAC 0 
and not travel beyond that - Once again, the constitutional 
significance and importance of the President is considerably 
reduced, if not taken away- The 99'h Constitution Amendment 
Act and the NJACAct have considerablylimited and curtailed 
the authority of the Chief Justice of India (both individually E 
as well as institutionally) and the Chief Justice of India is now 
precluded from taking the opinion of other judges or of any 
person outside the NJAC - The Chief Justice of India has 
been reduced to an individual figure from an institutional head 
- The ggrh
Constitution Amendment Act and the NJAC Act F 
reversed the process well thought out in the Second Judges 
case and the Third Judges case and have taken away the 
constitutional authority of the Chief Justice of India and placed 
it on a platter for the NJA C to exploit- Given our constitutional 
history, the established conventions, the views of various G 
committees over the last seventy years and the views of 
scores of legal luminaries beginning with Mr. Motilal Setalvad, 
the throes through which the judiciary has gone through over 
several decades and the provisions of our Constitution, 
H
32 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Article 124A as introduced in the Constitution by the 
Constitution (Ninety-ninth Amendment) Act, 2014 impinges 
on the independence of the judiciary and in the matter of 
appointment of judges (which is a foundational and integral 
part of the independence of the judiciary) and alters the basic 
B structure of the Constitution - It is accordingly declared 
unconstitutional - The other provisions of the Constitution 
(Ninety-ninth Amendment) Act, 2014 cannot stand by 
themselves and are therefore also declared unconstitutional 
- Similarly, the National Judicial Appointments Commission 
C Act, 2014 confers arbitrary and unchartered powers on 
various authorities under the statute and it violates Article 14 
of the Constitution and is declared unconstitutional - Even 
otherwise, the National Judicial Appointments Commission 
0 
Act, 2014 cannot stand alone in the absence of the 
Constitution (Ninety-ninth Amendment) Act, 2014 -
The 
result of this declaration is that the 'co/legium system' 
postulated by the Second Judges case and the Third Judges 
case gets revived - However, the procedure for appointment 
E of judges as laid down in these decisions read with the 
(Revised) Memorandum of Procedure definitely needs fine 
tuning- There is a need to have a 'consequence hearing' to 
assist in the matter for steps to be taken in the future to 
streamline the process and procedure of appointment of 
F judgf!S, to make it more
responsive to the needs of the 
people, to make it more transparent and in tune with societal 
needs, and more particularly, to avoid a Fifth Judges case -
Constitution (Ninety-ninth Amendment) Act, 2014- National 
Judicial Appointments Commission Act, 2014. 
G 
Constitution (Ninety-ninth Amendment) Act, 2014 -
H 
Validity of - Appointment and transfer of Judges in 
Constitutional Courts - Scheme and structure - Discussed 
- Held (per Kurian, J.): During the first phase of the working 
of the Constitution, the Executive claimed an upper hand in
SUPREME COURT ADVOCATES-ON-RECORD 
33 
ASSOCIATION v. U.0.1. 
the appointment and the Chief Justice of India or the Chief A 
Justices of the High Courts concerned were only to be 
'consulted', the expression often understood in its literaf 
sense - The decision was taken by the Executive with the 
participation of the Chief Justice - This process fell for scrutiny 
in the decision of Supreme Court in Samsher Singh case B 
wherein a seven-Judge Bench, inter alia held that 
"independence of the Judiciary" is a cardinal principle of the 
Constitution which "is guarded by the relevant article making 
consultation with the Chief Justice of India obligatory" and 
that "in all conceivable cases consultation with that highest C 
dignitary of Indian justice will and should be accepted by the 
Government of India''-
The Bench dealing with the First 
Judges Case, which had a coram only of seven, however, 
held otherwise, though with a majority of four against three -
D 
The nine-Judges Bench in the Second Judges Case 
overruled the First Judges Case, holding that appointment 
of Judges to the High Courts and the Supreme Court forms 
an integral part of the independence of judiciary, that 
independence of judiciary is part of the basic structure of the E 
Constitution of India, and therefore, the Executive cannot 
interfere with the primacy of the judiciary in the matter of 
appointments -
Third Judges Case, in 1998, is only an 
explanatory extension of the working of the principles in
the 
Second Judges Case by institutionalizing the procedure of F 
appointment, introducing the Collegium- Thus, the structural 
supremacy of the judiciary in the constitutionally allotted 
sphere was restored by the Second and Third Judges Cases 
- This Bench is bound by the ratio that independence of 
judiciary is part of the basic structure of Constitution and that G 
the appointment of Judges to the High Courts and the 
Supreme Court is an integral part of the concept of 
independence of judiciary-And for that simple reason, the 
Constitution 99rh Amendment is declared unconstitutional -
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34 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Judiciary- Higher Judiciary- Constitutional Courts. 
National Judicial Appointments Commission Act, 2014 
- ,Validity of- Held (per Kurian, J.): Since it is being held by 
the majority that the amendment itself i.e. Constitution 99th 
amendment is bad, there is no point in dealing with the validity 
8 
of the creature of the amendment, viz., the National Judicial 
Appointments Commission Act, 2014- It does not exist under 
law- Judiciary- Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges. 
c 
Constitutional Law - Interpretation of Constitution -
Typology of constitutional arguments- "Historical': "textual", 
"structural", "prudential", "doctrinal" and "ethical" - Effect of 
Constitution 991h amendment - Held (per Kurian, J.): In 
interpreting the Constitution, all the tools are to be 
o appropriately used, and quite often, in combination too - In 
the present case, the Constitution 99th amendment has 
introduced a new constitutional scheme for appointment of 
Judges to the High Courts and the Supreme Court - The 
three constitutional wings, their powers and functions under 
E the Constitution, and their intra relationship being the key 
issues to be analysed in the present case, the 'structural tool' 
is to be prominently applied for resolving the issues- Validity 
of the Constitution 99th amendment is to be tested on the 
touchstone of the theory of the basic structure - Separation 
F of powers is the
tectonic structure of the Constitution of India 
- Under the constitutional scheme, one branch does not 
interfere impermissibly with the constitutionally assigned 
powers and functions of another branch - The permissible 
areas of interference are the checks and balances- But there 
G are certain exclusive areas for each branch which can be 
described as powers central~ There shall be no interference 
on powers central of each branch -Any attempt by diluting 
the basic structure to create a committed judiciary, however 
H remote be the possibility, is to be nipped in the bud - The
SUPREME COURT ADVOCATES-ON-RECORD 
35 
ASSOCIATION v. U.0.1. 
Parliament has no power to gerrymander the Constitution -
A 
The Constitution ggth amendment impairs the structural 
distribution of powers, and hence, it is impermissible - . 
·Constitution (Ninety-ninth Amendment) Act, 2014. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges -
New scheme 8 
envisaged in terms of the Constitution (Ninety-ninth 
Amendment) Act, 2014 for replacing the Collegium system 
-
Whether even if the said Constitutional amendment is 
struck down, the Collegium does not resurrect - Held (per C 
Kurian, J.): The argument does not appeal even to common 
sense - The 991h Amendment sought to 'substitute' a few 
provisions in the Constitution and 'insert' a few new provisions 
- Once the process of substitution and insertion by way of a 
constitutional amendment is itself held to be bad and D 
impermissible, the pre-amended provisions automatically 
resurface and revive -
Constitution (Ninety-ninth 
Amendment) Act, 2014. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges - Collegium system -
E 
Need for improvement therein - Held (per Kurian, J.): The 
present Collegium system lacks transparency, accountability 
and objectivity- The trust deficit has affected the credibility 
of the Collegium system, as sometimes observed by the civic 
society - Quite often, very serious a/legations and many a F 
time not unfounded
too, have been raised that its approach 
has been highly subjective - The allegations certainly call 
for a deep introspection - It is a curable situation yet - No 
doubt, the fault is not wholly of the Collegium - The Second 
and Third Judges Case had provided effective tools in the 
G 
/)ands of the Executive to prevent aberrations - Executive 
seldom effectively used those tools -
Therefore, the 
Co/legium system needs to be improved requiring a 
'glasnost' and a 'perestroika', and hence the case needs to 
H
36 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A be heard further in this regard. 
Constitution of India - Art.368 - Amendment of 
Constitution - Limitation on Power of the Parliament to 
amend the Constitution - Test of basic"Structure - Held (per 
Goel, J.): Article 368 of the Constitution provides for power to 
8 
amend the Constitution and procedure therefor - A 
constitutional amendment has to pass the test of basic 
structure - Whether or not the basic structure was violated 
has to be finally determined by the Supreme Court from case 
C tocase. 
·Constitution of India - Basic structure I feature - What 
is- Held (per Goel, J.): Whether a feature of the Constitution 
is basic feature or part of basic structure is to be determined 
having regard to its place in the scheme of the Constitution 
o and consequence of its denial on the working of the 
Constitution. 
Judiciary- Judiciary and democracy- Held (per Goel, 
J.): It is the faith of the people in the impartiality and 
competence of judiciary which sustains democracy - The 
E judiciary is entrusted the power to control the power of the 
Executive and the Legislature whenever it is alleged that the 
said organs have exceeded their constitutionally assigned 
authority- This is the essence of the democracy. 
F 
Judiciary- Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges- Scheme and structure 
- Whether primacy of Judiciary in Appointment of Judges is 
part of basic structure:; Held (per Goel,
J.): The decisions of 
the Supreme Court expressly lay down that independence 
G of judiciary and judicial review are part of basic structure -
Broad separation of powers between the three departments 
of the State is a part of doctrine of checks and balances- It is 
also a part of democracy - Independence of judiciary is 
integral to the entire scheme of the Constitution without which 
H
SUPREME COURT ADVOCATES-ON-RECORD 
37 
ASSOCIATION v. U.0.1. 
neither primacy of the Constitution nor Federal character, 
A 
Social Democracy nor rights of equality and liberty can be 
effective - The earlier decisions in Second and Third Judges' 
case have to be taken as binding precedents - Once it is so, 
it has to be held that primacy of the judiciary in appointment 
of judges is part of the basic structure - Appointment of B 
judges is part of independence of judiciary- It is the faith of 
the people in the impartiality and competence of judiciary 
which sustains democracy- If appointment of judges, which 
is integral to functioning of judiciary is influenced or controlled 
by the Executive, it will certainly affect impartiality of judges C 
and their functioning - The acknowledged scheme of the 
Constitution and its working is not to allow domination of the 
Executive in appointment of Judges - Even by amendment 
primacy of judiciary in appointment of judges cannot be D 
excluded - Plea of presumption of constitutionality can be 
of no avail where an established basic feature of the 
Constitution is sought to be damaged - Similarly, the plea 
that Parliament is best equipped to assess the needs of the 
people is not enough reason to extend the power of E 
Parliament to amend the basic feature of the Constitution -
The change of time does not justify greater role for the 
Executive in appointment of judges - Independence of 
judiciary is key element in the entire
functioning of the 
Constitution and such independence is integrally linked with 
F 
the appointment of judges free from Executive interference 
- Any perceived shortcoming in the working of existing 
mechanism of appointment of judges cannot by itself justify 
alteration or damage of the existing scheme once it is held 
to be part of basic feature - Primacy of judiciary and limited G 
role of the Executive in appointment of judges is part of the 
basic structure of the Constitution - The primacy of judiciary 
is in initiating a proposal and finalising the same - The CJ/ 
has the last word in the matter- The Executive is at liberty to 
H
38 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A give suggestions prior to initiation of proposal and to give 
feedback on character and antecedents of the candidates 
proposed and object to the appointment for disclosed 
reasons as held in Second and Third Judges' cases. 
Judiciary - Higher Judiciary - Constitutional Courts -
8 
Appointment and transfer of Judges - Amendment in 
scheme and structure - National Judicial Appointments 
Commission (NJAC) set up under the aegis of Constitution 
(Ninety-ninth Amendment) Act, 2014 read with the National 
C Judicial Appointments Commission Act, 2014 - NJAC to 
comprise the Chief Justice of India, Chairperson, ex officio; 
two other senior Judges of Supreme Court, next to the Chief 
Justice of India as Members, ex officio; the Union Minister in 
charge of Law and Justice as Member, ex officio; and two 
D eminent persons, to be nominated by a Committee 
consisting of the Prime Minister, the Chief Justice of India 
and the Leader of Opposition in the House of the People -
Whether under the impugned amendment the basic feature 
of primacy of judiciary in appointment of judges has been 
E altered or damaged - Held (per Goel, J.): Under the un-
amended scheme of appointment of judges, which is a basic 
feature of the Constitution, the President is to make 
appointment, after consultation with the CJ/ representing the 
judiciary- Dfsregarding the views of the CJ/ is permissible 
F in exceptional situations for recorded reasons having
bearing 
on character and antecedents of a candidate and if such 
reasons are found to be acceptable to the CJ/ - Under the 
amended scheme, no such final view can be taken by the 
CJ/ -
Without giving any reason, the Minister or the 
G nominated members can reject the unanimous view of the 
judges - Chief Justice of the High Court is not a member of 
the Commission and has no Constitutional role in 
appointment/transfer of the judges of the High Courts- Mere 
fact that without the judges, the Minister and the nominated 
H
SUPREME COURT ADVOCATES-ON-RECORD 
39 
ASSOCIATION v. U.0.1. 
members cannot make an appointment is not at par with the 
A 
situation where a decision itself is taken by the CJ/ 
representing the judiciary- Even if in appointing two eminent 
members CJ/ is a/so a member of the Committee, the fact 
remains that the PM and the Leader of the Opposition have 
significant role in appointing such members, who will have B 
power not only equal to the CJ/ and two senior most judges 
of the Supreme Court in making appointment of judges of 
the Supreme Court and appointment/transfer of judges of 
the High Courts but also right to reject the unanimous 
proposal of the CJ/ and the two senior most judges - Such C 
composition of the Commission cannot be held to be 
conducive to the independence of judiciary - Appointment 
of judges of the Supreme Court and appointment/transfer of 
judges of the High Courts, can certainly be influenced to a 
D 
great extent by the Law Minister and two nominated members, 
thereby affecting the independence of judiciary -
The 
amendment does away with the primacy of even unanimous 
opinion of the judicial members as such opinion is not 
enough to finalise an appointment-The primacy of judiciary E 
as always understood in binding judicial precedents 
comprises of initiation of name and taking a final call- These 
two core features constitute identity of the primacy of judiciary 
- This concept of primacy is compromised if the judiciary is 
unable to initiate
a proposal in the first instance or if such F 
proposal can be effectively rejected - The impact thereof 
being that the appointment of judges could be made under 
the influence of the Executive represented by the Law Minister 
or the non-judge members in whose appointment the pre-
dominant voice is not of the judiciary - The impact of such G 
appointments will be that the judges appointed will owe their 
appointments to the Executive which may be destructive of 
the public confidence and impartiality of judiciary a.nd 
adversely affect the role of the judiciary as an important 
H
40 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
impartial constitutional organ - Constitutionally conferred 
judicial primacy in appointment of judges cannot be whittled 
down or sought to be controlled by those who are not given 
or allowed to take over such functions - Even granting the 
best of intentions, the Parliament could not act beyond the 
B authority conferred on it by the Constitution - Thus, taking 
away primacy of judiciary or conferring such primacy on a 
body which is not at par with the said concept is certainly not 
a choice available with the Parliament- The Constitution of 
India has its own background and personality - Models of 
C other countries could not be blindly followed so as to damage 
the identity and personality of the Indian Constitution - The 
Judicial Commissions referred to by the Attorney General 
do not show the trend of reducing the pre-existing role of 
0 judiciary- In fact, the trend is for reducing the pre-existing 
role of the Executive - In the impugned amendment it is the 
reverse -
Thus, the contention of working of other 
Constitutions or setting up of judicial Commissions with 
varying compositions in other countries does not justify the 
E impugned amendment which is contrary to the basic structure 
of the Indian Constitution - There is no merit in the contention 
that in the present case mere alteration in a constitutional 
provision does not amount to damage of a basic feature - It 
is not a case of simple amendment to iron
out creases - Its 
F impact clearly affects the independence of judiciary - Pre-
dominant role of the Executive is not permissible - The new 
scheme damages the basic feature of the Constitution under 
which primacy in appointment of judges has to be with the 
judiciary - Under the new scheme such primacy has been 
G given a go-bye- Thus the impugned amendment cannot be 
sustained -
Constitution (Ninety-ninth Amendment) Act, 
2014. 
H 
Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Amendment in
SUPREME COURT ADVOCATES-ON-RECORD 
41 
ASSOCIATION v. U.0.1. 
scheme and structure - National Judicial Appointments A 
Commission (NJAC) set up under the aegis of Constitution 
(Ninety-ninth Amendment) Act, 2014 read with the National 
Judicial Appointments Commission Act, 2014- NJAC apart· 
from Judges comprising of Law Minister and two eminent 
persons to be nominated by a specified Committee- One of B 
the eminent person was to be nominated from amongst the 
persons belonging to the Scheduled Castes, the Scheduled 
Tribes, Other Backward Classes, Minorities or Women -
Such reservation for one of the nominated members 
challenged- Held (per Goel, J.): The views of the Constitution C 
makers and eminent expert committees clearly show that role 
of the Executive in appointment of judges has to be minimum 
and by and large limited to check the character and 
antecedents of the candidates and not to finally assess the D 
merit and suitability of such candidates - In this view of the 
matter, even ifthe contention that no guideline was required 
for criteria for appointment of eminent persons when the 
Committee will be comprised of high dignitaries is accepted 
the fact remains that such persons will play not merely E 
supporting but pre-dominant role in appointing Supreme 
Court and High Court judges which will not be congenial to 
the independence of judiciary - There is no justification for 
reservation for one of the nominated members being from · 
specified categories-
Such provision is against the scheme F 
of the Constitution and contrary to the object of selecting 
judges purely by merit - The nature of appointment does 
not justify any affirmative action for advancement of any 
socially and educationally backward classes or for the 
Scheduled Castes or Scheduled Tribes or women - The 
G 
appointment of judges has to be on evaluation of merits and 
suitability of the candidates - Religion, caste or sex of the 
evaluator has no relevance. 
Judiciary - Higher Judiciary - Constitutional Courts -
H
42 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
· A Appointment and transfer of Judges - Evaluation and 
suitability of a candidate for appointment as judge of the 
Supreme Court or High Courts - Held (per Goel, J.): The 
· appointment of a judge of the Supreme Court is normally 
made out of Chief Justices of High Courts or senior judges 
B or eminent lawyers or eminent jurists whose merit is better 
known to senior judges- Their evaluation has to be impartial 
and free from any political or other considerations- Persons 
making selection are required to be best placed to assess 
their merit and suitability - Pre-dominant and decisive role 
C of the judiciary is a requirement not only of independence of 
judiciary and separation of powers but also for inspiring 
confidence of the people at large necessary for strength of 
the Democracy- The citizens having a grievance of violation 
0 
of their fundamental and legal rights against the Executive 
or the Legislature expect that their grievance is considered 
by persons whose appointments are not influenced by the 
Executive or the Legislature- If an appointment is perceived 
as being influenced by political consideration or any other 
E extraneous influence, faith in impartiality, which is hall mark 
of independence of judiciary, will be eroded - The scheme 
in other countries cannot be mechanically followed when it is 
in conflict with the basic scheme of the Indian Constitution. 
Constitutional Law - Amendment of Constitution -
F 'Identity test' and the 'impact test' - Held (per Goel, J.): The 
word amendment literally means betterment or improvement 
and sponsor of amendment may always claim improvement 
- Such claim has to be tested by applying the 'identity test' 
and the 'impact test' - The amendment should not affect the 
G identity of an essential feature of the Constitution -
The 
impact of the amendment on the working of the scheme of 
the Constitution has to be taken into account- This brings to 
some extent subjective element which is unavoidable even 
while testing any legislation which is alleged to be violative 
H
SUPREME COURT ADVOCATES-ON-RECORD 
43 
ASSOCIATION v. U.0.1. 
of fundamental rights and justified on the concept of A 
'reasonable restrictions' - In this regard, effect of Executive 
interference which has been documented by expert studies 
cannot be held to be irrelevant or ignored on the ground that 
this is a subject of wisdom of Parliament- It is not merely the 
text of the amendment but also its impact and potential which 
B 
has to be kept in mind on 'identity' of the original scheme 
and the 'width' of the power under the new scheme- The new 
scheme may iron out the creases but the mechanism should 
be comparable to the substituted scheme -
Words and 
Phrases - "amendment" - Meaning of. 
C 
Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Procedure - New 
scheme and structure -
Six-member National Judicial 
Appointments Commission (NJAC) set up - NJAC apart D 
from Judges comprising of Union Law Minister and two 
eminent persons to be nominated by a specified Committee 
- Presence of Law Minister and two eminent persons - If 
proper- Held (per Goel, J.): Under the new scheme, the Law 
Minister has been given role equal to the CJ/ - Right from 
E 
the commencement of the Constitution, this role of the Law 
Minister was never envisaged while initiating the process and 
finalizing it - Law Minister, in participatory scheme, could at 
best. suggest a name or give his comments on the names 
proposed but the proposal could and was
always initiated by F 
the CJ/ - At the stage of initiation, if equal authority is 
conferred, this will erode the primacy of judiciary- Other two 
persons to be nominated by a Committee which also has 
predominant political voice to be placed at par with the CJ/ 
in initiating and finalizing a proposal destroys the original G 
scheme beyond its identity-Any suggestion before initiation 
of a name or feedback even after initiation may be useful 
and may not affect independence of judiciary but equal 
participation by the Law Minister and two outsiders in final 
H
44 
SUPREME COURT REPORTS 
[2015] 138.C.R. 
A 
decision for initiation or appointment can be detrimental to 
the independence of judiciary- It cannot be wished away by 
presuming that the Law Minister and the two distributors will 
not be influenced by any extraneous consideration - Such a 
presumption will be contrary to the acknowledged factual 
B experience - It will also be against the concept of separation 
of judiciary from the Executive- More over this will be contrary 
to the basic intention of the Constitution makers. 
National Judicial Appointments Commission Act, 2014 
C - ss.2, 3, 5(2), Second proviso to s.5(2), 5(3), 6(1), 6(2), 6(3), 
6(6), 6(8), 8 & 13- Validity of the NJACAct-Held (per Goel, 
J.): In view of the conclusion about the Constitution (Ninety-
ninth Amendment) Act being beyond the competence of the 
Parliament, it is not necessary to discuss the validity of the 
0 
NJAC Act as the said Act cannot survive once the amendment 
is struck down - However, consistent with the view that primacy 
of judiciary in appointment of judges cannot be 
compromised, and on that ground not only s.2 of the 
Amendment dispensing with the mandatory consultation with 
E the judiciary as contemplated under the unamended 
provisions, s.3 conferring power on the NJAC (under Article 
1248) and providing for composition of the Commission 
under Article 124A giving a role to the Law Minister and two 
eminent persons equal to the CJ/ in recommending 
F appointments as CJ/,
Judges of Supreme Court, Chief 
Justices and other Judges of the High Courts and 
recommending transfer of Chief Justices and Judges of the 
High Courts are unconstitutional but also Article 124C giving 
power to the Parliament to regulate the procedure and to lay 
G down the manner of selection was also unconstitutional, the 
impugned Act has to bf) struck down - It goes far beyond the 
procedural aspects- In s.5(2) 'suitability criteria' is left to be 
worked out by regulations - Second proviso to s.5(2) and 
H
SUPREME COURT ADVOCATES-ON-RECORD 
45 
ASSOCIATION v. U.0.1. 
s. 6(6) give veto to two members of the Commission which is A 
not contemplated by the Amendment - s.5(3) and s.6(8) 
provide for conditions for selection to be laid down by 
regulations which are not mere procedural matters - s. 6 
authorises the recommendations for appointment as judges 
of the High Courts without the proposal being first initiated 
B 
by the Chief Justice of the High Court- s.6(1) provides for 
recommendation for appointment of Chief Justice of a High 
Court on the basis of inter se seniority of High Court Judges 
- This may affect giving representation to as many High 
Courts as viable as, in inter se seniority, many judges of only C 
one High Court may be senior most - s. 6(2) provides for 
seeking nomination from Chief Justices of High Courts, but 
s.6(3) empowers the Commission itself to make 
recommendation for appointment as Judge of the High Court D 
and seek comments from Chief Justice after short listing the 
candidates by itself- s.8 enables the Central Government 
to appoint officers and employees of the Commission and 
to lay down their conditions of service - The Secretary of tf1e 
Government is the Convenor of the Commission -
s. 13 E 
requires all regulations to be approved by the Parliament -
These provisions in the Act impinge upon the independence 
of judiciary - Even if the doctrine of basic structure is not 
applied in judging the validity of a parliamentary statute,
independence of judiciary and rule of law are parts of Articles F 
14, 19 and 21 of the ConsUtuUon and absence of 
independence of judiciary affects the said Fundamental · 
Rights - The NJAC Act is thus liable to be struck down -
Constitution of India -Arts. 124A, 1248 and 124C. 
Judiciary- Higher Judiciary - Constitutional Courts -
G 
Appointment and transfer of Judges -
Procedure -
Amendment in - Effect of Amendment being struck down -
Held (per Goel, J.): The contention that even (f Amendment 
is held to be void, the pre-existing system cannot be restored 
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46 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
has no logic - In exercise of power of judicial review, a 
provision can be declared void in which case the legal position 
as it stands without such void provision can be held to prevail 
- It is not a situation when position has not been made clear 
while deciding an issue- On amendment being struck down, 
B the pre-existing system stands revived- Constitution (Ninety-
ninth Amendment) Act, 2014. 
Judiciary- Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges - Procedure - Review 
C of Working of the Existing System- Held (per Goel, J.): Since 
the system existing prior to amendment will stand revived 
on the amendment being struck down and grievances have 
been expressed about its functioning, such grievances ought 
to be considered - Such grievances ought to be gone into 
0 
for which the matter needs to be listed for hearing - The 
impugned Constitution Amendment and the NJAC Act are 
struck down as unconstitutional - Pre-existing scheme of 
appointment of judges stands revived- The matter be listed 
for consideration of the surviving issue of grievances as to 
E working of pre-existing system - Constitution (Ninety-ninth 
Amendment) Act, 2014 - National Judicial Appointments 
Commission Act, 2014. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges -
Scheme of the 
F Constitution -
History and debates in the Constituent 
· Assembly- Consultation with the
Chief Justice of India -
Interpretation of -
Role of the Parliament - Held (per 
Chelameswar, J.) (Minority opinion): The legislative history 
clearly indicates that the members of the Constituent 
G Assembly clearly refused to vest an absolute and unfettered 
power to appoint Judges of the constitutional courts in any 
one of the 3 branches of the Constitution - Constituent 
Assembly declined to assign any role to the Parliament - It 
H declined to vest an unbridled power in the executive -At the
SUPREME COURT ADVOCATES-ON-RECORD 
47 
ASSOCIATION v. U.0.1. 
same time did not agree with the proposal that the CJl's A 
concurrence is required for any appointment -
Word 
'consultation' instead of 'concurrence' was used, but that was 
done merely to indicate that absolute discretion was not given 
to any one, not even to the Chief Justice of India as individual, 
much less to the executive, which earlier had absolute 
B 
discretion under the Government of India Acts - The Court 
never held that consultation means concurrence as is sought 
to be interpreted in some quarters and even in the stated 
objects and reasons for the Amendment. 
Constitution of India -Amendment to- Effect of- Held C 
(per Chelameswar, J.) (Minority opinion): Amendment of one 
or some of the Articles constituting a basic feature may or 
may not result in the destruction of the basic structure of the 
Constitution - It all depends on the context-Amendment of D 
a single article may result in the destruction of the basic 
structure of the Constitution depending upon the nature of 
the basic feature and the context of the abrogation of that 
article if the purpose sought to be achieved by the Article 
constitutes the quintessential to the basic structure of the 
E 
Constitution. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges -
Held (per 
Chelameswar, J.) (Minority opinion): Any appointment 
process established under the Constitution must necessarily F 
be
conducive for establishment of not only an independent 
judiciary but also ensure its efficiency- the two qualities 
essential for preservation of liberty. 
Judiciary - Higher judiciary - Constitutional Courts -
G 
Appointment of Judges - Whether primacy to the opinion of 
the judiciary in the matter of judicial appointments is essential 
- Held (per Chelameswar, J.) (Minority opinion): There is 
abundance of opinion (in discerning and responsible 
quarters of the civil society in the legal fraternity, jurists, 
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48 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A political theorists and scholars) that primacy to the opinion 
of judiciary is not a normative or constitutional fundamental 
for establishment of an independent and efficient judiciary-
The basic feature of the Constitution is not primacy of the 
opinion of the CJ/ (Collegium) but lies in non- investiture of 
B absolute power in the President (Executive) to choose and 
appoint judges of Constitutional Courts -- To assume or 
assert that judiciary alone is concerned with the preservation 
of liberties and does that job well, is an assumption that is 
dogmatic, bereft of evidentiary basis and historically 
C disproved - Judiciary is not the only constitutional organ 
which protects liberties of the people -Accordingly, primacy 
to the opinion of the judiciary in the matter of judicial 
appointments is not the only mode of securing independence 
0 
of judiciary for protection of liberties - Consequently, the 
assumption that primacy of the Judicial Branch in the 
appointments process is an essential element and thus a 
basic feature is empirically flawed without any basis. 
Judiciary - Higher judiciary - Constitutional Courts -
E Selection of Judges - Scheme envisaged in terms of six-
member National Judicial Appointments Commission 
(NJAC) - Whether the presence of the Law Minister in the 
NJAC, which confers 116 of the voting power per se 
undermines the independence of the judiciary - Held (per 
F Chelameswar, J.) (Minority
opinion): No- The Executive with 
a vast administrative machinery under its control is capable 
of making enormous and valuable contribution to the 
selection process - The objection is justified to some extent 
on the trust deficit in the Executive Branch in the 
G constitutional sense, to be a component of the NJA C - The 
same logic applies a fortiari to the Judicial branch, 
notwithstanding the belief that it is the least dangerous branch 
- The Constituent Assembly emphatically declined to repose 
exclusive trust even in the CJ/ -
To wholly eliminate the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
49 
ASSOCIATION v. U.0.1. 
Executive from the process of selection would be inconsistent A 
with the foundational premise that government in a 
democracy is by chosen representatives of the people -
Such exclusion has no parallel in any other democracy 
whose models were examined by the Constituent Assembly 
-
Established principles of constitutional government B 
practices in other democratic constitutional arrangements 
and the fact that the Constituent Assembly provided a role 
for the Executive clearly prohibit the inference that Executive 
participation. in the selection process abrogates a basic 
feature-Exclusion of the Executive Branch is destructive of C 
the basic feature of checks and balances- a fundamental 
principle in constitutional theory. 
Constitution of India-Art. 124A(1)(d)- Stipulation in 
Article 124A(1 )(d) that the National Judicial Appointments D 
Commission (NJAC) should also consist of two eminent 
persons nominated by a Committee consisting of the Prime 
Minister, the Chief Justice of India and the Leader of 
Opposition - Legality of -
Held (per Chelameswar, J.) 
(Minority opinion): To believe that members of the judiciary E 
alone could bring valuable inputs to the appointment process 
requires great conceit and disrespect for the civil society -
All power could be misused including judicial power - The 
remedy is not to deny grant of power but to structure it so as 
to eliminate the potential for abuse - The
power to nominate F 
two eminent persons is conferred upon three high 
constitutional functionaries - the Prime Minister, the Leader 
of the Opposition and the CJ/ - It is elementary political 
knowledge that the Prime Minister and the Leader of 
Opposition would always have conflicting political interests G 
and would rarely agree upon any issue - Nonetheless, 
possibility of a bipartisan compromise cannot be ruled out -
Though, the presence of CJ/ in the Committee should 
normally be a strong deterrent, the possibility of the CJ/ failing 
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50 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
to perceive a political compromise or helplessness in the 
event of such compromise, cannot be ruled out -
It is 
incontestable that nomination of eminent persons is not 
immune to judicial review- There is thus possibility of delay 
in functioning of NJAC and inevitably the process of 
B appointments to constitutional courts -
It is, therefore, 
essential that there must be an entrenched process of 
nomination of eminent persons which eliminates risk of 
possible bipartisan compromises -
The only conceivable 
curative is to incorporate another tier of scrutiny/n the process 
C of nomination - Following safeguard would bring this process 
within permissible contours of the basic feature 
simultaneously eliminating the 'delay factor' -
The 
Committee contemplated under Article 124-A(1 )(a) should 
0 
prepare a panel of three members for each of the two 
categories of the nominees (for eminent persons) - in all a 
panel of six persons - Such panel should be placed before 
the full house of the Supreme Court for voting - Nominees 
securing the highest vote in each of the two categories should 
E eventually be nominated as eminent members of the NJAC 
- Such procedure would still preserve the choice of eminent 
persons primarily with the Committee contemplated under 
Art. 124-A, while incorporating sufficient safeguard against 
possible abuse of the power by the Committee. 
F 
Constitution of India - Art. 1248(c) - Article 1248 set
forth the duties of the National Judicial Appointments 
Commission (NJAC) - Art. 124B(c) obligating NJAC to 
ensure that the person recommended is of ability and 
integrity- Contention that the amendment does not lay down 
G any guidelines to be followed by the NJAC for assessing 
ability and integrity - Held (per Chelameswar, J.) (Minority 
opinion): Even in the absence of any express declaration, 
such an obligation is inherent and implied, having regard to 
functional responsibilities entrusted to the NJAC -
The 
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SUPREME COURT ADVOCATES-ON-RECORD 
51 
ASSOCIATION v. U.0.1. 
precision is only an abundanti cautela - Having regard to A 
the nature (i) of the document by which such obligation is 
created; (ii) fhe composition of the body (NJAC} upon which 
the obligation is cast; and (iii) the nature of the assignment, 
the argument is required to be rejected - NJAC is a 
constitutional authority created to perform an important B 
constitutional function - Its charter is the Constitution itse/f-
Notwithstanding, the prolixity of our Constitution, a constitution 
is not expected or required to spell out every minute detail 
regarding administration of the State - Three members of 
the highest judicial body of this country, a member of the C 
Union Cabinet and two eminent persons chosen by a 
Committee consisting of three exalted office holders under 
the Constitution constitute the NJAC- To suggest that the 
NJAC requires detailed guidelines expressly spelt out in the 0 
text of the Constitution amounts to judicially mandating 
inflexible standards for constitutional drafting - The task of 
expounding a Constitution is crucially different from that of 
construing a statute - Even prior to the amendment, the 
constitutional text had no express guidelines for the President E 
and the CJ/ to follow-After the amendment, the obligation is 
unvaried -
The only change is in the composition of the 
players to whom the task is entrusted and the mode of 
performing the task is altered with a-view
to achieve greater 
degree of transparency in the selection process- To contend F 
that the amendment is destructive of the basic structure since 
it does not lay down any guidelines tantamounts to holding 
that the design of the Constitution as originally enacted is 
defective! · 
National Judicial Appointments Commission Act, 2014 G 
- s.6(6) - Stipulation under s.6(6) of the Act that if any two 
members of the NJAC do not agree with the 
recommendation proposed by the NJAC, the NJAC shall not 
recommend such candidate - Legality of - Held (per 
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52 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Chelameswar, J.) (Minority opinion): The question whether 
the content of s. 6(6) confers a power of veto or prescribes a 
special majority is only of semantic relevance - Whatever 
name one calls it, the result is the same - The two members 
of the NJAC can override the opinion of the other four and 
B stall the recommendation - There is nothing inherently illegal 
about such a prescription. 
Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges- Collegium system - If 
C appropriate for assessment of the suitability of candidates 
for appointment as Judges of Constitutional Courts - Held 
(per Chelameswar, J.) (Minority opinion): The fiasco created 
in Dinakaran case and Shanti Bhushan case would justify the 
participation of the members of the civil society in the process 
0 
to eliminate from the selection process the maladies 
involved in the process -
The abovementioned two are 
not the only cases where the system failed - It is a matter of 
public record that in the last 20 years, after the advent of 
the collegium system, number of recommendations made 
E by the collegia of High Courts came to be rejected by the 
col/egium of the Supreme Court -
There are also cases 
where the collegium of the Supreme Court quickly retraced 
its steps having rejected the recommendations of a particular 
name made by the High Court collegium giving scope for a 
F great deal of speculation as to the
factors which must have 
weighed with the collegium to make such a quick volte face 
- Such decisions may be justified in some cases and may 
not in other cases - There is no accountability in this regard 
- The records are absolutely beyond the reach of any person 
G including the judges of the Supreme Court who are not lucky 
enough to become the Chief Justice of India - Such a state 
of affairs does not enhance the credibility of the institution 
and is not good for the people of this country. 
H 
Constitution (Ninety-ninth Amendment) Act, 2014 -
SUPREME COURT ADVOCATES-ON-RECORD 
53 
ASSOCIATION v. U.0.1. 
Validity of - Held (per Chelameswar, J.) (Minority opinion): A 
The amendment is upheld. 
National Judicial Appointments Commission Act, 2014 
- Validity of- Held (per Chelameswar, J.) (Minority opinion): 
In view of the majority decision holding the Constitution 
(Ninety-ninth Amendment) Act to be unconstitutional and 8 
void, there is no useful purpose in examining the 
constitutionality of the National Judicial Appointments 
Commission Act, 2014 -
Constitution (Ninety-ninth 
Amendment) Act, 2014. 
c 
Constitution of India - "Basic Features" and "Basic 
Structure" - Held (per Chelameswar, J.) (Minority opinion): 
The expressions 'basic structure' and 'basic features' convey 
two different ideas - The basic structure of the Constitution 
is the sum total of the basic features of the Constitution -
o 
The basic features are components of basic structure- Either 
a particular Article or set of Articles can constitute a basic 
feature of the Constitution - Amendment of one or some of 
the Articles constituting a basic feature may or may not result 
in the destruction of the basic structure of the Constitution. 
E 
Practice and Procedure - Supreme Court - Recusal 
of Judge at the asking of a litigating party- If proper - New 
scheme contemplated for replacing the Collegium system 
of appointment and transfer of Judges in Constitutional 
Courts - National Judicial Appointments Commission set F 
up under the aegis of
Constitution (Ninety-ninth Amendment) 
Act, 2014 read with the National Judicial Appointments 
Commission Act, 2014 - Constitutional validity of the said 
two enactments challenged in writ petitions filed before the G 
Supreme Court of India- Matter originally listed before three-
Judge Bench - Later referred to a five-Judge Bench, 
comprising of Ani/ R. Dave, Chelameswar, Madan B. Lokur, 
Kurian Joseph and Adarsh Kumar Goel, JJ. - Subsequently, 
Hon'ble CJ/ reconstituted the Bench with J.S. Khehar, J. 
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54 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh 
Kumar Goel, JJ. - Hon'ble Mr. Justice J. S. Khehar, Presiding 
Judge on the reconstituted Bench, at that time was a member 
of the Collegium of five H<?n'ble Judges -
When the 
reconstituted Bench commenced hearing, prayer made for 
B recusal of Hon'ble Mr. Justice J. S. Khehar from the Bench -
Prayer for recusal on ground that the position of Hon'ble Mr. 
Justice J.S. Khehar as the Presiding Judge on the Bench 
was not consistent with (and apparently at conflict with) his 
position as a member of the 'Collegium' which exercises 
C significant constitutional power; and that it was inappropriate 
if a sitting member of a Collegium sat in judgment over a 
scheme that sought to replace it- Held: Not tenable- Held 
(per Khehar, J.): There is no doubt about the fact, that I have 
0 
been a member of the 1 +4 collegium, and it is likely that I 
would also shortly become a Member of the NJAC, if the 
present challenge raised by the petitioners was not to 
succeed - I would therefore remain a part of the selection 
procedure, irrespective of the process which prevails- That 
E however is the position with reference to four of the instant 
five-Judge Bench - Besides me, my colleagues on the 
Bench- J. Chelameswar, Madan B. Lokur and Kurian Joseph, 
JJ. would in due course be a part of the collegium (if the writ-
petitioners were to succeed), or alternatively, would be a part 
F of
the NJAC (if the writ-petitioners were to fail) - In such 
eventuality, the averment of conflict of interest, ought to have 
been raised not only against me, but also against my three 
colleagues - But, that was not the manner in which the issue 
has been canvassed- The prayer for my recusal is thus not 
G well founded- If I were to accede to the prayer for my recusal, 
I would be initiating a wrong practice, and laying down a wrong 
precedent - A Judge may recuse at his own, from a case 
entrusted to him by the Chief Justice - That would be a matter 
H
SUPREME COURT ADVOCATES-ON-RECORD 
55 
ASSOCIATION v. U.0.1. 
of his own choosing- But recusal atthe asking of a litigating A 
party, unless justified, must never to be acceded to - For 
that would give the impression, of the Judge had been scared 
out of the case, just by the force of the objection -A Judge 
before he assumes his office, takes an oath.to discharge his 
duties without fear or favour- He would breach his oath of B 
office, if he accepts a prayer for recusal, unless justified - It 
is my duty to discharge my responsibility with absolute 
earnestness and sincerity- It is my duty to abide by my oath 
of office, to uphold the Constitution and the laws - My 
decision to continue to be a part of the Bench, flows from the C 
oath which I took, at the time of my elevation to this Court -
Held (per Chelameswar, J.) (for himself and Goel, J.): It is 
one of the settled principles of a civilised legal system that a 
Judge is required to be impartial - It is said that the hallmark D 
of a democracy is the existence of an impartial Judge - From 
earlier decisions, the following principles emerge; (1) If a 
Judge has a financial interest in the outcome of a case, he is 
automatically disqualified from hearing the case; (2) In cases 
where the interest of the Judge in the case is other than E 
financial, then the disqualification is not automatic but an 
enquiry is required whether the existence of such an interest 
disqualifies the Judge tested in the light of either on
the 
principle of "real danger" or "reasonable apprehension" of 
bias; and (3) The Pinochet case added a new category i.e 
F 
that the Judge is automatically disqualified from hearing a 
case where the Judge is interested in a cause which is being 
promoted by one of the parties to the case - It is nobody's 
case that, in the case at hand, Justice Khehar had any 
pecuniary interest or any other interest falling under the 
G 
second of the above-mentioned categories - By the very 
nature of the case, no such interest can arise at all- Insofar 
as the principle of law laid down in Pinochet case is concerned, 
all the parties to these proceedings claim to be promoting 
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56 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
the cause of ensuring the existence of an impartial and 
independent judiciary -
The only difference of opinion 
between the parties is regarding the process by which such a 
result is to be achieved - Therefore, it cannot be said that 
Justice Khehar shares any interest which any one of the 
B parties to the proceeding is seeking to promote -
The 
implication of submission made by the petitioners is that 
Justice Khehar would be pre-determined to hold the 
impugned legislation to be invalid - One fails to understand 
the stand of the petitioners - If such apprehension of the 
C petitioners comes true, the beneficiaries would be the 
petitioners only- The grievance, if any, on this ground should 
be on the part of the respondents - Only a party who has 
suffered or likely to suffer an adverse adjudication because 
0 
of the possibility of bias on the part of the adjudicator can 
raise the objection - The significant power as described by 
the petitioners does not inhere only to the members of the 
Collegium, but inheres in every Judge of the Supreme Court 
who might be called upon to express his opinion regarding 
E the proposals of various appointments of the High Court 
Judges, Chief Justices or Judges of Supreme Court- While 
the members of the Collegium are required to exercise such 
"significant power" with respect to each and every 
appointment of the above-mentioned categories, the other 
F Judges of the Supreme Court
are required to exercise such 
"significant power'', at least with respect to the appointments 
to or from the High Court with which they were earlier 
associated with either as judges or Chief Justices -
The 
argument of the petitioners, if accepted would render all the 
G Judges of this Court disqualified from hearing the present 
controversy-A result not legally permitted by the "doctrine 
of necessity" - For the above-mentioned reasons, the 
submission that Justice Khehar should recuse from the 
proceedings is liable to be rejected - Held (per Kurian, J.): 
H
SUPREME COURT ADVOCATES-ON-RECORD 
57 
ASSOCIATION v. U.0.1. 
There is no situation warranting recusal of Justice Khehar in 
A 
this case - However, it is appropriate also to deal with the 
other side of the coin, whether a Judge should state reasons 
for his recusal in a particular case- Being an institution whose 
hallmark is transparency, it is only proper that the Judge 
discharging high and noble duties, at least broadly indicate 
B 
the reasons for recusing from the case so that the litigants or 
the well-meaning public may not entertain any 
misunderstanding that the recusa/ was for a/together 
irrelevant reasons like the cases being very old, involving 
detailed consideration, decision on several questions of law, 
C 
a situation where the Judge is not happy with the roster, a 
Judge getting unduly sensitive about the public perception 
of his image, Judge wanting not to cause displeasure to 
· anybody, Judge always wanting not to decide any sensitive D 
or contro_versial issues, etc. - Once reasons for recusa/ are 
indicated, there will not be any room for attributing any motive 
for the recusal - This would help to curb the tendency for 
forum shopping - Impartiality of a Judge is the sine qua non 
for the integrity institution- Transparency in procedure is one E 
of the major factors constituting the integrity of the office of a 
Judge in conducting his duties and the functioning of the court 
- The litigants would always like to know though they may 
not have a
prescribed right to know, as to why a Judge has 
recused from hearing the case or despite request, has not F 
recused to hear his case - Reasons are required to be 
indicated broadly- Of course, in case the disclosure of the 
reasons is likely to affect prejudicially any case or cause or 
interest of someone else, the Judge is free to state that on 
account of personal reasons which the Judge does not want G 
to disclose, he has decided to recuse himself from hearing 
the case- Held (per Lokur, J.): When an application is made 
for the recusal of a judge ftom hearing a case, the application 
is made to the concerned judge and not to the Bench as a 
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58 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
whole - Therefore, Justice Khehar is absolutely correct in 
stating that the decision is entirely his - As far as the view 
expressed by Justice Kurian Joseph that reasons.should be 
given while deciding an application for recusal, I would prefer 
not to join that decision - In the first place, giving or not giving 
B reasons was not an issue herein- That reasons are presently 
being given is a different matter a/together- Secondly, the 
giving of reasons is fraught with some difficulties - The issue 
of recusal from hearing a case is not as simple as it appears 
- The questions thrown up are quite significant and since it 
C appears that such applications are gaining frequency, it is 
time that some procedural and substantive rules are framed 
in· this regard - If appropriate rules are framed, then, in a 
given case, it would avoid embarrassment to other judges 
0 
on the Bench - Judiciary- Higher Judiciary- Constitutional 
Courts-Appointment and transfer of Judges. 
Judiciary- Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Primacy of the 
judiciary- Earlier decisions of Supreme Court in First Judges 
E case, Second Judges case and Third Judges case - In the 
First Judges case (S.P. Gupta v. Union of India), the function 
of appointment of Judges to the higher judiciary, was 
described as an executive function, and it was held by a 
seven-Judge Bench per majority, that the ultimate power of 
F
appointment, unquestionably rested with the President- The 
judgment was overruled in the Second Judges case 
(Supreme Court Advocates-on-Record Association v. Union 
of India), wherein it was held by a nine-Judge Bench that 
primacy with reference to the ultimate power of appointment 
G (or transfer) vested with the judiciary - Exposition of law 
declared in the Second Judges case, was reaffirmed by a 
nine-Judge Bench in the Third Judges case (In Re: Special 
Reference No. 1 of 1998) - The Union of India, then framed 
a Memorandum of Procedure on 30.6.1999, for the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
59 
ASSOCIATION v. U.0.1. 
appointment of Judges and Chief Justices to the High Courts A 
and the Supreme Court, in consonance with the Second 
Judges case and Third Judges case - And appointments 
came to be made thereafter, in consonance with the 
Memorandum of Procedure -
New scheme now 
contemplated under the ambit of the National Judicial B 
Appointments Commission set up under the aegis of the 
Constitution (Ninety-ninth Amendment) Act, 2014 read with 
National Judicial Appointments Commission Act, 2014- But 
constitutional validity of these two enactments directly 
challenged in the instant proceedings- Petitioners inter alia C 
relied on the judgment in the Second Judges case, and the 
judgment in the Third Judges case whereas Respondents, 
inter alia relied on the judgment rendered in the First Judges 
case, and sought reconsideration of the decisions rendered D 
in the Second and Third Judges cases- Prayer for reference 
to a larger Bench, and for reconsideration of the Second and 
Third Judges cases - Held (per order of the Court): Not 
tenable - Held (per Khehar, J.): The power of review was 
exercised and stood expended when the First Judges case E 
was reviewed by a larger Bench in the Second Judges case 
-And for sure, it was wholly unjustified for the Union of India, 
which had conceded during the course of hearing of the Third 
Judges case, that it had accepted as binding, the decision 
rendered in the Second Judges case,
to try and re-agitate 
F 
the matter all over again - The matter having been revisited, 
and the position having been conceded by the Union of India, 
it does not lie in the mouth of the Union of India, to seek 
reconsideration of the judicial declaration, in the Second and 
Third Judges cases - Further, there is a complete comity of G 
purpose between the judiciary and the political-executive in 
the matter of selection and appointment of High Court Judges 
- And between them, there is clear transparency also - As 
views are exchanged in writing, views and counter-views, are 
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60 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
. A 
in black and white - It is not possible to accept, that in the 
procedure contemplated under the Second and Third Judges 
cases, Judges at their own select Judges to the higher 
judiciary, or that, the system of lmperium in lmperio has been 
created for appointment of Judges to the higher judiciary -
B 
Viewed closely, the judgments in the Second and Third 
Judges cases, were rendered in a manner as would give 
complete effect to the observations made by Dr. B.R. 
Ambedkar with reference to Article 124 (as originally 
incorporated) - It is cleady erroneous for the respondents to 
C contend, that the consultative process postulated between 
the President with the other Judges of the Supreme Court or 
the High Courts in the States, at the discretion of the President, 
had been done away with by the Second and Third Judges 
0 
cases - Nothing of the sort- It has been, and is still open to 
the President, in his unfettered wisdom, to the consultation 
indicated in Article 124 - Additionally, it is open to the 
President, to rely on the same, during the course of the 
mandatory "consultation" with the Chief Justice of India - The 
E above, further demonstrates the executive role in the 
selection of Judges to the higher judiciary- Historically also, 
all the three wings of governance, have uniformally 
maintained, that while making appointments of Judges to the 
higher judiciary, "independence of the judiciary" was accepted 
F as
an integral component of the spirit of the Constitution, and 
thereby, the term "consultation" used in the provisions under 
consideration, had to be understood as vesting primacy with 
the judiciary, with reference to the subjects contemplated 
under Articles 124, 217 and 222 - In view of the above 
G historical exposition, there is really no legitimate reason for 
the respondents to seek a review of the judgments in the 
Second and Third Judges cases - Also the framers of the 
Constitution while drafting Article 50 of the Constitution, were 
clear and unanimous in their view, that there need to be a 
H
SUPREME COURT ADVOCATES-ON-RECORD 
61 
ASSOCIATION v. U.0.1. 
judiciary, separated from the influences of the executiv.e -
A 
Supreme Court on a harmonious construction of the 
provisions of the Constitution, in the Second and Third 
Judges cases, rightfully held, that primacy in the above matter, 
vested with the judiciary, leading to the inference, that the 
term "consultation" in the provisions under reference, should B 
be understood as giving primacy to the view-expressed by 
the judiciary, through the Chief Justice of India - Further, the 
Supreme Court, through a five-Judge Bench, in Sisir Kanta 
Satapathy case, has held, that recommendations made by 
the High Court in the consultative process envisaged under C 
Article 233, is binding on the Governor - In the face of the 
aforestated binding precedent, on a controversy, which is 
startlingly similar to the one in hand, and has never been 
questioned, it is quite ununderstandab/e how the Union of D 
India, desires to persuade this Court, to now examine the 
term "consultation" differently with reference to Articles 124 
and 217, without assailing the meaning given to the aforesaid 
term, with reference to a matter also governing the judiciary 
- Held (per Lokur, J.): At least since 1935, if not earlier, the E 
appointment of judges was made in accordance with the view 
of the Chief Justice of India or the Chief Justice of the High 
Court as the case may be - But even in those cases where 
there were aberrations
pre-1959 (with the Chief Justice of the 
High Court having been by-passed) the concurrence of the F 
Chief Justice of India was taken - The executive, therefore, 
never had real primacy in the matter of appointment of judges 
- The Constitution postulates a consultative and participatory 
process between the constitutional functionaries for 
appointing the 'best' possible person as a judge of a High G 
Court or the Supreme Court - In this consultative process 
the final word is given, by a constitutional convention and 
practice developed over the years, to the Chief Justice of 
India since that constitutional functionary is best equippe.d 
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62 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
to .appreciate the requirements of effective justice delivery, 
to maintain the independence of the judiciary, to keep at bay . 
external influences, 'eliminate political influence even at the 
stage of initial appointment of a Judge' and as the head of 
the judiciary, his/her judgment ought to be trusted in this 
B regard - Dr. Ambedkar was of the confirmed view that the 
judiciary should be independent and impartial and ifthe Chief 
Justice of India does not have the final say in the matter then 
the judiciary is, in a sense, under some other authority and' 
therefore not independent to that extent- The constitutional 
C convention, the constitutional scheme and the constitutional 
practice recognize the responsibility of the judiciary in the 
appointment of judges and this was merely formalized in the 
Second Judges case- The theory of the separation of powers 
0 
or the distribution of powers was maintained by the Second 
Judges case rather than thrown overboard- The Constitution 
enjoins 
upon 
its 
branches 
'separateness but 
interdependence, autonomy but reciprocity' and the Second 
Judges case has effectively maintained this equilibrium 
E between the judiciary and the political executive, keeping the 
independence of the judiciary in mind, including the 
appointment of judges- Taking all these factors and the CAD 
into account, all of which were discussed in the Second 
Judges case it is difficult to accept the
contention that the 
F Second Judges case requires reconsideration on merits -
The Second Judges case was accepted by the Attorney-
General as mentioned in the Third Judges case and also by 
the President who did not raise any question about the 
interpretation given to Article 124(2) and Article 217(1) of the 
G Constitution -
These constitutional authorities having 
accepted the law laid down in the Second Judges case, there 
is no reason to reconsider that decision -
There are no 
exceptional circumstances, clear and compelling reasons 
for reconsideration, nor can it be said that the Second Judges 
H
SUPREME COURT ADVOCATES-ON-RECORD 
63 
ASSOCIATION v. U.0.1. 
case was plainly erroneous or that it has a baneful effect on A 
the public - On the contrary, the decision restored the 
independem;e of the judiciary in real terms and eliminated 
the baneful effect of executive controls - Also, it was 
categorically laid down in Samsher Singh case that the last 
word in matters pertaining to judiciary should be with the Chief B 
Justice of India - Samsher Singh case was decided by a 
Bench of seven judges and no one has said that that decision 
requires reconsideration or that it does not lay down the 
correct law- The Second Judges case merely reiterates the 
'last word' view in a limited sense- The Second Judges case C 
has been correctly decided and the conventions and the 
principles laid down therein flow from our constitutional history 
and these.do not need any reconsideration -
The only 
question now is whether the 991h Constitution Amendment 
Act violates the basic structure of the Constitution and to D 
decide this question it is not necessary to reconsider the 
Second Judges case or the Third Judges case - This is apart 
from the fact that reconsideration is not warranted at law, even 
on merits - Held (Kurian, J.): Once the Supreme Court has E 
addressed an issue on a substantial question of law as to 
\ 
the structure of the Constitution and has laid down the law, a 
request for revisit shall not be welcomed unless it is shown 
that the structural interpretation is
palpably erroneous- None 
before this Bench could blur the graphic picture on the 
F 
scheme of appointment of Judges and its solid structural 
base in the Constitution portrayed in the Second Judges 
Case - Held (per Goel, J.): The settled principle is that court 
should not, except when it is demonstrated beyond all 
reasonable doubts that its previous ruling given after due G 
deliberation and full hearing was erroneous, revisit earlier 
decisions so that the law remains certain - In exceptional 
circumstances or under new set of conditions in the light of 
new ideas, earlier view, if considered mistaken, can be 
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64 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
reversed - While march of law continues and new systems 
can be developed whenever needed, it can be done only if 
earlier systems are considered unworkable - No such 
situation has arisen - On settled principles, no case for 
revisiting earlier decisions by larger Benches is made out -
B As regards the contention that there was patent error in the 
earlier decisions, the Second Judges' case shows that the 
Constituent Assembly Debates were exhaustively quoted and 
considered - Neither the debates nor the text adopted by 
the Constitution show that the power of appointment of Judges 
C 
was intended to be conferred on the Executive or the 
Legislature - The practice and convention ever since the 
commencement of the Constitution showed that proposal for 
appointment was always initiated by the Judiciary and the 
last word on the subject belonged to the CJ/ - This scheme 
D was consistent with the intention of the Constitution makers 
-
The Judicial <:;ommissions in other countries and 
provisions of Constitutions of other countries conferring power 
on the Executive to appoint Judges may also not call for 
E reconsideration of the Second Judges' case as many of such 
and similar provisions were duly considered in the Second 
Judges' case - No case thus made out for revisiting the 
earlier decisions in Second and Third Judges' cases - Held 
(Chelameswar, J.) (Minority opinion): This nation has 
F witnessed many unpleasant events
connected with judicial 
appointments -
events which lend credence to the 
speculation 
that 
the 
system 
established 
by 
the Second and Third Judges cases in its operational reality 
is perhaps not the best system for securing an independent 
G and efficient judiciary -
There are conflicting opinions 
regarding the jurisprudential soundness of the judgment of 
Second Judges case - It is not necessary to examine that 
aspect of the matter for the purpose of determining the present 
controversy. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
In the judgment of Khehar. J.: 
S.P. Gupta v. Union oflndia 1981 (Supp) SCC 87 
: 1982 SCR 365; Supreme CourtAdvocates-on-
Record Association v. Union of India (1993) 4 
sec 441 : 1993 (2) Suppl. scR 659; Re: 
Special Reference No.1 of 1998 (1998) 7 SCC 
739 : 1998 (2) Suppl. SCR 400; Subhash 
Sharma v. Union oflndia1991 Supp (1) SCC 574: 
1990 (2) Suppl. SCR 433; Supreme Court in 
Union of India v. Sankalchand Himatlal Sheth 
(1977) 4 sec 193: 1978 (1) SCR 423; T.M.A. 
Pai Foundation v. State of Karnataka (2002) 8 
SCC 481 : 2002 (3) Suppl. SCR 587; Re: Special 
Reference No. 1 of 2002 (2002) 8 SCC 237 : 2002 
(3) Suppl. SCR 366; S.R. Chaudhuri v. State of 
Punjab (2001) 7 SCC 126 : 2001 (1) Suppl. 
SCR 621; Indra Sawhney v. Union of India 1992 
Supp (3) sec 211: 1992 (2) Suppl. SCR 454; 
Kesavananda Bharati v. State of Kera/a (1973) 4 
SCC 225 : 1973 (0) Suppl. SCR 1; Samsher 
Singh v. State of Punjab (197 4) 2 SCC 831 : 1975 
(1) SCR 814; Manoj Narula v. Union of India 
(2014) 9 SCC 1; Bhim Singh v. Union of India 
(2010) 5 SCC 538: 2010 (6) SCR 218; State of 
U.P. v. Jeet s. Bisht (2007) 6 sec 586 : 2001 (7) 
SCR 705; Suraz India Trust v. Union of India 
(2012) 13 sec 497: 2011 (4) SCR 224; Jindal 
Stainless Limited v. State of Haryana (2010) 4 
SCC 595: 2010 (4) SCR 743; Re: Cauvery Water 
Disputes Tribunal 1993 Supp (1) SCC 96: 1991 
(2) Suppl. SCR 497; Kera/a State Science and 
Technology Museum v. Rambal Co.
(2006) 6 
SCC 258 : 2006 (4) Suppl. SCR 243; Bengal 
Immunity Co. Ltd. v. State of Bihar (1955) 6 SCR 
603; Magan/al Chhaganlal (P) Ltd. v. Municipal 
Corpn. of Greater Bombay (1974) 2 SCC 402: 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
1975 (1) SCR 1; Union of India v. Raghubir Singh 
(1989) 2 SCC 754: 1989 (3) SCR 316; Pradeep 
Kumar Biswas v. Indian Institute of Chemical 
Biology (2002) 5 sec 111 : 2002 (3) SCR 100; 
Mineral Area Development Authority v. Steel 
Authority of India (2011) 4 SCC 450 : 2011 (4) 
SCR 19; State of West Bengal v. Kesoram 
Industries Ltd. (2004) 10 SCC 201 : 2004 (1) 
SCR 564; India Cement Ltd. v. State of Tamil 
Nadu (1990) 1 SCC 12 : 1989 (1) Suppl. SCR 
692; ·Sub-Committee of Judicial Accountability 
v. Union of India (1992) 4 SCC 97; State of 
Bombay v. United Motors (India) Ltd. (1953) SCR 
1069; Keshav Mills Co. Ltd. v. Commissioner of 
Income-tax, Bombay North (1965) 2 SCR 908; 
Lt. Col. Khajoor Singh v. Union oflndia (1961) 2 
SCR 828; Ganga Sugar Corporation Ltd. v. State 
of Uttar Pradesh (1980) 1 SCC 223 : 1980 (1) 
SCR 769; Gannon Dunkerley and Co. v. State of. 
Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl. 
SCR 103; Registrar(Admn.), High Court of Prissa, 
Cuttack v. Sisir Kanta Satapathy (1999) 7 SCC 
725 : 1999 (2) Suppl. SCR 473; Minerva Mills 
Ltd. v. Union of/ndia (1980) 3 SCC 625: 1981 (1) 
SCR 206; Kihoto Hollohan v. Zachil/hu 1992 
Supp (2) SCC 651 : 1992 (1) SCR 686; Madras 
Bar Association v. Union of/ndia (2014) 10 SCC 
1: M. Nagaraj v. Union of India (2006) 8 SCC 212: 
2006 (7) Suppl. SCR 336; Sardari Lal v. Union 
of India AIR 1971 SC 1547 : 1971 (3) SCR 461; 
Union of India v. R.
Gandhi (2010) 11 SCC 1 : 
2010 (6) SCR 857; Shreya Singhal v. Union of 
India (2015) 4 SCALE 1; State of Madras v. V. G. 
Row (1952) SCR 597; I. C. Golak Nath v. State of 
Punjab AIR (1967) SC 1643 : 1967 SCR 762; 
Scindia Bahadur v. Union of India (1971) 1 SCC 
85 : 1971 (3) SCR 9; Centre for Public Interest
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
~ 
Litigation v. Union of India (2012) 3 SCC 1 : 2012 
(3) SCR 147; Manohar Lal Sharma v. Principal 
Secretary{2014) 2 SCC 532; Shashikant Laxman 
Kale v. Union of/ndia (1990) 4 SCC 366 : 1990 
(3) SCR 441; Re: the Special Courts Bill, 1978 
(1979) 1 SCC 380; Subramanian Swamy v. 
Director, Central Bureau of Investigation (2014) 8 
SCC 682: 2014 (6) SCR 873; Dr. Kashinath G 
Jalmi v. The Speaker AIR 1993 SC 1873; A.K. 
Roy v. Union of India (1982) 1 SCC 271: 1982 
(2) SCR 272; Charanjit Lal Chowdhury v. Union 
oflndia Ram AIR (1951) SC 41 : 1950 SCR 869; 
Krishna Dalmia v. Justice S.R. Tendolkar AIR 
(1958) SC 538: 1959 SCR 279; B. Banerjee v. 
Anita Pan (1975) 1SCC166: 1975 (2) SCR 774; 
Government of Andhra Pradesh v. P. Laxmi Devi 
(2008) 4 sec 120 : 2008 (3) SCR 330; Mohd. 
HanifQuareshiv. State of BiharAIR 1958 SC 731: 
1959 SCR 629; State of West Bengal v. Anwar Ali 
Sarkar1952 SCR 284; Indira Nehru Gandhi v. Raj 
Narain (1975) Supp SCC 1 : 1976 SCR 347; 
Waman Rao v. Union of India (1981) 2 SCC 362 
: 1981 (2) SCR 1; Asif Hameed v. State of Jammu 
and Kashmir1989 Supp (2) SCC 364: 1989 (3) 
SCR 19 ; State of Bihar v. Bihar DisW/ery Limited 
(1997) 2 sec 453 : 1996 (9) suppl. scR 479; 
Bangalore Woollen, Cotton and Silk Mills Co. Ltd. 
v. Corporation of the City of Bangalore (1961) 3 
SCR 707; Khadim Hussain v. State of U.P. (1976) 
1 SCC 843 : 1976 (3) SCR 1; B.K. Srinivasan v. 
State of Karnataka (1987) 1 SCC
658: 1987 (1) 
SCR 1054; People's Union for Civil Liberties v. 
Union of India (2005) 5 SCC 363; In re: Hindu 
Women's Rights to Property Act, 1937 AIR 1941 
FC 72; Pandit M.S.M. Sharma v. Dr. Shree 
Krishna Sinha 1961 (1) SCR 96; R. C. Poudyal v. 
Union of India 1994 Supp (1) SCC 324 : 1993 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
(1) SCR 891; Property Owners' Association v. 
State of Maharashtra (1996) 4 SCC 49 : 1996 (2) 
Suppl. SCR 230; Property Owners' Association v. 
State of Maharashtra (2001) 4 SCC 455; Property 
Owners'Association v. State of Maharashtra (2013) 
7 SCC 522; State of Maharashtra v. Central 
Provinces Manganese Ore Co. Ltd. (1977) 1 SCC 
643: 1977 (1) SCR 1002; India Tobacco Co. Ltd. 
v. Commercial Tax Officer, Bhavanipore (1975) 3 
SCC 512 : 1975 (2) SCR 612; Ko/hapur 
Canesugar Works Ltd. v. Union of India (2000) 2 
sec 536 : 2000 (1) SCR 518; State of U.P. v. 
Hirendra Pal Singh (2011) 5 SCC 305: 2010 (15) 
SCR 854; Joint Action Committee of Air Line 
Pilots' Association of India v. Director Gen.era/ of 
Civil Aviation (2011) 5 SCC 435 : 2011 (5) 
SCR 1019; State of Tamil Nadu v. K. Shyam 
Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094; 
Municipal Committee, Amritsar v. State of Punjab 
(1969) 1 sec 475 : 1969 (3) SCR 447; K.A 
Abbas v. Union of India (1970) 2 SCC 780 : 1971 
(2) SCR 446; T.N. Seshan v. Union oflndia (1995) 
4 sec 611 : 1995 (2) Suppl. scR 106; t.R. 
Coelho v. State of Tamil Nadu (2007) 2 SCC 1 : 
2007 (1) SCR 706; Lily Thomas v. Union of India; 
(2013) 1 sec 653: 2013 (10) SCR 1130; Chief 
Election Commissioner v. Jan Chaukidar (2013) 
7 SCC 507; State of Karnataka v. Union of India 
(1977) 4 SCC 608 : 1978 (2) SCR 1; Ku/dip Nayar 
v. Union of India (2006) 7 SCC 1 : 2006 (5) 
Suppl. SCR 1;
Ashoka Kumar Thakur v. Union 
of India (2008) 6 SCC 1 : 2008 (4) SCR 1; Public 
Services Tribunal Bar Association v. State of U.P. 
(2003) 4 sec 104 : 2003 (1) SCR 666; Uttar 
Pradesh Power Corporation Limited v. Rajesh 
Kumar(2012) 7SCC1: 2012 (4) SCR 118; State 
of Bihar v. Bal Mukund Sah (2000) 4 SCC 640:
SUPREME COURT ADVOCAJES-ON-RECORD 
. 
ASSOCIATION v .. U.0.1. 
2000 (2) SCR 299; Nawal Kishore Mishra v. High 
Court of Judicature of Allahabad (2015) 5 SCC 
479 : 2015 (3) SCR 107; West U.P. Sugar Mills 
Association v. State of U.P. (2002) 2 SCC 645: 
2002 (1) SCR 897; Gammon India Ltd. v. Special ,· 
Chief Secretary (2006) 3 SCC 354: 2006 (2) 
SCR 304 - referred to. 
Ameer-un-Nissa Begum v. Mahboob Begum AIR 
1955 SC 352; Firm A. T.B. Mehtab Majid & Co. v. 
State of Madras AIR 1963 SC 928 : 1963 Suppl. 
SCR 435; B.N. Tewari v. Union of India AIR 1965 
SC 1430 : 1965 SCR 421; Koteswar Vittal 
Karnath v. K. Rangappa Baliga & Co. (1969) 1 
SCC 255: 1969 (3) SCR 40; Mulchand Odhavji 
v. Rajkot Borough Municipality (1971) 3 SCC 53; 
Mohd. Shaukat Hussain Khan v. State of Andhra 
Pradesh (1974) 2 SCC 376: 1975 (1) SCR 429; 
Indian Express Newspapers (Bombay) Pvt. Ltd. 
v. Union of India (1985) 1 SCC 641 : 1985 (2) 
SCR 287; Bhagat Ram Sharma v. Union of India 
1988 (Supp) sec 30 : 1988 SCR 1034; and 
State of Rajasthan v. Mangilal Pindwal (1996) 5 
sec 60 : 1996 (3) Suppl. SCR 98 - held 
inapplicable. 
Speech by Sardar Vallabhbhai Patel on 
15.7.1947; "Constitutional Law of India", 41h 
edition, by H.M. Seervai; Fourteenth Report of 
the Law Commission on Judicial Reform 
(1958); The Beijing Statement of Principles of 
the "Independence of the Judiciary"; Speech 
of Dr. B.R. Ambedkar (in the Constituent Assembly 
on 24.5.1949); "Roses in December - An 
Autobiography" by M.C.
Chagla; "Neither Roses 
Nor Thorns" by H.R. Khanna; "Constitutional 
Law of India -A Critical Commentary' by H.M. 
Seervai; Articles titled "Making the Angels 
69 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Weep", and "Where Angels Fear to Tread" by 
Lord Cooke of Thorndon; "Story of a Chief 
Justice", by U.L. Bhat; 5th V.M. Tarkunde 
Memorial Lecture by Ruma Pal, J., on the topic 
"An Independent Judiciary"; "The Other Side of 
Justice" by S.S. Sodhi; "Before Memory Fades" 
by Fali S. Nariman; Article bearing the title 
"Structure Matters: The Impact of Court 
Structure on the Indian and U.S. Supreme 
Courts", by Nick Robinson; Article - "The Bases 
of Power and the Power/Interaction Model of 
Interpersonal Influence" by Bertram Raven, 
Analyses of Social Issues and Public Policy, Vol. 
8, No.1, 2008, pp. 1-22; Article - "Effects of a 
Favour and Liking on Compliance" by Dennis 
T. Regan, Cornell University; "Influence: The 
Psychology of Persuasion" - Robert Cialdini, 
Regent's Professor Emeritus of Psychology and 
Marketing, Arizona State University; Article titled 
"Loyalty, Gratitude, and the Federal Judiciary", 
by Laura E. Little, Associate Professor of Law, 
Temple University School of Law; Paper on 
"Guarding the Guardians: Judicial Councils 
and Judicial Independence" by Nuno Garoupa 
and Tom Ginsburg, Law School, University of 
Chicago, November 2008; and Southerland's 
Statutory Construction, 3rd Edition, Volume I -
referred to. 
In the order of Chelameswar. J.: 
Supreme Court Advocates-on-Record Association 
& Ors. v. Union of India, (1993) 4 SCC 441; and 
P.O. Dinakaran(1) v. Judges Inquiry
Committee, 
(2011) 8 sec 380 - referred to. 
Dimes v. Proprietors of Grand Junction Canal, 
(1852) 10 ER 301; Regina v. Gough (1993) AC 
646; Regina v. Bow Street Metropolitan 
Stipendiary Magistrate, Ex parte Pinochet Ugarte,
SUPREME COURT ADVOCATES-ON-RECORD 
71 
ASSOCIATION v. U.0.1: 
(1999) 1 All E.R. 577; Wakefield Local Board of 
A 
Health v. WestRiding and Grimsby Rly Co. (1865) 
1 Q.B. 84; R V. Byles exp. Hollidge (1912) 77 
J.P. 40; R. v. Nailsworth Licensing Justices exp. 
Bird [1953) 1 W.L.R. 1046; R v. Lilydale 
Magistrates Court exp. Ciccone [1973) V.R. 122; 
B 
R. v. Antrim Justices [1895) 21.R. 603; To/putt (H.) 
& Co. Ltd. v. Mole [1911) 1K.B.836; and Corrigan 
v. Irish Land Commission [1977] l.R. 317 -
referred to. 
R. Grant Hammond, Judicial Recusal: Principles, 
c 
Process and Problems, (Hart Publishing, 2009) 
- referred to. 
In the judgment of Chelameswar. J.: 
His 
Holiness 
Kesavananda 
Bharati 
Sripadagalvaru v. State of Kera/a & Another 
(1973) 4 sec 225 : 1973 (0) Suppl. SCR 1; S.P. 
Gupta v. Union of India & Ors. AIR 1982 SC 149: 
1982 SCR 365; L. C. Chandra Kumar and Ors. v. 
Union of India and Ors. (1997) 3 SCC 261 : 1997 
(2) SCR 1186; Supreme Court Advocates-on-
Record Association & Others v. Union of India 
(1993) 4. sec 441 : 1993 (2) Suppl. SCR 
659; Union of India H. Sankalchand Himatlal 
Sheth &Anr. (1977) 4sec193: 1978 (1) SCR 
423; Chandramouleshwar Prasad v. Patna High 
Court and Ors. (1969) 3 SCC 56 : 1970 (2) 
SCR 666; Samsher Singh v. State of Punjab Al R 
1974 SC 2192 : 1975 (1) SCR 814; Subhash 
Sharma v. Union oflndia (1991) Supp.1SCC574 
: 1990 (2) Suppl. SCR 433 ; Special Reference 
No.1 of 1998 (1998) 7 SCC 739 : 1998 (2) Suppl. 
SCR 400; Shanti
Bhushan & Another v. Union 
of India & Another (2009) 1 SCC 657 : 2008 (17) 
SCR 791; PD. Dinakaran (1) v. Judges Inquiry 
D 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
Committee (2011) 8 SCC 380 : 2011 (10) 
SCR 1064; P.O. Dinakaran (2) v. Judges Inquiry 
Committee & Another (2011) 8 SCC 474; L 
Chandra Kumar v. Union of India & Ors. (1997) 3 
SCC 261 : 1997 (2) SCR 1186; l.C. Golak Nath 
and Ors. v. State of Punjab and Anr. (1967) 2 SCR 
762; Minerva Mills Ltd. & Ors. v. Union of India & 
Ors. (1980) 3 SCC 625; Waman Rao & Ors. etc. 
etc. v. Union of India & Ors. (1981) 2 SCC 362; 
Indira Nehru Gandhi v. Raj Narain (1975) Supp 
sec 1; S.R. Bommai v. Union of India (1994) 3 
sec 1; M. Nagaraj & Others v. Union of India & 
Others (2006) 8 SCC 212; l.R. Coelho (Dead) By 
LRs v. State of T.N. (2007) 2 SCC 1; A.K. Gopalan 
v. State of Madras AIR 1950 SC 27; ADM Jabalpur 
v. S.S. Shukla Etc.Etc. AIR 1976 SC 1207; 
Naresh Shridhar Mirajkar & Ors. v. State of 
Maharashtra & Anr. AIR 1967 SC 1; Barium 
Chemicals Ltd. v. Company Law Board AIR 1967 
SC 295 - referred to. 
Marbury v. Madison 5 U.S 137 (1803); Valente v. 
Queen {Supreme Court of Canada] (1985) 2 SCR 
673; Regina v. Bow Street Metropolitan 
Stipendiary Magistrate, Ex parte Pinochet Ugarte 
(1999) 1 Al.I E.R. 577 - referred to. 
Sir William Blackstone's, Commentaries on the 
Laws of England, (1765) Vol. I p. 269; Fali S. 
Nariman, Before Memory Fades: An 
Autobiography, [First Edition Hay House (2010 ), 
p.348 ]; Constituent Assembly Debates, 24th . 
May 1949 (Vol. Vlll);Abhinav Chandrachud, The 
Informal Constitution :
Unwritten Criteria in 
Selecting Judges for the Supreme Court of 
India, (Oxford University Press, United Kingdom 
2014) See Pages 113 to 120; Iyer, V.R. Krishna, 
Judiciary: A reform agenda-II, The Hindu (on line 
edition) 15.08.2002; "An Independent Judiciary"
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
- speech delivered by Ms. Justice Ruma Pal 
atthe 5th V.M. Tarkunde Memorial Lecture on 101h 
November 2011; Mehta, Pratap Bhanu, 'Whom do 
you trust', The Indian Express, May 14, 2015; 
The National Commission to Review the 
Working of the Constitution (NCRWC), 2002 
chaired by Justice M.N. Venkatachaliah; Fali S. 
Nariman, Before Memory Fades -
An 
Autobiography, p. 389; Laurence H. Tribe, God 
Save this Honorable Court, First Edition, p.10-
11; Laurence H. Tribe (American Constitutional 
Law) Second Edition - referred to. 
In the order and judgment of Lokur. J.: 
Court on its own motion v. State & Others MANU/ 
DE/9073/2007; Supreme Court Advocates on 
Record Association v. Union of India (1993) 4 SCC 
441 : 1993 (2) Suppl. SCR 659; S.P. Gupta v. 
Union of India 1981 (Supp) SCC 87 : 1982 
SCR 365; Subhash Sharma v. Union of India. 
1991 Supp (1) sec 574: 1990 (2) Suppl. SCR . 
433; Special Reference No. 1 of 1998 (1998) 7 
SCC 739: 1998 (2) Suppl. SCR 400; Union of 
·India v. Sanka/chand Himmatlal Sheth (1977) 4 
SCC 1993; R. Pushpam v. State of Madras AIR 
1953 Mad 392; Sardari Lal v. Union of India (1971) 
1 SCC 411: Jyoti Prakash Mitter v. Chief Justice, 
Calcutta [1965] 2 SCR 53; Union of India v. Jyoti 
ProkashMitter(1971)1 SCC396: 1971 (3) SCR 
483; RamJawaya Kapurv. State of Punjab [1955) 
2 SCR 225; Kesavananda Bharati v. State of 
Kera/a (1973) 4 SCC 225: 1973 (0) Suppl. SCR 
1; Indira Nehru Gandhi v. Raj
Narain 1975 Supp 
SCC 1 : 1976 SCR 347; Minerva Mills Ltd. v. 
Union of India (1980) 3 SCC 625 : 1981 (1) 
SCR 206; l.R. Coelho v. State of Tamil Nadu 
(2007) 2sec1 : 2001 (1) SCR 706; Bhim Singh 
. 73 
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v. Union of India (2010) 5 SCC 538 : 2010 (6) 
· SCR 218; State of Tamil Nadu v. State of Kera/a 
(2014) 12 SCC 696; Mul/aperiyar Environmental 
Protection Forum v. Union of India (2006) 3 SCC 
643: 2006 (2) SCR 740; Administrator-Genera/ 
of Bengal v. Prem Lal Mullick (1894-95) 22 I.A. 
107; A.K. Gopalan v. State of Madras 1950 SCR 
88; State of Travancore-Cochin v. The Bombay 
Co. Ltd. 1952 SCR 1112; Golak Nath v. State of 
Punjab (1967) 2 SCR 762; Union of India v. H.S. 
Dhillon (1972) 2 SCR 331; Indra Sawhney v. 
Union of India 1992 Supp (3) SCC 217: 1992 (2) 
Suppl. SCR 454; S.R. Chaudhuri v. State of 
Punjab (2001) 7 SCC .126 : 2001 (1) Suppl. 
SCR 621; Manoj Narula v. Union of India (2014) 
9 sec 1 : 2014 (9) SCR 965; 
T.M.A. Pai 
Foundation v. State of Karnataka (2002) 8 SCC 
481: 
2002 (3) Suppl. SCR 587; Bengal 
Immunity Co. Ltd. v. StateofBihar& Ors. AIR 1955 
SC 661 : 1955 SCR 603; State of Bombay v. 
The United Motors (India) Ltd. (1953) 4 SCR 
. 1069; Lt. Col. Khajoor Singh v. Union of India AIR 
1961 SC 532 : 1961 SCR 828; Keshav Mills v. 
CIT AIR 1965 SC 1636 : 1965 SCR 908; New 
Jehangir Vakil Mills Ltd. v. CIT (1960) 1 SCR 249; 
Magan/al Chhaganlal v. Municipal Corporation of 
Greater Bombay (1974) 2 SCC 402 : 1975 (1) 
SCR 1; Northern India Caterers v. State of Punjab. 
AIR 1967 SC 1581 : 1967 SCR 399; Pet/ad 
Turkey Red Dye Works Co. Ltd., Pet/ad v. CIT 
(1963) Supp 1 SCR 871; Ganga Sugar
Corporation v. State of Uttar Pradesh (1980) 1 
SCC 223 : 1980 (1) SCR 769; Union of India v. 
Raghubir Singh (1989) 2 SCC 754 : 1989 (3) 
SCR 316; Gannon Dunkerley & Co. v. State of 
Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl. 
SCR 103; Builders' Association of India v. Union
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
of India. (1989) 2 sec 645: 1989 (2) SCR 320; 
Khajoor Singh, Keshav Mills Pradeep Kumar 
Biswas v. Indian Institute of Chemical Biology 
(2002) 5 sec 111 : 2002 (3) SCR 100; Sabhajit 
Tewary v. Union of India (1975) 1 SCC 485; K . . 
Kamalajammanniavaru v. 
Special Land 
Acquisition Officer (1985) 1 SCC 582 : 1985 (2) 
SCR 914; Bhag Singh v. Union Territory of 
Chandigarh (1985) 3 SCC 737: 1985 (2) Suppl. 
SCR 949; R.C. Poudyal v. Union of India 1994 
Supp (1) sec 324 : 1993 (1) SCR 891; Sub-
·committee on Judicial Accountability v. Union of 
India (1991) 4 SCC 699; Kartar Singh v. State of 
Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; 
Krishna Swami v. Union of India (1992) 4-SCC 
605 : 1992 (1) Suppl. SCR 53; Union of India v. 
Madras Bar Association (2010) 11SCC1: 2010 
(6) SCR 857; State of Rajasthan v. Union of India 
(1977) 3 sec 592 : 1978 (1) SCR 1; State of 
Karnataka v. Union of India (1977) 4 SCC 608: 
1978 (2) SCR 1; Ku/dip Nayar v. Union of India 
(1996) 1 sec 1 : 1995 (6) Suppl. SCR 11; 
Ashoka Kumar Thakur v. Union of India (2008) 6 
SCC 1 : 2008 (4) SCR 1; Madras Bar Association 
. v. Union of India (2014) 10 SCC 1; Minerva Miffs 
v. Union of India (1980) 3 SCC 625 : 1981 (1) 
SCR 2()6; Minerva Mills in Sanjeev Coke 
Manufacturing Co. v. Bharat Coking Coal Ltd. 
(1983) 1 sec 147 : 1983 (1) SCR 1000; M. 
Nagaraj v. Union of India (2006) 8 SCC 212 : 2006 
(7) Suppl. SCR 336; Bhim Singhji v. Union of
India (1981) 1SCC166; Charanjit Lal Chowdhuri 
v. Union of India [1950] SCR 869; Ram Krishna 
Dalmia v. Justice S.R. Tendolkar [1959] SCR 
. 279; R.K. Garg v. Union of India (1981) 4 SCC 
675: 1982 (1) SCR 947; Shri Prithvi Cotton Mills 
Ltd. v. Broach Borough tytunicipality (1969) 2 SCC 
75 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
283 : 1970 (1) SCR 388; K. Sankaran Nair v. 
Devaki Amma Malathy Amma (1996) 11 SCC 428 
: 1996 (6) Suppl. SCR 839; Bhubaneshwar Singh 
v. Union of India (1994) 6 SCC 77 : 1994 (1) 
Suppl. SCR 639; Re Cauvery Water Disputes 
Tribunal (1993) Supp (1) SCC 96 : 1991 (2) 
Suppl. SCR 497; Indian Aluminium Co. v. State 
of Kera/a (1996) 7 SCC 637 : 1996 (2) SCR 
23; AK. Gopalan v. The State of Madras [1950] 1 
SCR 88; Ja/an Trading Company (P) Ltd v. Mill 
Mazdoor Sabha Union [1967] 1 SCR 15; 
Karnataka Bank Ltd. v. State of Andhra Pradesh 
(2008) 2 sec 254 : 2008 (1) SCR 986; Mohd. 
Hanif Quareshi v. State of Bihar [1959] SCR 629; 
State of West Bengal v. Anwar Ali Sarkar {1952] 
SCR 284; State of AP. v. McDowell & Co. (1996) 
3 SCC 709: 1996 (3) SCR 721; Public Services 
Tribunal Bar Assn v. State of U.P. (2003) 4 SCC 
104: 2003 (1) SCR 666; Chhotabhai Jethabhai 
Patel v. Union of India. 1962 Supp (2) SCR 1.; 
Kihoto Ho/Johan v. Zachillhu 1992 Supp (2) SCC 
651 : 1992 (1) SCR 686; D.K. Trivedi & Sons v. 
State of Gujarat 1986 Supp SCC 20 : 1986 SCR 
479; Mafatlal Industries Ltd. v. Union of India 
(1997) 5 sec 536 : 1996 (1 O) Suppl. SCR 585; 
Babula/ Parate v. State of Bombay [1960] (1) SCR 
605; Raja Ram Pal v. Lok Sabha (2007.) 3 SCC 
184: 2007 (1) SCR 317; AK. Roy v. Union of 
India (1982) 1 sec 211: 1982 (2) SCR 272; 
Centre for PIL v. Union of India (2011) 4 SCC 1: 
2011 (4) SCR 445; Registrar General,
High Court 
of Madras v. R. Gandhi (2014) 11SCC547: 2014 
(4) SCR 77; Indira Nehru Gandhi and Minerva 
Mills. (2007) 2 SCC 1; Kumar Padma Prasad v. 
Union of India (1992) 2 SCC 428; Renu v. District 
Judge (2014) 14 SCC 50; Indian Express 
Newspapers v. Union of India (1985) 1 SCC 641;
SUPREME COURT ADVOCATES-ON-RECORD 
77 
ASSOCIATION v. U.0.1. 
State of U.P. v. Raj Narain (1975) 4 SCC 428: 
1975 (3) SCR 333; Reliance Petrochemicals Ltd. 
v. Proprietors of Indian Express Newspapers 
Bombay (P) Ltd. (1988) 4 sec 592: 1988 (3) 
Suppl. SCR 212; West U.P. Sugar Mills Assn. v. 
State of U.P. (2002) 2 SCC 645: 2002 (1) SCR 
897; B.N. Tewari v. Union of India AIR 1965 SC 
1430: 1965 SCR 421; Firm A. T.B. Mehtab Majid 
& Co. v. State of Madras AIR 1963 SC 928 : 1963 
Suppl. SCR 435; Indian Express Newspapers 
(Born) (P) Ltd. v. Union of India (1985) 1 SCC 641: 
1985 (2) SCR 287; State of TN. v. K. Shyam 
Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094 
- referred to. 
United Mine Workers of America 325 US 897 
(1945); Hanrahan v. Hampton 446 US 1301 
(1980); Al-Jehad Trust v. Federation of Pakistan 
PLO 1996 SC 324; Black Clawson International 
Ltd. v. Papierwerke Waldhof-Aschaffenburg 
Aktiengesel/schaft [1975] AC 591; The State v. 
T Makwanyane 1995 (3) SA 391 (CC); Attorney-
General for N. S. W. v. The Perpetual Trustee Co. 
Ltd. 85 CLR 237; The Queen v. Beauregard. 
[1986] 2 SCR 56; Marbury v. Madison: 5 U.S. (1 
Cranch) 137; Re: Powers, Privileges and 
Immunities of State Legislatures [1965] 1 SCR 
413; The Pocket Veto case 279 U.S. 655, 689 
(1929); Compare Missouri Pac. Ry. Co. v. Kansas 
248 U.S. 276; Myers v. United States 272 U.S. 
52; State v. South Norwalk 77 Conn. 257; 
Youngstown Sheet & Tube Co. v. Sawyer343 U.S. 
579, 635 (1952); Anderson v. Gorrie
[1895] 1 Q.B. 
668; McC (A Minor), Re [1985] A.C. 528; Lochner 
v. New York 198 US 45; Ferguson v. Skrupa 372 
US 726; Middleton v. Texas Power and Light Co. 
249 US 152, 157; Abrams v. United States 250 
· US 616 (1919); The Queen v. Beauregard [1986] 
A 
B 
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D 
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E. 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
2 SCR 56; Attorney General v. Times Newspapers 
Ltd. 1973 3 All ER 54 - referred to. 
Sapru Committee Report, 1945, Chapter V, 
Paragraphs 259, 261 and 268, https:// 
archive.org/stream/ 
saprucommittee035520mbp/saprucommittee 
035520 mbp djvu.txt; B. Shiva Rao: 'The 
Framing of India's Constitution' Select 
Documents, Volume II & Volume IV; Indian 
Constitution - Cornerstone of a Nation by 
Granville Austin at page 126, footnote 39; .bttl2if 
pa rliamentofi ndia. nic. in/ls/debates.htm; 
Lecture on Judicial Independence, Lord 
Phillips; 141h, 801h and 121•1 Report of the Law 
Commission 
of 
India; 
.!:ill.J2.;J/ 
www.tnsja.tn.nic.in/article/Judicial%20 
Independence %20JSVJ.pdf; Granville Austin: 
Working a Democratic Constitution page131; 
· http:UdoLqov.in/sites/ 
default/files 
I 
memohc.pdf; http://doj.qov.in/sites/default/ 
files/memosc.pdf; Article titled "Merit" in the 
Appointment of Judges' by By Professor M.P. 
Singh, (1999) 8 SCC (Jour) 1; Supreme But Not 
Infallible, Essays in Honour of the Supreme Court 
of India page 48, 53; A Grammar of Politics 
(Works of Harold J. Laski), 297; Willoughby on 
the Constitution of the United States, page 64; 
"Learning and Science", speech at Harvard Law 
School Association (June 25, 1895); Speeches by 
Oliver Wendell Holmes (1896). p. 67-68; Judicial 
Independence and the Rule of Law by Jonathan 
K. Van Patten, Volume2 Benchmark page 117, 129 
(1986) ; Lee
Epstein, Jack Knight & Olga 
Shvetsova, Comparing Judicial Selection 
S'ystems, 10 WM & MARY BILL RTS J. 7, n.9 
(2001 ); Judicial Independence, Transitional 
Justice and the Rule of Law by David
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 
345-346; The Frontline, Volume 25 Issue 20 · 
September 27, 2008 to October 10, 2008; btta;1I 
www.judiciary.senate.gov/imo/media/doc/ 
kennedy testimony 02 14 07.pdf; Report 
entitled 'Judicial Independence: Law and 
Practice of Appointments to the European 
Court 
of 
Human 
Rights', 
http:// 
www.interights.org/documenV142/index.html: 
The Beijing Statement of Principles of the 
Independence of the Judiciary in the LAWASIA 
Region as amended at Manila on 28th August, 
1997; 3rd lecture on 'Judicial Appointments' 
delivered on 4th December, 2012 of the 54th series 
of Hamlyn Lectures titled 'Aspects of Law Reform 
- An Insider's Perspective'; Appointing 
Australian Judges: A New Model by Simon 
Evans and John Williams, [2008] Sydney Law 
Review Volume 30 page 295; 
hlli!~// 
sydney.edu.au{law/slr/slr30 2/Evans.pdf; 
http://www.sabar.co.za/I aw-jou rn a I s/2010/ 
december/201 O-december-vol023-no3-pp43-
48.pdf; http://www.lawsociety.orq.bw/news/ 
Position%20Paper%20on%20Appointment%2 
Oof'/o20Judges%20Final%2014%20june%202012%2 
O'Final' .pdf; Carly Van Orman, Introduction to 
the Symposium: The Judicial Process 
Appointments Process, 10 Wm. & Mary Bill Rts. 
J. 1 (2001 ), http://scholarship.law.wm.edu/ 
wmborj/vol10/iss1/2; 'The Appointment and 
Removal of Judges' by Sir Anthony Mason AC 
· KBE, formerly Chief Justice of Australia; .!J1!nJ1 
www. j udcom. nsw~gov.a u/pu
bl ications/ 
education-monographs-1 /monograph1 I 
fbmason.htm; Shimon Shetreet, Judges on Trial 
(North-Holland Publishing Company, Amsterdam, 
(1976), p 46; Akkas, Sarkar Ali (2004) 
79 
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SUPREME COURT REPORTS 
[2015] 13 S. C.R. 
"Appointment of Judges: A Key Issue of 
Judicial Independence," Bond Law Review: 
Vol. 
16: 
lss. 
2, 
Article 
8; 
b.!iQJJ 
epublications.bond.edu.au/blr/vol16/iss2/8 -
referred to. 
In the order of Kurian. J.: 
S. Parthasarathi v. State of A.P (1974) 3 SCC 
459: 1974 (1) SCR 697 - referred to. 
R v. Sussex Justices Ex parte Mc-earthy (1923) 
All ER Rep. 233; Public Utilities Commission of 
District of Columbia et al. v. Pollak et al. 343 U.S. 
451 (1952); The President of the Republic of 
South Africa etc. v. South African Rugby Football 
Union etc.1999 (4) SA 147- referred to. 
In the judgment of Kurian. J.: 
His 
Holiness 
Kesavananda 
Bharati 
Sripadagalvaru v. State of Kera/a and another 
(1973) 4 sec 225 : 1973 (O) Suppl. scR 1; 
Samsher Singh v. State of Punjab and another 
(1974) 2 SCC 831 :1975 (1) SCR 814-referred to. 
State v. Arizona Independent Redistricting 
Commission Manu/USSC/0060/2015- referred 
to. 
In the judgment of Goel. J.: 
Special Reference No.1 of 1998 (1998) 7 SCC 
739 : 1998 (2) Suppl. SCR 400; SCAORA v. 
Union of India (1993) 4 SCC 441: 1993 (2) Suppl. 
SCR 659; Property Owners'Association v. State 
of Maharashtra (1996) 4 SCC 49 : 1996 (2) 
Suppl. SCR 230; Kesavananda Bharti v. State 
of Kera/a 1973 (4) SCC 225 : 1973 (0) Suppl. 
SCR 1; Indira Nehru Gandhi v. Raj Narain (1975) 
Supp. SCC 1 : 1976 SCR 347; Minerva Mills Ltd. 
vs. Union of India (1980) 3 SCC 625 : 1981 (1) 
SCR
206; L. Chandra Kumar v. Union of India,
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. 
"(1997) 3 sec 261 : 1997 (2) scR 1186; 1.R. 
Coelho vs. State of Tamil Nadu (2007) 2 SCC 1: 
2006 (10) Suppl. SCR 197; M. Nagaraj v. Union 
of India (2006) 8 sec 212 : 2001 (9) SCR 259; 
S.P Gupta v. Union of India 1981 Supp. SCC 87 
: 1982 SCR 365; Subhash Sharma v. Union of 
India 1991 Supp (1) SCC 574: 1990 (2) Suppl. 
SCR 433; Union of India v. Sankalchand Himatlal 
Sheth 1977 (4) sec 193 : 1978 (1) scR 423; 
Shamsher Singh v. State of Punjab 197 4 (2) SCC 
831: 1975 (1) SCR 814: Centre for Public Interest 
Litigation v. UOI (2012) 3 SCC 1: 2012 (3) SCR 
147; ManoharLal Sharma v. UOI (2014) 2 SCC 
532; S.R. Bommai v. UO/ (1994) 3 SCC 1 : 1994 
(2) SCR 644; Rameshwar Prasad v. UOI (2006) 
2 sec 1 : 2006 (1) SCR 562; M.C. Mehta v. 
Kamal Nath (1997) 1SCC388: 1996 (10) Suppl. 
SCR 12; Kihoto Hol/ohan v. Zachilfhu (1992) 
Supp. (2) 651 : 1992 (1) SCR 686; Sahara India 
Real Estate Corpn. Ltd. v. SEB/ (2012) 10 SC 603: 
2012 (12) SCR 256; Chandra MoulishwarPrasad 
v. Patna High Court 1969 (3) SCC 56 : 1970 (2) 
SCR 666; Manoj Narula v. Union of India 2014 
(9) SCC 1 : 2014 (9) SCR 965; Shri Prithvi Cotton 
Mills Ltd. v. Broach Borough Municipality (1969) 
2 sec 283 : 1970 (1) SCR 388; Bhim Singh Ji 
vs. Union of India (19B1) 1 SCC 166; Ashoka 
Kumar Thakur vs. Union of India (2008) 6 SCC 1 
: 2008 (4) SCR 1; Mafat Lal Industries Ltd. vs. 
Union of India (1997) 5 SCC 536 : . 1996 (10) 
Suppl. SCR 585; lnderpreet Singh
Kah/on v. 
State of Punjab (2006) 11 SCC 356 : 2006 (1) 
Suppl. SCR 772: Maneka Gandhi v. UOI (1978) 
1 sec 248 : 1978 (2) SCR 621; v. G. Row v. 
State of Madras (1952) SCR 597; Madhav Rao 
Jivaji Rao Scindia v. U0/ 1971 (1) SCC 85 : 1971 
(3) SCR 9; Rustom Cavasjee Cooper v. Union of 
81 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
India (1970) 1 SCC 248; Bennett Coleman & Co. 
Ltd. vs. Union of India 1972 (2) SCC 788: 1973 
(2) SCR 757; S.R. Bommai v. UOI (1994) 3 sec 
1 : 1994 (2) SCR 644; P. Sambamurthy v. State 
of A.P (1994) 3 sec 1 : 1994 (2) SCR 644; 
Amrik Singh Lyalpuri v. UOI (2011) 6 SCC 535: 
2011 (5) SCR 560; Union of India v. Madras Bar 
Asson. (2010) 11 SCC 1 : 2010 (6) SCR 857; 
Madras Bar Asson. v. UOI (2014) 10 SCC 1: 
Special Reference No.1(1965)1 SCC 413; Lily 
Thomas v. Union of India 2013 (7) SCC 653 : 2013 
(10) SCR 1130; Chief Election Commissioner v. 
Jan Chaukidar 2013 (7) SCC 507 - referred to. 
Seervai, 41h Edition, Constitutional Law of India; 
141h and 121•1 Report of the Law Commission; 
Report dated 26.9.2001 as included in Vol. II of the 
Report of the NCRWC, 2002, Paras 9.6 and 9. 7 
- referred to. · 
Case Law Reference 
In the judgment of Khehar, J.: 
£Thfl, Reff!.rfl,nCfl. ordf:.C.I 
1982 SCR 365 
referred to 
Para 2 
1993 (2) Suppl. SCR 659 
referred to 
Para 2 
1998 (2) Suppl. SCR 400 
referred to Para2 
1990 (2) Suppl. SCR 433 
referred to Para 11 
1978 (1) SCR 423 
referred to 
Para 16(iii) 
2002 (3) Suppl. SCR 587 
referred to 
Para 26 
2002 (3) Suppl. SCR 366 
referred to Para 26 
2001 (1) Suppl. SCR 621 
referred to 
Para 26 
1992 (2) Suppl. SCR 454 
referred to Para 26 
1973 (0) Suppl. SCR 1 
referred to 
Para 26 
1975 (1) SCR 814 
referred to 
Para 26 
(2014) 9 sec 1 
referred to 
Para 26
2010 (6) SCR 218 
referred to 
Para 33

SUPREME COURT ADVOCATES-ON-RECORD . 
83 
ASSOCIATION v. U.0.1. 
. 2007 (7) SCR 705 
referred to 
Para 33 
A 
2011 (4) SCR 224 
referred to 
Para 36 
2010 (4) SCR 743 
referred to 
Para 38 
1991 (2) Suppl. SCR 497 
referred to 
Para 45 
2006 (4) Suppl. SCR 243 
referred to 
Para 47 
(1955) 6 SCR 603 
referred to 
Para 49 
B 
1975 (1) SCR 1 
referred to 
Para 49 
1989 (3) SCR 316 
referred to Para 49 
2002 (3) SCR 100 
referred to 
Para 49 
2011(4) SCR19 
referred to 
Para 51 
c 
2004 (1) SCR 564 
referred to 
Para 51 
1989 (1) Suppl. SCR 692 
referred to 
Para 51 
(1992) 4 sec 97 
referred to 
Para 51 
(1953) SCR 1069 
referred to 
Para 52 
(1965) 2 SCR 908 
referred to 
Para 52 
D 
(1961) 2 SCR 828 
referred to 
Para 58 
1980 (1) SCR 769 
referred to 
Para 58 
1992 (3) Suppl. SCR 103 
referred to 
Para 58 
1999 (2) Suppl. SCR 473 
referred to 
Para 100 
(The Qrr!.,er Qn m!l_rit§.l 
E 
1981 (1) SCR 206 
referred to 
Para 5 
1992(1) SCR 686 
referred to 
Para 5 
(2014) 10 sec 1 
referred to Para 11. 
2006 (7) Suppl. SCR 336 
referred to 
Para 15 
F 
1971 (3) SCR 461 
referred to 
Para 26 
2010 (6) SCR 857 
referred to 
Para 37 
(2015) 4 SCALE 1 
referred to 
Para 40 
(1952) SCR 597 
referred to 
Para 43 
1967 SCR 762 
referred to 
Para 44 
G 
1971 (3) SCR 9 
referred to 
Para 45 
2012 (3) SCR 147 
referred to 
Para 46 
(2014) 2 sec 532 
referred to 
Para 46 
1990 (3) SCR 441 
referred to 
Para 47 
H
84 
: SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A (1979) 1 sec 380 
referred to 
Para 47 
2014 (6) SCR 873 
referred to 
Para 47 
AIR 1993 SC 1873 
referred to 
Para 54 
1982 (2) SCR 272 
referred to· Para 58 
B 1950 SCR 869 
referred to 
Para 71 
1959 SCR £19 
referred to 
Para 71 
1975 (2) SCR 774 
referred to 
Para 71 
2008 (3) SCR 330 
referred to 
Para 71 
1959 SCR 629 
referred to 
Para 72 
c 1952 SCR 284 
referred to 
Para 72 
1976 SCR 347 
referred to 
Para 78 
1981 (2) SCR 1 
referred to 
Para 78 
1989 (3) SCR 19 
referred to 
Para 81 
D 1996 (9) Suppl. SCR 479 
referred to Para 81 
(1961) 3 SCR 707 
referred to Para 99 
1976 (3) SCR 1 
referred to Para 99 
1987 (1) SCR 1054 
referred to 
Para 99 
E (2005) 5 sec 363 
referred to 
Para 99 
1961 (1) SCR 96 
referred to ·Para 102 
1993 (1) SCR 891 
referred to 
Para 105 
1996 (2) Suppl. SCR 230 
referred to 
Para 107 
(2001) 4 sec 455 
referred to Para 107 
F (2013) 1 sec 5?2 
referred to 
Para 107 
AIR 1955 SC 352 
held inapplicable Para 108 
1963 Suppl. SCR 435 
held inapplicable Para 108 
1965 SCR 421 
held inapplicable Para 108 
G 1969 (3) SCR 40 
held inapplicable Para 108 
(1971) 3 sec 53 
held inapplicable . Para 108 
1975 (1) SC_R 429 
held inapplicable Para 108 
1977 (1) SCR 1002 
referred to 
Para 108 
H 1975 (2) SCR 612 
referred to 
Para 108
. SUPREME COURT ADVOCATES-ON-RECORD 
85 
ASSOCIATION v. U.0.1. 
2000 (1) SCR 518 
referred to Para 108 
A 
2010 (15) SCR 854 
referred to 
Para 108 
2011 (5) SCR 1019 
• referred to 
Para 108 
2011 (11) SCR 1094 
referred to 
Para 108 
1969 (3) SCR 447 
referred to 
Para 121 
B 
1971 (2) SCR 446 
referred to Para 121 
1995 (2) Suppl. SCR 106 
referred to 
Para 122 
2007 (1) SCR 706 
referred to 
Para 130 
(2013) 1 sec 507 
referred to 
Para 138 
2013 (10) SCR 1130 
referred to 
Para 138 
c 
1978 (2) SCR 1 
referred to Para 215 
2006 (5) Suppl. SCR 1 
referred to 
Para 215 
2008 (4) SCR 1 
referred to Para 215 
2003 (1) SCR 666 
referred to 
Para 216 
D 
2012 (4) SCR 118 
referred to 
Para 217 
2000 (2) SCR 299 
referred to 
Para 218 
2015 (3) SCR 107 
referred to 
Para 218 
1985 (2) SCR 287 
held inapplicable Para 250(vii) E 
1988 SCR 1034 
held inapplicable Para 250(viii) 
1996 (3) Suppl. SCR 98 
held inapplicable Para 250(ix) 
2002 (1) SCR 897 
referred to 
Para 250 (xi) 
2006 (2) SCR 304 
referred to 
Para 250(xi) 
In the Qrder of Chelameswar, J.: 
F 
(1993) 4 sec 441 
referred to 
Para 2 
(2011) 8 sec 380 
referred to 
Para 25 
In the judgment of Chelameswar, J,: 
1973 (0) Suppl. SCR 1 referred to 
Para 11 
G 
1982 SCR 365 
referred to 
Para 14 
1997 (2) SCR 1186 
referred to 
Para 28 
1993 (2) Suppl. SCR 659 referred to 
Para 39 
1978 (1) SCR 423 
referred to 
Para 40 
H
86 
SUPREME COURT REPORTS 
[2015113S.C.R. 
A 1970 (2) SCR 666 
referred to 
Para 42 
1975 (1) SCR 814 
referred to 
Para42 
1990 (2) Suppl. SCR 433 referred to 
Para 45 
1998 (2) Suppl. SCR 400 referred to 
Para 56 
B 2008 (17) SCR 791 
referred to 
Para 59 
2011 (10) SCR 1064 
referred to 
Para 59 
(2011) 8 sec 474 
referred to 
Para 59 
1997 (2) SCR 1186 
referred to 
Para 64 
(1980) 3 sec 625 
referred to 
Para 72 
c 
(1981) 2 sec 362 
referred to 
Para 73 
(1975) Supp sec 1 
referred to 
Para 73 
(1994) 3 sec 1 
referred to 
Para 79 
(2006) 8 sec 212 
referred to 
Para 80 
D (2001) 2 sec 1 
referred to 
Para 81 
AIR 1976 SC 1207 
referred to 
Para 103 
AIR 1967SC1 
referred to 
Para 106 
AIR 1967 SC 295 
referred to 
Para 111 
E In the jyggm!ilw Qf LQkyr, J,: 
1996 SC 324 
referred to 
Para 7 
1993 (2) Suppl. SCR 659 referred to 
Para 51 
1982 SCR 365 
referred to 
Para 55 
1990 (2) Suppl. SCR 433 referred to 
Para 55 
F 1998 (2) Suppl. SCR 400 referred to 
Para 103 
(1977) 4 sec 1993 
referred to 
Para 105 
(1971) 1sec411 
referred to 
Para 139 
[1965] 2 SCR 53 
referred to 
Para 142 
G 1971 (3) SCR 483 
referred to 
Para 142 
[1955] 2 SCR 225 
referred to 
Para 195 
1973 (0) Suppl. SCR 1 
referred to 
Para 196 
1976 SCR 347 
referred to 
Para 197 
H 1981 (1) SCR 206 
referred to 
Para 200
SUPREME COURT ADVOCATES-ON-RECORD 
87 
ASSOCIATION v. U.0.1. 
2007 (1) SCR 706 
referred to 
Para 202 
A 
2010 (6) SCR 218 
referred to 
Para 203 
(2014) 12 sec 696 
referred to 
Para 204 
2006 (2) SCR 740 
referred to 
Para 204 
1950 SCR 88 
referred to 
Para 208 
B 
1952 SCR 1112 
referred to 
Para 213 
(1967) 2 SCR 762 
referred to 
Para 214 
(1972) 2 SCR 331 
referred to 
Para 220 
1992 (2) Suppl. SCR 454 referred to 
Para 228 
2001 (1) Suppl. SCR 621 referred to 
Para 229 
c 
2014 (9) SCR 965 
referred to 
Para 229 
2002 (3) Suppl. SCR 587 referred to 
Para 230 
1955 SCR 603 
referred to 
Para 243 
(1953) 4 SCR 1069 
referred to 
Para 243 
D 
1961 SCR 828 
referred to 
Para 249 
1965 SCR 908 
referred to 
Para 250 
(1960) 1 SCR 249 
referred to 
Para 250 
(1963) Supp 1 SCR 871 
referred to 
Para 250 
E 
1975 (1)· SCR 1 
referred to 
Para 251 
1967 SCR 399 
referred to 
Para 251 
1980 (1) SCR 769 
referred to 
Para 252 
.1989 (3) SCR 316 
referred to 
Para 253 
1992 (3) Suppl. SCR 103 referred to 
Para 256 
F 
1989 (2) SCR 320 
referred to 
Para 256 
2002 (3) SCR 100 
referred to 
Para 257 
(1975) 1sec485 
referred to 
Para 257 
1985 (2) SCR 914 
referred to 
Para 263 
G 
1985 (2) Suppl. SCR 949 referred to 
Para 263 
[1986] 2 SCR 56 
referred to 
Para 263 
1993 (1) SCR 891 
referred to 
Para 264 
[1965] 1SCR413 
referred to 
Para 270 
H
88 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
(1991) 4 sec 699 
referred to 
Para 297 
1994 (2) SCR 375 
referred to 
Para 298 
1992 (1) ·Suppl. SCR 53 referred to 
Para 299 
2010 (6) SCR 857 
referred to 
Para 300 
B 1978 (1) SCR 1 
referred to 
Para 361 
1978 (2) SCR 1 
referred to 
Para 386 
1995 (6) Suppl. SCR 17 referred to 
Para 387 
2008 (4) SCR 1 
referred to 
Para 388 
(2014) 10 sec 1 
referred to 
Para 389 
c 1981 (1.) SCR 206 
, referred to 
Para 397 
1983 (1) SCR 1000 
referred to 
Para 398 
2006 (7) Suppl. SCR 336 referred to 
Para 399 
(1981) 1 sec 166 
referred to 
Para 401 
D [1950] SCR 869 
referred to 
Para 406 
[1959] SCR 279 
referred to 
Para 407 
1982 (1) SCR 947 
referred to 
Para 409 
1970 (1) SCR 388 
referred to 
Para 412 
E 1996 (6) Suppl. SCR 839 referred to 
Para 414 
1994 (1)-Suppl. SCR 639 referred to 
Para 415 
1991 (2) Suppl. SCR 497 referred to 
Para416 
1996 (2) SCR 23 
referred to 
Para 417 
[1950] 1 SCR 88 
referred to 
Para 421 
F [1967] 1SCR15 
referred to 
Para 423 
2008 (1) SCR 986 
referred to 
Para 432 
[1959] SCR 629 
referred to 
Para 439 
[1952] SCR 284 
referred to 
Para 443 
G [1986] 2 SCR 56 
referred to 
Para 449 
1996 (3) SCR 721 
referred to 
Para 453 
2003 (1) SCR 666 
referred to 
Para 454 
1962 Supp (2) SCR 1 
referred to 
Para 455 
H 1992 (1) SCR 686 
referred to 
Para 456
. SUPREME COURT ADVOCATES-ON-RECORD 
89 
ASSOCIATION v. U.0.1. 
1986 SCR 479 
referred to 
Para 458 
A 
1996(10) Suppl. SCR 585 referred to 
Para 459 
1960 (1) SCR 605 
referred to 
Para 461 
2007 (1) SCR 317 
referred to 
Para 462 
1982 (2) SCR 272 
referred to 
Para 497 
B 
2011 (4) SCR 445 
referred to 
Para 500 
2014 (4) SCR 77 
referred to 
Para 502 
1992 (2) SCR 109 
referred to 
Para 544 
2014 (2) SCR 537 
referred to 
Para 551 
1985 (2) SCR 287 
referred to 
Para 552 
c 
1975 (3) SCR 333 
referred to 
Para 553 
1988 (3) Suppl. SCR 212 referred to 
Para 554 
2002 (1) SCR 897 
referred to 
Para 558 
1965 SCR 421 
referred to 
Para 558 
D 
1963 Suppl. SCR 435 
referred to 
Para 558 
1985 (2) SCR 287 
referred to 
Para 558 
2011 (11) SCR 1094 
referred to 
Para 560 
In th~ Qrd~r of Kurian, J.: 
E 
1974 (1) SCR 697 
referred to 
Para8 
In the j!,Ji;!gm~nt Qf K!Jrian, J.: 
1973 (0) Suppl. SCR 1 
referred to 
Para 1 
1975 (1) SCR 814 
referred to 
Para 2 
In the judgment of Goel, J.: 
F 
1998 (2) Suppl. SCR 400 referred to 
Para 3.4 
1993 (2) Suppl. SCR 659 referred to 
Para 3.4 
1996 (2) Suppl. SCR 230 referred to 
Para 10 
1973 (0) Suppl. SCR 1 referred to 
Para 15 
G 
1976 SCR 347 
referred to 
Para 15.4 
1981 (1) SCR 206 · 
referred to 
Para 15.5 
1997 (2) SCR 1186 
referred to 
Para 15.6 
2006 (10) Suppl. SCR 197 referred to 
Para 15.7 
H
90 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 2007 (9) SCR 259 
referred to 
Para 15.8 
1982 SCR 365 
referred to 
Para 16.4 
1990 (2) Suppl. SCR 433 referred to 
Para 16.5 
1978 (1JSCR 423 
referred to 
Para 17 
B 1975 (1) SCR 814 
referred to 
Para 17.2 
2012 (3) SCR 147 
referred to 
Para 18 
(2014) 2 sec 532 
referred to 
Para 18 
1994 (2) SCR 644 
referred to 
Para 18 
2006 (1) SCR 562 
referred to 
Para 18 
c 1996 (10) Suppl. SCR 12 referred to 
Para 18 
1992 (1) SCR 686 
referred to 
Para 18 
2012 (12) SCR 256 
referred to 
Para 18.1 
1970 (2) SCR 666 
referred to 
Para 18.5 
D 1970 (1) SCR 388 
referred to 
Para 18.9 
2014 (9) SCR 965 
referred to 
Para 18.10 
(1981) 1sec166 
referred to 
Para19.1 
2008 (4) SCR 1 
referred to . · 
Para19.1 
E 1996 (10) Suppl.SCR 585 referred to 
Para 19.3 
2006 (1) Suppl. SCR 772 referred to 
Para 19.3 
1978 (2) SCR 621 
referred to 
Para 19.7 
(1952) SCR 597 
referred to 
Para 19.7 
1971 (3) SCR 9 
referred to 
Para 19.7 
F (1970) 1 sec 248 
referred to 
Para 19.7 
1973 (2) SCR 757 
referred to 
Para 19.7 
1994 ( 2) SCR 644 
referred to 
Para 19.14 
2011 (5) SCR 560 
referred to 
Para 19.14 
G 2010 (6) SCR 857 
referred to 
Para 19.14 
(2014) 10 sec 1 
referred to 
Para 19.14 
(1965) 1 sec 413 
referred to 
Para 19.14 
2013 (10) SCR 1130 
referred to 
Para 20.4 
H 2013 (7) sec 507 
referred to 
Para 20.4
SUPREME COURT ADVOCATES-ON-RECORD 
91 
ASSOCIATION v. U.0.1. 
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) A 
No.13of2015. 
Under Article 32 of the Constitution of India. 
WITH 
W. P. (C) Nos. 23, 70, 83, 108, 124, 14, 18, 24, 209, 
B 
309, 310, 323 and 341of2015 and T. P. (C) Nos. 391 and 
971 of 2015. 
Ranjit Kumar, SG, Mukul Rohatgi, AG, P. S. Narasimha, 
ASG, Fali S. Nari man, Prof. Bhim Singh, Anil B. Divan, R. K. c. 
P. Shankar Das, K. N. Bhat, V. Mohana, Ram Jethmalani, K. 
K. Venugopal,T. R. Andhyarujina, Ajit Sinha, Ravindra 
Shrivastava, Dr. Rajeev Dhawan, Sr. Advs., S. S. Shamshery,. 
lrshad Ahmad, Gaurav Bhatia, C. D. Singh, Saurabh Ajay 
Gupta, Suryanarayana Singh, AAGs, Subhash C. Kasyap, 
D 
Pranav Vyas (For Surya Kant), Santosh Paul, Joseph Aristotle 
S., Arvind Gupta, M. B. Elakkumanan, Malay Swapnil, Priya 
Aristotle, Savita Singh, Prashant Bhushan, Prashant Kumar, 
Syed Rehan, Ranvir Singh, Anindita Pujari, Jitendra 
Mahapatra, A. C. Philip, Rabin Majumder, Suman, V. N. 
E 
Subramaniam, Subhasish Bhowmick, S. K. Sinha, Joydeep 
Mukherjee (For Rabin Majumder), Sriram Parakkat, Vishnu 
Shankar Jain (For Ankur S. Kulkarni), Prachi Bajpai, D. L 
Chidananda, Madhvi Divan, Abhinav Mukherji, Binu Tamta, Dr. 
Arghya Sengupta, Ranjeeta Rohatgi, Devanshi Singh, Diksha 
F 
Rai, Ninad Laud, Ajay Sharma, Ritwik Sharma, Samit Khosla, 
Nikhil Rohatgi, Gurmehar S. Sistani (For B. V. Balaram Das), 
Gautam Narayan; Devashish Bharuka, Sandeep Singh, Amit 
Sharma (For
Ms. Ruchi Kohli), H. K. Naik (For Gautam 
Takuldar), Ankur Talwar, Rohit Bhat, Prerna Priyadarshini, G 
Suhasini Sen, Ankit Kr. (For Mishra Saurabh), Nishant 
Kanteshwarkar, Arpit Rai, Anip Sachthey, Saakaar Sardana, 
K. Enatoli Serrya, Edward Belho, Amit Kumar Singh, Abhisth 
Kumar, Abhishek Kumar Singh, Vijay Pratap Yadav, Som Raj 
H
92 
SUPREME COURT REPORT'-_ 
[2015] 13 S.C.R. 
A 
Choudhury, Anitha·Shenoy, V. N. Raghupathy, Tapesh Kumar 
Singh, Mohd. Waquas, Anurag Singh, Aswarya K. Sinha, 
Rachana Srivastava, Shashi Juneja, A. P. Mayee, Ramesh 
Babu M. R., Swati Setia, Sapam Biswajit Meitei, Z. H. Issac 
Haiding, Ashok Kumar Singh, Hemantika Wahi, Vinakshi 
B Kadan, Jagjit Singh Chhabra (For Kuldip Singh), Sibo Sankar 
Mishra, Pragati Neekhra, Indra Pratap Singh, Prakash Kumar 
Singh, Arun Monga, Kudrat S3ndho (For Tushar Bakshi), M. 
Yogesh Kanna, Jayant Patel, Krishna Sarma, Avijit Roy, Navnit 
Kumar, Barnali Das, Deepika (For M/s. Corporate Law 
C 
Group), Guntur Prabhakar, Prerna Singh, Nupur Singhal, 
San jay Visen, Anil Kumar Chopra, Ashok Kumar Thakur, Im ran 
Khan Burni, Advs., for the appearing parties. 
Mathews J. Nedumpara, Manohar Lal Sharma, R. K. 
o Kapoor, Bishwajit Bhattacharyya, Rajiv Daiya, P. M. 
E 
F 
G 
Duraiswamy (Petioner-in-person). 
Ashish Dixit (Respondent-in-person) 
The following Judgments and Orders of the Court were delivered: 
JUDGMENT 
JAGDISH SINGH KHEHAR, J. 
Index* 
Si.No 
Contents 
1 
The Recusal Order 
2. 
The Reference Order 
I 
The Challenae 
II. 
The 
Background to 
tt1e Challenge 
Ill. 
Motion 
by 
tt1e 
respondents 
for tt1e 
review of the Second 
and 
Third 
Judges 
cases. 
Par·agrapl:s 
Pages 
, '8 
1 -
15 
' -
·-. 
1 . 101 
16 - 169 
1 -
9 
16 -
19 
10 - 19 
19 -
61 
20 - 53 
61 - 115 
*Ed. note: The pages mentioned in the index above giving the scheme of
the 
H 
judgment denotes the page number of the original judgment.
SUPREME COURT ADVOCATES-ON-RECORD 
93 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
IV. 
Objection 
by 
the 
54 - 59 
115 - 124 
petitioners, 
to 
the 
Motion for review 
V. 
The Consideration 
60 - 100 
124-168 
VI. 
Conclusion 
101 
168 - 169 
3. 
The Order on Merits 
1 - 258 
170-439 
I. 
Preface 
1 -
4 
170-171 
II. 
Petitioners' 
5 -
66 
171 - 252 
Contentions, 
on 
l'v1e.rits 
Ill 
Respondents' 
67 - 132 
253 -325 
Response on Merits. 
IV. 
The Debate and the 133- 245 
326 - 419 
Deliberation 
v 
The effect of striking 246- 253 
419 - 436 
down the impugned 
constitutional 
amendment 
VI. 
Conclusions 
254- 256 
436-438 
VII. 
Acknowledament 
257 
438 -439 
THE RECUSAL ORDER 
1. In this Court one gets used to writing common orders, 
for orders are written either on behalf of the Bench, or on behalf 
of the Court. Mostly, dissents are written in the first person. 
Even though, this is not an order in the nature of a dissent, yet 
A 
B 
c 
D 
E 
it needs to be written in the first person. While endorsing the 
F 
opinion expressed by J. Chelameswar, J., adjudicating upon 
the prayer for my recusal, from hearing the matters in hand, 
reasons for my continuation on the Bench, also need to be 
expressed by me. Not for advocating any principle of law, but 
for laying down certain principles of conduct. 
G 
2. This order is in the nature of a prelude - a precursor, 
to the determination of the main controversy. It has been 
necessitated, for deciding an objection, about
the present 
composition of the Bench. As already noted above, J. 
H
94 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
Chelameswar, J. has rendered the decision on the objection. 
The events which followed the order of J. Chelameswar, J., 
are also of some significance. In my considered view, they too 
need to be narrated, for only then, the entire matter can be 
considered to have been fully expressed, as it ought to be. I 
B also need to record reasons, why my continuation on the 
reconstituted Bench, was the only course open to me. And 
therefore, my side of its understanding, dealing with the 
perception, of the other side of the Bench. 
c 
3(i) A three-Judge Bench was originally constituted for 
hearing these matters. 
The Bench comprised of 
Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ .. At 
thatjuncture,Anil R. Dave, J. was a part of the 1+2 collegium, 
as also, the 1 +4 collegium. The above combination heard the 
D matter, on its first listing on 11.3.2015. Notice returnable for 
17 .3.2015 was issued on the first date of hearing. 
Simultaneously, hearing in Y. Krishnan v. Union of India and 
others, Writ Petition (MD) No.69 of 2015, pending before the 
High Court of Madras (at its Madurai Bench), wherein the same 
E issues were being considered as the ones raised in the bunch 
. of cases in hand, was stayed till further orders. 
(ii) On the following date, i.e., 17.3.2015 Mr. Fali S. 
Nariman, Senior Advocate, in Supreme CourtAdvocates-on-
F Record Association v. Union of India (Writ Petition (C) No.13 
of2015), Mr.Anil B.
Divan, Senior Advocate, in Bar Association 
of India v. Union of India (Writ Petition (C) No;108 of 2015), 
Mr. Prashant Bhushan, Advocate, in Centre for Public Interest 
Litigation v. Union of India (Writ Petition (C) No.83 of 2015) 
G and Mr. Santosh Paul, Advocate, in Change India v. Union of 
India (Writ Petition (C) No.70 of 2015), representing the 
petitioners were heard. Mr. Mukul Rohatgi, Attorney General 
for India, advanced submissions in response. The matter was 
shown as part-heard, and posted for further hearing on 
H 18.3.2015.
SUPREME COURT ADVOCATES-ON-RECORD 
95 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(iii) The proceedings recorded by this Court on 18.3.2015 A 
reveal, that Mr. Santosh Paul, (in Writ Petition (C) No.70 of 
2015) was heard again on 18.3.2015, whereupon, Mr. Mukul 
Rohatgi and Mr. Ranjit Kumar, Solicitor General of India, also 
made their submissions. Thereafter, Mr. DushyantA. Dave, 
Senior Advocate - and the President of Supreme Court Bar B 
Association, addressed the Bench, as an intervener. 
Whereafter, the Court rose for the day. On 18.3.2015, the matter 
was adjourned for hearing to the following day, i.e., for 
19.3.2015. 
c 
(iv) The order passed on 19.3.2015 reveals, that 
submissions were advanced on that date, by Mr. DushyantA. 
Dave, Mr. Mukul Rohatgi, Mr. T.R. Andhyarujina, Senior 
Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S. 
Nariman was still addressing the Bench, the Court rose for the • D 
day, by recording inter a/ia, "The matters remained Part-
heard." Further hearing in the cases, was deferred to 
24.3.2015. 
(v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. 
Divan, were again heard. Additionally, Mr. Mukul Rohatgi 
E 
concluded his submissions. On the conclusion of hearing, 
judgment was reserved. On 24.3.2015, a separate order was 
also passed in Writ Petition (C) No.124 of 2015 (Mathews J. 
Nedumpara v. Supreme Court of India, through Secretary 
F 
General and others). It read as under: 
'The application filed by Mr. Mathews J.
Nedumpara to 
argue in person before the Court is rejected. The name of 
Mr. Robin Mazumdar, AOR, who was earlier appearing for 
him, be shown in the Cause List.'' 
G 
(vi) On 7.4.2015, the following order came to be passed 
by the three-Judge Bench presided by Anil R. Dave, J.: 
"1. In this group of petitions, validity of the Constitution 
(Ninety-Nimth Amendment) Act, 2014 and the National 
Judicial Appointment Commission Act, 2014 (hereinafter H
96 
A 
B 
c 
D . 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
referred to as 'the Act') has been challenged. The challenge 
is on the ground that by virtue of the aforestated amendment 
and enactment of the Act, basic structure of the Constitution 
of India has been altered and therefore, they should be set 
aside. 
2. We have heard the learned counsel appearing for the 
parties and the parties appearing in-person at length. 
3. It has been mainly submitted for the petitioners that all 
these petitions should be referred to a Bench of Five Judges 
as per the provisions of Article 145(3) of the Constitution of 
India for the reason that substantial questions of law with 
regard to interpretation of the Constitution of India are 
involved in these petitions. It has been further submitted 
that till all these petitions are finally disposed of, by way of 
an interim relief it should be directed that the Act should 
not be brought into force and the present system with regard 
to appointment of Judges should be continued. 
4. Sum and substance of the submissions of the counsel 
opposing the petition is that all these petitions are premature 
for the reason that the Act has not come into force till today 
and till the Act comes into force, cause of action cannot be 
said to have arisen. In the circumstances, according to 
the learned counsel, the petitions should be rejected. 
5. The learned counsel as well as parties in-person have 
relied upon several judgments to
substantiate their cases. 
6. Looking at the facts of the case we are of the view that 
these petitions involve substantial questions of law as to 
the interpretation of the Constitution of India and therefore 
we direct the Registry to place all the matters of this group 
before Hon'ble the Chief Justice of India so that they can 
be placed before a lamer Bench for its consideration. 
7. As we are not deciding the cases on merits, we do not 
think it appropriate to discuss the submissions made by 
the learned counsel and the parties in-person.
SUPREME COURT ADVOCATES-ON-RECORD 
97 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
8. It would be open to the petitioners to make a prayer for A 
interim relief before th.e larger bench as we do not think it 
appropriate to grant any interim relief at this stage." 
4. During the hearing of the cases, Anil R. Dave, J. did 
not participate in any collegium proceedings. 
5. Based on the order passed by the three-Judge Bench 
on 7.4.2015, Hon'ble the Chief Justice of India, constituted a 
five-Judge Bench, comprising of Anil R. Dave, Chelameswar, 
Madan B. Lokur, Kurian Joseph andAdarsh Kumar Goel, JJ. 
B 
6. On 13.4.2015 the Constitution (Ninety-ninth C 
Amendment) Act, 2014, and the National Judicial 
Appointments Commission Act, 2014, were notified in the 
Gazette of India (Extraordinary). Both the above enactments, 
were brought into force with effect from 13.4.2015. Accordingly, 
D 
on 13.4.2015 Anil R. Dave, J. became an ex officio Member 
of the National Judicial Appointments Commission, on account 
of being the second senior most Judge after the Chief Justice 
of India, under the mandate of Article 124A(1 )(b). 
7. When the matter came up for hearing for the first time, 
E 
before the five-Judge Bench on 15.4.2015, it passed the 
following order: 
"List the matters before a Bench of which one of us (Anil 
R. Dave, J.) is not a member." 
It is, therefore, that Hon'ble the Chief Justice of India, 
reconstituted the Bench with myself, J. Chelameswar, Madan 
B. Lokur,
Kurian Joseph and Adarsh Kumar Goel, JJ., to hear 
this group of cases. 
F 
8. When the reconstituted Bench commenced hearing G 
on 21.4.2015, Mr. Fali S. Nariman made a prayer for my 
recusal from the Bench, which was seconded by Mr. Mathews 
J. Nedumpara (petitioner-in-person in Writ Petition (C) No.124 
of 2015), the latter advanced submissions, even though he H
98 
SUPREME COURT REPORTS 
[2015) 13S.C.R. 
A 
had been barred from doing so, by an earlier order dated 
24.3.2015 (extracted above). For me, to preside over the 
Bench seemed to be imprudent, when some of the 
stakeholders desired otherwise. Strong views were however 
expressed by quite a few learned counsel, who opposed the 
B 
prayer. It was submitted, that a prayer for recusal had earlier 
been made, with reference to Anil R. Dave, J. It was pointed 
out, that the above prayer had resulted in his having exercised 
the option to step aside (- on 15.4.2015). Some learned 
counsel went to the extent of asserting, that the recusal of Anil 
C · R. Dave, J. was not only unfair, but was also motivated. It was 
also suggested, that the Bench should be reconstituted, by 
requesting Anil R. Dave, J. to preside over the Bench. The 
above sequence of facts reveals, that the recusal by Anil R. 
D Dave, J. was not at his own, but in deference to a similar prayer 
made to him. Logically, if he had heard these cases when he 
was the presiding Judge of the three-Judge Bench, he would 
have heard it, when the Bench strength was increased, wherein, 
he was still the presiding Judge. 
E 
F 
G 
H 
9(i) Mr. Fali S. Nariman strongly refuted the impression 
sought to be created, that he had ever required Anil R. Dave, 
J. to.recuse. In order to support his assertion, he pointed out, 
that he had made the following request in writing on 15.4.2015: 
"The provisions of the Constitution
(Ninety-Ninth 
Amendment) Act, 2014 and of the National Judicial 
Appointments Commission Act, 2014 have been brought 
into force from April 13, 2015. As a consequence, the 
Presiding Judge on this Bench, the Hon'ble Mr. Justice 
Anil R. Dave, has now become (not out of choice but by 
force of Statute) a member ex officio of the National 
Judicial Appointments Commission, whose 
constitutional validity has been challenged. 
It is respectfully submitted that it would be appropriate 
if it is declared at the outset- by an order of this Hon'ble
SUPREME COURT ADVOCATES-ON-RECORD 
99 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Court- that the Presiding Judge on this Bench will take A 
no part whatever in the proceedings of the National 
Judicial Appointments Commission." 
Learned senior counsel pointed out, that he had merely 
requested the then presiding Judge (Anil R. Dave, J.) not to 
B 
take any part in the proceedings of the National Judicial 
Appointments Commission, during the hearing of these 
matters. He asserted, that he had _never askedAnil R. Dave, 
J. not to hear the matters pending before the Bench. 
(ii) The submission made in writing by Mr. Mathews J. C 
Nedumpara for the recusal of Anil R. Dave, J. was in the 
following words: 
" ..... VI. Though Hon'ble Shri Justice Anil R. Dave, Who 
heads the Three-Judge Bench in the instant case, is a 
Judge revered and respected by the legal fraternity and 
D 
the public at large, a Judge of the highest integrity, ability 
and impartiality, still the doctrine of nemo iudex in sua causa 
or nemo debet esse judex in propria causa - no one can 
be judge in his own cause -would require His Lordship to 
E 
recuse himself even at this stage since in the eye of the 
120 billion ordinary citizens of this country, the instant case 
is all about a law whereunder the exclusive power of 
appointment invested in the Judges case is taken away 
and is invested in the fair body which could lead to 
F 
displeasure of the Judges and, therefore, the Supreme 
Court itself
deciding a case involving the power of 
appointment of Judges of the Supreme Court will not evince 
public credibility. The question then arises is as to who 
could decide it. The doctrine of necessity leaves no other G 
option then the Supreme Court itself deciding the question. 
But in that case, it could be by Judges who are not part of 
the collegium as of today or, if an NJAC is to be constituted 
today, could be a member thereof. With utmost respect, 
Hon'ble Shri Justice Dave is a member of the collegium; 
H
100 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
His Lordship will be a member of the NJAC if it is 
constituted today. Therefore, there is a manifest conflict 
of interest. 
B 
c 
D 
E 
F 
G 
H 
VII. Referendum. In Australia, a Constitutional Amendment 
was brought in, limiting the retirement age of Judges to 70 
years. Instead of the Judges deciding the correctness of 
the said decision, the validity of the amendment was left to 
be decided by a referendum, and 80% of the population 
supported the amendment. Therefore, the only body who 
could decide whether the NJAC as envisaged is acceptable 
or not is the people of this country upon a referendum. 
VIII. The judgment in Judges-2, which made the rewriting 
of the Constitution, is void ab initio. The said case was 
decided without notice to the pubic at large. O,nly the views 
of the government and Advocates on record and a few 
others were heard. In the instant case, the public at large 
ought to be afforded an opportunity to be heard; at least 
the major political parties, and the case should be referred 
to Constitutional Bench. The constitutionality of the Acts 
ought to be decided, brushing aside the feeble, nay, 
apologetical plea of the learned Attorney General that the 
Acts have been brought into force and their validity cannot 
be challenged, and failing to come forward and state in 
candid terms that the Acts are the will of the people, spoken 
through their elected representatives and that too without 
any
division, unanimous. The plea of the Advocates on 
Record Association that the notification bringing into force 
the said Acts be stayed be rejected forthwith; so too its 
demand that the collegium system, which has ceased to 
be in existence, be allowed to be continued and 
appointments to the august office of Judges of High Courts 
and Supreme Gourt on its recommendation, for to do so 
would mean that Judges of the High Courts who are 
currently Chief Justices because they were appointed at a 
young age in preference over others will be appointed as
SUPREME COURT ADVOCATES-ON-RECORD 
101 
ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.] 
Judges of the Supreme Court and if that is allowed to A 
happen, it may lead to a situation where the Supreme Court 
tomorrow will literally be packed with sons and sons-in-
law of former Judges. There are at least three Chief 
Justices of High Courts who are sons of former Judges of 
the Supreme Court. The Petitioner is no privy to any 
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confidential information, not even gossips. Still he believes 
that if the implementation of the NJAC is stayed, three sons 
of former Judges of the Supreme Court could be appointed 
as Judges of the Supreme Court. The Petitioner has 
absolutely nothing personal against any of those Judges; C 
the issue is not at all about any individual. The Petitioner 
readily conc.edes, and it is a pleasure to do so, that few of 
them are highly competent and richly deserving to be 
appointed. 
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IX. Equality before law and equal protection of law in the 
matter of public employment. The office of the Judge of 
the High Court and Supreme Court, though high 
constitutional office, is still in the realm of public 
employment, to which every person eligible ought to be 
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given an opportunity to occupy, he being selected on a 
transparent, just, fair and non-arbitrary system. The 
Petitioner reiterates that he could be least deserving to be 
appointed when considered along with others of more 
meritorious than him, but the fact that since he satisfies all 
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the
basic eligibility criteria prescribed under Articles 124A, 
as amended, and 217, he is entitled to seek a declaration 
at the hands of this Hon'ble Court that an open selection 
be made by advertisement of vacancies or such other 
appropriate mechanism. 
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X. Judicial review versus democracy. Judicial review is 
only to prevent unjust laws to be enacted and the rights of 
the minorities, whatever colour they could be in terms of 
religion, race, views they hold, by a legislation which enjoys 
brutal majority and an of the executive which is tyrannical. 
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SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
It is no way intended to substitute the voice of the people 
by the voice of the high judiciary. 
XI. Article 124A, as amended, is deficient only in one 
respect. The collegium contemplated thereunder is still 
fully loaded in favour of the high judiciary. Three out of the 
six members are Judges. In that sense it is failing to meet 
to be just and democratic. But the Parliament has in its 
wisdom enacted so and if there is a complaint, the forum 
is to generate public opinion and seek greater democracy. 
The Petitioner is currently not interested in that; he is happy 
with the Acts as enacted and the principal relief which he 
seeks in the instant petition is the immediate coming into 
force of the said Acts by appropriate notification and a 
mandamus to that effect at the hands of this Hon'ble Court." 
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10. When my recusal from the reconstituted Bench was 
sought on 21.4.2015, I had expressed unequivocally, that I had 
no desire to hear the matters. Yet, keeping in view the reasons 
expressed in writing by Mr. Fali S. Nariman, with reference to 
Anil R. Dave, J. I had disclosed in open Court, that I had already 
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sent a communication to Hon'ble the Chief Justice of India, 
that I would not participate in the proceedings of the 1 +4 
collegium (of which I was, a member), till the disposal of these 
matters. Yet, the objection was pressed. It needs to be recorded 
that Anil R. Dave, J. was a member of the 1 +2
collegium, as 
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well as, the 1 +4 collegium from the day the hearing in these 
matters commenced. Surprisingly, on that account, his recusal 
was never sought, and he had continued to hear the matters, 
when he was so placed (from 11.3.2015 to 7 .4.2015). But for 
my being a member of the 1 +4 collegium, a prayer had been 
G made for my recusal. 
11. It was, and still is, my personal view, which I do not 
wish to thrust either on Mr. Fali S. Nariman, or on Mr. Mathews 
J. Nedumpara, thatAnil R. Dave, J. was amongst the most 
H suited, to preside over the reconstituted Bench. As noticed
SUPREME COURT ADVOCATES-ON-RECORD 
103 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
. above, he was a part of the 1 +2 collegium, as also, the 1 +4 A 
collegium, under the 'collegium system'; he would continue to 
discharge the same responsibilities, as an ex officio Member 
of the National Judicial Appointments Commission, in the 
'Commission system', under the constitutional amendment 
enforced with effect from 13.4.2015. Therefore, irrespective B 
of the system which would survive the adjudicatory process, 
Anil R. Dave, J. would participate in the selection, appointment 
and transfer of Judges of the higher judiciary. He would, 
therefore, not be affected by the determination of the present 
controversy, one way or the other. 
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12. The prayer for my recusal from the Bench was pressed 
by Mr. Fali S. Nariman, Senior Advocate, in writing, as under: 
"8. In the present case the Presiding Judge, (the Hon'ble 
Mr. Justice J.S. Khehar) by reason of judgments D 
reported in the Second Judges case Supreme Court 
Advocates-on-Record Assn. v. Union of India, (1993) 4 
sec 441, (reaffirmed by unanimously by a Bench of 9 
Judges in the Third Judges case Special Reference 
No.1 of 1998, Re. (1998 7 SCC 739), is at present a 
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member of the Collegium of five Hon 'ble Judges which 
recommends judicial appointments to the Higher 
Judiciary, which will now come under the ambit of the 
National Judicial Appointments Commission set up 
under the aegis of the Constitution
(Ninety-ninth 
F 
Amendment) Act, 2014 read with National Judicial 
Appointments Commission Act No.40 of 2014- if valid; 
but the constitutional validity of these enactments has 
been directly challenged in these proceedings. 
The position of the Presiding Judge on this Bench 
hearing these cases of constitutional challenge is not 
consistent with (and apparently conflicts with) his 
position as a member of the 'collegium'; and is likely to 
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