SUPREME COURT ADVOCATES-ON-RECORD  ASSOCIATION AND ANOTHER versus UNION OF INDIA
[2015] 13 S.C.R. 1, Supreme Court of India, 2015
Outcome: Unknown
Segment: Ratio
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A the "independence of the judiciary". The aforesaid judgment, 
as also, the later judgment in the Third Judges case, re-
established and reaffirmed, that the Chief Justice of India, 
represented through a body of Judges, had primacy. 
According to learned counsel, the individual Chief Justice of 
B India, could not and did not, represent the collective opinion of 
the Judges. It was asserted, that the Constitution (99th 
Amendment) Act, and the NJACAct, had done away with, the 
responsibility vested with the Chief Justice of India, 
represented through a collegium of Judges (under Articles 124 
C and 217 -as originally enacted). Accordingly, it was submitted, 
that till the system adopted for selection and appointment of 
Judges, established and affirmed, the unimpeachable primacy 
of the judiciary, "independence of the judiciary" could not be 
0 deemed to have been preserved. 
26. Insofar as the issue in hand is concerned, it was the 
pointed contention of the learned counsel, that the decision 
rendered by this Court in Sardari Lal v. Union of lndia37, came 
to be overruled in the Samsher Singh case11 • Referring to the 
E judgment in the Samsher Singh case11 , he invited this Court's 
F 
G 
attention to the following observations recorded therein: 
"147. In J.P. Mitterv. Chief Justice, Calcutta AIR 1965 SC 
961 this Court had to consider the decision of the 
Government of India on the age of a Judge of the Calcutta 
High
Court and, in that coritext, had to ascertain the true 
scope and effect of Article 217(3) which clothes the 
President with exclusive jurisdiction to determine the age 
of a Judge finally. In that case the Ministry of Home Affairs 
went through the exercise prescribed in Article 217(3). "The 
then Home Minister wrote to the Chief Minister, West 
Bengal, that he had consulted the Chief Justice of India, 
and he agreed with the advice given to him by the Chief 
Justice, and so he had decided that the date of birth of the 
H 
37 AIR 1971SC1547
SUPREME COURT ADVOCATES-ON-RECORD 
301 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
appellant was .... lt is this decision which was, in due course A 
communicated to the appellant". When the said decision 
was attacked as one reached by the Home Minister only 
and not by the President personally, the Court observed: · 
"The alternative stand which the_ appellant took was that 
the Executive was not entitled to determine his age, and it B 
must be remembered that this stand was taken before 
Article 217(3) was inserted in the Constitution; the appellant 
was undoubtedly justified in contending that the Executive 
was not competent to determine the question about his 
age because that is a matter which would have to be tried C 
normally, in judicial proceedings instituted before High 
Courts of competent jurisdiction. There is considerable 
force in the pleawhich the appellant took at the initial stages 
of this controversy that if the Executive is allowed to D 
determi_ne the age of a sitting Judge of a High Court. that 
would seriously affect the independence of the Judiciary 
itself." 
Based on this reasoning. the Court quashed the order the 
ratio of the case being that the President himself should 
E 
decide the age of the Judge. uninfluenced by the Executive. 
i.e. by the Minister in charge of the portfolio dealing with 
justice. 
148. This decision was reiterated in Union of India v. Jyoti 
Prakash Mitter (1971) 1 SCC 396. Although an argument 
F 
was made that
the President was· guided in that case by 
the Minister of Home Affairs and by the Prime Minister. it 
was repelled by the Court which on the facts. fou'nd the 
decision to be that of the President himself and not of the 
Prime Minister or the Home Minister. 
G. 
149~ In the light of the scheme of the Constitution we have 
already referred to, it ls doubtful whether such an 
interpretation as to the personal ~atisfaction of the President 
is correct. We are of the view that the President means, 
for all practical purposes, the Minister or the Council of 
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A 
Ministers as the case may be, and his opinion, satisfaction 
or decision is constitutionally secured when his Ministers 
arrive at such opinion satisfaction or decision. The 
independence of the Judiciarv which is a cardinal principle 
of the Constitution and has been relied on to justify the 
B 
deviation, is guarded by the relevant article-making 
consultation with the Chief Justice of India obligatorv In all 
conceivable cases consultation with that highest dignitary 
of Indian justice will and should be accepted by the 
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Government of India and the Court will have an opportunity 
to examine if any other extraneous circumstances have 
entered into the verdict of the Minister, if he departs from 
the counsel given by the Chief Justice of India. In practice 
the last word in such a sensitive subject must belong to 
the Chief Justice of India. the rejection of his advice being 
ordinarily regarded as prompted by oblique considerations 
vitiating the order. In this view it is immaterial whether the 
President or the Prime Minister or the Minister for Justice 
formally decides the issue." 
27. It was pointed out, that the decision in the Samsher 
Singh case11 , came to be rendered well before the decision in 
the First Judges case, wherein this Court felt, that Judges could 
be fearless only if, institutional immunity was assured, and 
institutional autonomy was guaranteed. The view expressed 
F in the Samsher Singh case
11 in 197 4 was, that the final authority 
in the matter of appointment of Judges to the higher judiciary, 
rested with the Chief Justice of India. It was pointed out, that 
the above position had held the field, ever since. It was 
submitted, that "independence of the judiciary" has always 
G meant and included independence in the matter of appointment 
of Judges to the higher judiciary. 
H 
28. Mr. Arvind P. Datar, learned Senior Advocate 
contended, that the NJAC had been created by an amendment 
to the Constitution. It therefore was a creature of the
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303 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Constitution. Power had been vested with the NJAC to make A 
recommendations of persons for appointment as Judges to 
the higher judiciary, including the power to transfer Chief 
Justices and Judges of High Courts, from one High Court to 
another. The above constitutional authority, it was submitted, 
must be regulated by a constitutional scheme, which must flow B 
from the provisions of the Constitution itself. Therefore, it was 
asserted, thatthe manneroffunctioning of the NJAC must be 
contained in the Constitution itself. It was submitted, that the 
method of functioning of the NJAC, could not be left to the 
Parliament, to be regulated by ordinary law. In order to support C 
his aforestated contention, reliance was placed on entries 77 
and 78, contained in the Union List of the Seventh Schedule. 
It was submitted, that the power to frame legislation, with 
reference to entries 77 and 78 was not absolute, inasmuch 
as, Article 245 authorized the Parliament, to legislate on 
D 
subjects falling within its realm, subject to the substantive 
provisions contained in the Constitution. For the above reason, 
it was asserted, that the activities of the NJAC could not be 
made subject to, or subservient to, the power vested in the 
E 
Parliament, under entries 77 and 78. 
29. It was contended by Mr. Ram Jethmalani, learned 
Senior Advocate, that there was sufficient circumstantial
evidence to demonstrate, that the. present political 
establishment felt, that the judiciary was an obstacle for the 
F 
implementation of its policies. It was contended, that the entire 
effort, was to subdue the judiciary, by inducting into the selection 
process, those who could be politically influenced. In order to 
project, the concerted effort of the political dispensation, in 
subverting the ''independence of the judiciary", learned counsel, 
G 
in the first instance, pointed out, that the first Bill to constitute a 
National Judicial Commission [the Constitution (67th 
Amendment) Bill, 1990] was introduced in the Lok Sabha on 
18.5.1990. Thestatementofits"Objectsand Reasons", which 
was relied upon, is extracted below: 
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."The Government of India have in the recent past 
announced their intention to set up a high level judicial 
commission, to be called the National Judicial Commission 
for the appointment of Judges of the Supreme Court and 
of the High Courts and the transfer of Judges of the High 
B 
Courts so as to obviate the criticisms of arbitrariness on 
the part of the Executive in such appointments and transfers 
and also to make such appointments without any delay. 
The Law Commission of India in their One Hundred and 
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Twenty-first Report also emphasised the need for a change 
in the system. 
2. The National Judicial Commission to make 
recommendations with respect to the appointment of 
Judges of the Supreme Court will consist of the Chief 
Justice of India and two other Judges of the Supreme Court 
next in seniority to the Chief Justice of India. The 
Commission to make recommendations with respect to 
the appointment of the Judges of the High Courts will consist 
of the Chief Justice of India, one senior-most Judge of the 
Supreme Court, the Chief Minister of the State concerned, 
Chief Justice of the concerned High Court and one senior-
most Judge of that High Court. 
3. The Bill seeks to achieve the above object. 
NEW DELHI; 
F 
The 11 '" May, 1990;" 
The proposed National Judicial Commission in the above 
Bill, was to be made a component of Part XlllA of the 
Constitution, by including therein Article 307 A. The Chief
Justice of India, and the next two senior most Judges of the 
G Supreme Court, were proposed to comprise of the 
contemplated ComrT)ission, for making appointments of 
Judges to the Supreme Court, Chief Justices and Judges to 
High Courts, and for transfer of High Court Judges from one 
High Court to another. The above Commission, omitted any 
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SUPREME COURT ADVOCATES-ON-RECORD 
305 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]" 
executive and legislative participation. The proposed A 
composition of the Commission, for appointing High Court 
Judges, included the Chief Justice of India, the Chief Minister 
or the Governor of the concerned State, the senior most Judge 
of the Supreme Court, the Chief Justice of the concerned High 
Court, and the senior most Judge of that Court. The above Bill B 
also provided for, an independent and separate secretarial 
staffforthe contemplated Commissi~n. ltwas submitted, that 
the above amendment to the Constitution, was on account of 
the disillusionment and incredulity with the legal position, 
expounded by this Court in the First Judges case. It was C 
submitted, that the necessity to give effect to the proposed 
Constitution (67th Amendment) Bill, 1990, stood obviated when 
this Court rendered its judgment in the Second Judges case. 
All this, according to learned counsel for the petitioners, has D 
been forgotten and ignored. 
30. Historically, the next stage, was when the Constitution 
(98thAmendment) Bill, 2003 was placed before the Parliament 
for its consideration. In the above Bill, the executive 
participation in the process of sele9tion and appointment of E 
Judges to the higher judiciary, was introduced by making the 
Union Minister of Law and Justice, an ex officio Member of 
the Commission. Two eminent citizens (either eminent jurists, 
or eminent lawyers, or
legal academicians of high repute) 
would also be Members of the Commission. One of them was F 
to be appointed by the President in consultation with the Chief 
Justice of India, and the other, in consultation with thePrime 
Minister. Yet another effort was made (by the previous U.P.A. 
Government), in the same direction, through the Constitution 
(120th Amendment) Bill, 2013, on similar lines as the 2003 G 
Bill. It was sought to be pointed out, that there was a consensus 
amongst all the parties, that the aforesaid Bill should be 
approved. And that, learned counsel personally, as a Member 
of the Rajya Sabha, had strongly contested the above move. 
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[2015] 13 S.C.R. 
A Learned counsel invited this Court's attention to the objections 
raised by him, during the course of the debate before the Rajya 
Sabha. He emphasized, that he had submitted to the 
Parliament, that the Constitution Amendment Bill, needed to 
be referred to the Select Committee of the Parliament, as the 
B same in his opinion was unconstitutional. An extract of the 
debate was also brought to our notice (by substituting the 
. vernacular part thereof, with its English translation), it is being 
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reproduced hereunder: . 
"My suggestion is: Let the Judicial Appointments 
Commission Bill go to the Standing Committee. The rest 
of the business we should pass today. Thank you. 
Shri Ram Jethmalali: Madam, thank you; better late than 
never. 
Sir, I wish to make two preliminary suggestions. lfthere is 
an assurance that the Constitution (Amendment) Bill as 
well as the subsidiary Bill will both be referred to a Select 
Committee of Parliament, I do not propose to address this 
House at all. But, I do not consider it suitable or proper 
that only the second Bill should be referred to a Select 
Committee. Both should be sent. And, I will give my 
reasons. 
Sir, the second suggestion that I have to make is this. ~ 
main contention, which I am going to make. is that the 
Constitution (Amendment) Bill is wholly unconstitutional 
and, if passed, it will undoubtedly be set aside by the 
Supreme Court. because it interferes
with the basic feature 
of the Constitution. Such amendments of the Constitution 
are outside the jurisdiction of this House. The amendment 
process prescribed by the Constitution requires 2/3" 
majority and so on and so forth. That applies only to those 
amendments of the Constitution which do not touch what 
are called the basic features of the Constitution as 
understood in the Kesavananda Bharati case. 
This
SUPREME COURT ADVOCATES-ON-RECORD 
307 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Constitutional amendment. certainly. interferes with a basic A 
feature of the Indian Constitution and it will not be sustained 
ever. But. if it is said that even if you pass it. it will not be 
brought into force until a Reference is made to the Supreme 
Court and the Supreme Court answers the question of the 
validity of this Constitution amendment in the affirmative. 
B 
If that is done I. again. need not speak. But, Sir, since I 
don't expect both these reasonable suggestrons to be 
accepted, I intend to speak and speak my mind. 
xxx 
xxx 
xxx 
Kapil is my great friend and is one of the Ministers in the C 
Government whose work as the Law Minister I keep 
supervising and I am happy the manner in which he 
conducts his Ministry. But. Sir. I must declare today that 
my conscience understanding and my duty towards the 
D 
people of this country. which I regard as my paramount 
obligation. do not permit me to submit to this kind of 
legislation. Both the Bills. according to me are evil. The 
evil. first of all. consists in the misleading Statement of 
Objects-and-Reasons. You ought to have said with 
E 
complete honesty th'1t what you are trying to demolish is 
the Collegium System. which seems to be the object and 
which is apparent to anyone. Some of the persons who 
have spoken have spoken on the assumption that that is 
the purpose of this particular piece of legislation. 
F 
Sir,
the first point that I propose to make is that the 1993 
judgment of Nine Judges is a judgment based upon the 
discovery of the basic feature of the Constitution, and upon 
. devising a system to sustain that basic feature, Madam, I 
have myself appeared in that litigation and I claim that I G 
had a tremendous contribution to make to the success of 
that judgment. In a sense, I claim to be the founder of the 
Collegium System. But that does not mean that I am an 
unmixed admirer of the Collegium System. The Collegium 
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[2015] 13 S.C.R. 
System has, doubtless, some faults. But the Collegium 
System came into existence on the basis of one main 
argument. That one main argument that we advance, and 
advance with great vigour and force, is that there is one 
article of the Constitution, article 50 of the Constitution, 
which is the shortest article in the Constitution, consisting 
of only one sentence. That article says that the Government 
shall strive to keep the Judiciary separate from the 
Executive. 
Sir, we argued before the Supreme Court that this article 
does not mean that Judges and Ministers should not socially 
meet. This does not mean that they should live in separate 
towns, or that they should not live even in adjoining 
bungalows. The purpose of this article is to ensure that in 
the appointment of Judges the Executive has no role to 
play. except the advisory role. In other words, the doctrine 
of primacy of the Executive in the appointment process 
was irksome to us because the whole nation of India has 
been the victim of the Judges appointed in the earlier 
E 
system. I have been a refugee from my own country during 
the Emergency. Why was it? It was because four Supreme 
Court Judges - I am not talking of the fifth who earned the 
New York Times praise that the Indian nation will have to 
build a monument to his memory; I am talking of the other 
F 
four who-disgraced the Judiciary, disgraced the Supreme 
Court and were parties to
the destruction of Indian 
democracy and the demolition and the debasement of the 
whole Constitution of India. Sir, of which system were they 
the product? They were the product of that system which, 
G 
in 1981, was ultimately supported by the Gupta Judgment 
but, after some time, there were people, intellectuals, who 
spoke up that this system would not work; the system 
requires change. Sir, the Indian democracy has been saved 
not by intellectuals; Indian democracy at its most crucial 
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SUPREME COURT ADVOCATES-ON-RECORD 
309 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
hour has been saved by ttie poor illiterates of this country. 
A 
In times of crises, it is only the brave hearted who matter. 
On those which one had pride remained tongue tied (Two 
sentences translated); 
That is the tragedy of our country. Sir, the intellectuals of 
this country have continuously failed, and I regret to say 
B 
that they are fail.ing even today. Collegium may be the 
creation of the Judiciary. it is the creation of judicial 
interpretation. again. of the Constitution. but whatever be 
the faults of the Collegium. the Collegium today represents 
some system which is consistent with the basic features 
of the Constitution; namely. the supremacy of the'Judiciary 
and its freedom from any influence of the Executive in the 
appointment process. 
c 
. 
·XXX 
XXX 
XXX 
Sir, 1 ·am speaking for those who are not irrevocably D 
committed to voting for this amendment. There are some 
people who must have kept their minds still open. I am 
appealing to those minds today only. Those who are 
irrevocably committed are committed to the destruction of E 
Indian democracy. 
·Sir, the k-ey passage in the judgment of the Supreme Court 
of 1993 is the passage which I wish to share with the House. 
The question of primacy to the opinion of the Chief Justice 
oflndia in the matters of appointment and transfer and their 
F 
justifiability should be considered in the context of the
independence of the Judiciary as a part of the basic 
structure of the Constitution to secure the rule of law 
essential for preservation of the democratic system. The 
broad scheme of separation of powers adopted in the 
G 
Constituti~n together with the Directive Principles of 
separation of the Judiciary from the Executive, even at the 
lowest strata, provides some insight to the true meaning 
of the relevant provisions of the Constitution relating to the 
H 
--·
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[2015] 13 S.C.R. 
A 
composition of the Judiciary. Th~ construction of these 
provisions must accord with these fundamental concepts 
in the Constitutional sc: 1eme to preserve the vitality and 
promote the growth of the essential of retaining the 
B 
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Constitution as a vibrant organism". 
Sir. the Constitution cannot survive. human freedom cannot 
survive. citizens' human rights cannot survive, no 
development can take place unless. of course, the judges 
are independent first of the Executive power because don't 
forget that every citizen has a grievance against the corrupt 
members of the Executive, or, errant bureaucracy public 
officers misusing power, indulging in corruption. making 
wrong and illegal orders. The citizen goes to the court, 
knocks the door of the court and says, "Please give me a 
mandamus against this corrupt official, against this corrupt 
Minister".And, Sir, the judges are supposed to decide upon 
the claims of the poorest who go to the Supreme Court ... 
... (Interruptions) ...... and to the judges. It may be, and I am 
conscious ...... (Interruptions) ... Sir, this is not a laughing 
matter. Please listen, and then decide for yourself .... 
xxx 
xxx 
xxx. 
Sir, first of all, let me say this now that the whole judgement 
of nine Judges is based upon this principle that in the 
appointment process, the Executive can never have 
F 
primacy. This is principle number one. It has now become 
the basic feature of
India's Constitution. My grievance today 
against this Constitution (Amendment) Bill is that you are 
slowly, slowly now creating a new method by which 
ultimately you will revert to the system which existed prior 
G 
to 1993. In other words, the same system would produce 
those four Judges who destroyed the Indian democracy, 
human rights and freedom. Sir, kindly see, why. The 
· Constitution Amendment looks very innocent. All that it says 
is that we shall have a new article 124(a) in the Constitution 
H 
and article 124(a) merely says that there shall be a Judicial
SUPREME COURT ADVOCATES-ON-RECORD 
311 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Appointments Commission. It lays down that the Judicial 
A 
Appointments Commission will have these functions. It 
leaves at that But, kindly see that after the first sentence, 
every thing is left to a Parliamentary will. After saying that 
there will _be a Judicial Appointments Commission, every 
thing will be left, according to the second part of 124(a), to 
B 
a parliamentary legislation which is capable of being 
removed if the ruling party has one Member majority in both 
Houses of Parliament. Not only that, I understand that 
Parliament is not likely to do it, but it can do it and by a 
majority of one in both Houses, you can demolish the whole C 
thing and substitute it with a Judicial Commission which 
will consist of_only the Law Minister. 
xxx 
xxx 
xxx 
So Sir my first objection is that this Bill is a Bill which is 
D 
intended to deal with the basic structure of the Constitution 
and. therefore. this Bill is void. {Time-bell) Second. if a 
Constitutional Amendment is not good enough for this 
purpose surely. an ordinary piece of legislation cannot do 
it. which ordinary piece of legislation can be removed only 
E 
by a majority of one in each House. It can be removed like 
the 30th July Food Security Ordinance and you can pass 
an Ordinance on that day and say that the whole Act is 
repealed and now the system will be that Judges will be 
appointed for the next six months
by only the Law Minister F 
of India. If there was Mr. Kapil Sibal, ... (Interruptions) ... If 
Mr. Kapil Sibal becomes the Law Minister for ever, Sir, I will 
allow this Bill to go. (Time-bell) But I am not prepared to 
accept it for the future Law Ministers.' ... (Interruptions) ... 
Sir, let me take two more. minutes and tell all those 
G · 
Members that this Bill is not intended to ensure the judicial 
character. This Bill has nothing to do with the improvement 
of the judicial character. So long as the Judges are also 
h~man, there will be some Judges who will go wrong, who 
may go wrong. But a great Bar can control them ..... " 
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[2015] 13 S.C.R. 
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xxx 
xxx 
xxx 
Sir, I hope, people will avoid this kind of a tragedy in the life 
of this country. You are today digging the grave of the 
Constitution of India and the freedom of this country . 
... (Interruptions) ... That's all I wished to say. 
B 
... (Interruptions) ... " 
It was submitted, that in the Raj ya Sabha 131 votes were 
cast in affirmation of the proposed Bill, as against the solitary 
vote of the learned counsel, against the same on 5.9.2013. It 
C was however pointed out, that the effort did not bear fruit, on 
account of the intervening declaration for elections to the 
Parliament. 
31. Learned counsel thereafter, invited our attention to 
the statement of "Objects and Reasons" for the promulgation 
D of the Constitution (121 st Amendment) Bill, 2014. The Bill which 
eventually gave rise to the impugned Constftution (99th 
Amendment) Act, was taken up for consideration by the Lok 
Sabha on 13.8.2014, and was passed without much debate. 
It was submitted, that on the following day i.e., 14.8.2014, the 
E same was placed before the Rajya Sabha, and was again 
passed, without much dis£ussion. It was pointed out, that an 
issue, as serious as the one in hand, whi~h could have serious 
repercussions on the "independence of the judiciary", was 
sought to be rushed through. 
F 
32. It was submitted, that the "Objects and Reasons" of 
the Constitution (99th Amendment)Act were painfully lacking, 
in the expression of
details, which had necessitated the 
proposed/impugned constitutional amendment. It was 
G submitted, that it was imperative to have brought to the notice 
of the Parliament, that the Supreme Court had declared, that 
the "rule of law", the "separation of powers" and the 
"independence of the judiciary", were "salient and basic 
features" of the Constitution. And that, the same could not be 
H abrogated, through a constitutional amendment.And further
I 
( 
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SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
that, the Supreme Court had expressly provided for the primacy . A 
of the ChiefJustice of India, based on a decision of a collegium 
of Judges, with reference to the appointments and transfers of 
Judges of the higher judiciary. 
33. It was submitted by Mr. Ram Jethmalani, tliat the 
B 
impugned constitutional amendment, so as to introduce Article 
· 124A ought to be described as a fraud on the Constitution 
itself. It was pointed out, that the first effort of introducing Article 
124A was made by the previous Government, through the 
Constitution (120th Amendment) Bill, 2013. In the above Bill, c 
.Article 124Aalone (as againstArticles 124Ato 124C, presently. 
enacted) was introduced. ltwas submitted, that the Rajya 
Sabha passed the above Bill on 5.9.2013, when 131 Members 
of the Rajya Sabha supported the Bill (with only one Member 
opposing it). Learned counsel submitted, that he alone had D 
opposed the Bill. It was asserted, that the above fraud was 
sought to be perpetuated, through the passing of the 
Constitution (121stAmendment) Bill, 2014, by the Lok Sabha 
on 13.8.2014, and by the Rajya Sabha on 14.8.2014. It was 
pointed out, that Parliamentarians from different political 
E 
parties had joined. hands. It was submitted, that as a · 
Parliamentarian, he was in a position to assert, that the merits 
and demerits of the impugned amendment to the Constitution, 
were
not debated, wh.en theE3ill was passed, because of the 
universal bias entertained by the legislature, against the 
F 
judiciary. It wa$ submitted, that prejudice and intolerance had 
arisen, because of the fact that the judiciary often interfered 
· with, a11d Qften effaced legislative action(s), as also, executive 
decision(s ). 
· 
G 
1 
· 34. Learned senior counsel also asserted, that the 
· .Constitution (99th Amendment) Act, was wholly ultra vires, as 
it seriously infringed the "basic struct.ure/feature" of the 
Constitution i.e., the "independence of the judiciary". It was 
submitted, that the veracity of the above constitutional 
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[2015] 13 S.C.R. 
A amendment, had to be examined in the light of Article 50. 
According to learned counsel, the politicization of the process 
of selection and appointment of Judges to the higher judiciary, 
would lead to a dilution of the "independence of the judiciary". 
It was submitted, that the inclusion of the Union Minister in 
B charge of Law and Justice, as an ex officio Member of the 
NJAC, had the effect of politicization of the process of 
appointment of Judges to the higher judiciary. It was pointed 
out, that the inclusion of the Union Minister in charge of Law 
and Justice within the framework of the NJAC, meant the 
C introduction of the Government of the day, into the selection 
process. It was asserted, that the Union Minister's inclusion, 
meant surrendering one-sixth of the power of appointment, to 
the Government. It was submitted, that in order to understand 
0 
the true effect of the inclusion of the Union Minister, into the 
process of selection and appointment of Judges to the higher 
judiciary, one had to keep in mind the tremendous amount of 
patronage, which the Uriion Minister for Law and Justice 
carries, and as such, it would be within the inference of the 
E Union Minister in charge of Law and Justice, to make the 
process fallible, by extending his power of patronage to support 
or oppose candidates, who may be suitable or unsuitable, to 
the Government of the day. Even though the Union Minister 
had been assigned
only one vole, it was submitted, that he 
F could paralyse the whole system, on the basis of the authority 
he exercised. To drive home his contention, learned counsel 
made a reference to the introduction of the book "Choosing 
Hammurabi~ Debates on Judicial Appointments", edited by 
Santosh Paul. In the introduction to the book, the thoughts of 
G H.L. Mencken are expressed in the following words: 
H 
"But when politicians talk thus or act thus without talking. 
it is precisely the time to watch them most carefully. Their 
usual plan is to invade the constitution stealthily, and then 
wait to see what happens. If nothing happens they go on
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
more boldly· if there is a protest they reply hotly that the 
A 
constitution is worn out and absurd and that progress is 
impossible under the dead hand. This is the time to watch 
them especially. They are up to no good to anyone save 
themselves They are trying to whittle away the common 
rights of the rest of us. Their one and only object. now and 
B 
always is to get more power in to their hands that it may 
be used freely for their advantage. and to the damage of 
everyone else. Beware of all politicians at all times. but 
beware of them most sharoly when they talk of reforming 
and improving the constitution." 
35. Learned Senior Advocate also contended, that the 
inclusion of two "eminent persons" in the six-Member NJAC, 
c 
as provided for, under Article 124A( 1) of the Constitution (99th 
Amendment) Act, was also clearly unconstitutional. It was D 
contended, that there necessarily had to be, an indication of 
the positive qualifications required to be possessed by the 
two "eminent persons", to be nominated to the NJAC. 
Additionally, it was necessary to stipulate disqualifications. 
Illustratively, it was pointed out, that an individual having a 
E 
conflict.of interest, should be disqualified. And such confli~t 
would be apparent, when the individual had a p'olitical role. A 
politician has to serve his constituency, he has to nourish and 
sustain his vote bank, and above
all, he has to conform with 
the agenda of his. political party. Likewise, a person with 
F 
ongoing litigation, irrespective of the nature of such litigation, 
would render himself ineligible for serving as an "eminent 
person" within the framework of the NJAC, because of his 
conflict of interest. 
36. With reference to the inclusion of two "eminent G 
persons" in the NJAC, Mr. Arvind P. Datar, learned Senior 
Advocate, invited our attention to Article 124A, whereunder, 
the above two "eminent persons" are to be nominated by a 
committee comprising of the Prime Minister, the Chief Justice H
316 
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[2015] 13 S.C.R. 
A of India and the Leader of Opposition in the House of People, 
or, where there is no such Leader of Opposition, then, leader 
of the single largest opposition party in the House of the People. · 
Learned counsel submitted, that neither Article 124A, nor any . 
other provision, and not even the provisions of the NJAC Act, · 
B indicate the qualifications, of the two "eminent persons", who 
have been included amongst the six-Mernber NJAC. It was . · 
sought to be asserted, that in approximately 70 Statutes and 
Rules, the expression "eminent person" has been employed. 
Out of the 70 Statutes, in 67, the field in which such persons 
C must be eminent, has been clearly expressed. Only in three 
statutes, the term "eminent person" was used without any further 
qualification. It was asserted, that the term "eminent person" 
had been left vague and undefined, in Article 124A. It was 
0 submitted, that the vagueness of the term "eminent person" 
was itself, good enough to justify the striking down of the 
provision. It was emphasized, that the determinative role 
assigned to the two "eminent persons", included amongst the 
six-Member NJAC, was so important, that the same could not 
E be left to the imagination of the nominating committee, which 
comprised of just men" ... with all the failings, all the sentiments 
and all prejudices which we as common people have ... " 
(relying on the words of Dr. B.R. Ambedkar). 
37. Referring to the
second proviso under Section 5(2), 
F as well as, Section 6(6) of the NJAC Act, it was submitted, 
that a recommendation for appointment of a Judge, could not 
be carried out, if the two "eminent persons" did n·ot accede to 
the same. In case they choose to disagree with the other 
Members of the NJAC, the proposed recommendation could 
G not be given effect to, even though the other four Members of 
the NJAC including all the three representativ~s of the Supreme 
Court approved of the same. It was pointed out. that the two 
"eminent persons", therefore would have a decisive say. It was 
H further submitted, that the impact of the determination of the
SUPREME COURT ADVOCATES-ON-RECORD 
317 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
two "eminent persons", would be such, as would negate the A 
. primacy hitherto before vested in the Chief Justice of India. It 
was pointed out, that a positive recommendation by the Chief 
Justice of India, supported by two other senior Judges of the 
Supreme Court (next to the Chief Justice of India), could be 
frustrated by an opposition at the hands of the two "eminent B 
persons". The above implied veto power, according to the 
learned counsel, could lead to structured bargaining, so as to 
persuade the other Members of the NJAC, to accede to the 
names of undesirable nominees Uust to avoid a stalemate of 
sorts). It was submitted, that such a composition had been 
C 
adversely commented upon by this Court in Union of India v. 
R. Gandhi38• In the judgment, the provision, which was subject 
matter of consideration, was Section 10-FX. Under the above 
provision, the Selection Committee for appointing the D 
Chairperson and Members of the Appellate Tribunal, and the 
President and Members of the Tribunal was to be comprised 
of the Chief Justice of India (or his nominee), besides four 
Secretaries from different Ministries~of the Union Government. 
This Court recorded its conclusions with reference to the 
E 
aforesaid provision in paragraph 120(viii), which is being 
extracted hereunder: 
"120(viii) Instead of a five-member Selection Committee 
with the Chief Justice of India (or
his nominee) as 
Chairperson and two Secretaries from the Ministry of 
F 
Finance and Company Affairs and the Secretary in the 
Ministry of Labour and the Secretary in the Ministry of Law 
and Justice as members mentioned in Section 10-FX, the 
Selectio_n Committee should broadly be on the following 
lines: 
G. 
(a) Chief Justice of India or his nominee """ Chairperson 
(with a casting vote); 
(b) A Senior Judge of the Supreme Court or Chief Justice 
of High Court - Member; 
38 (2010) 11 sec 1 
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A 
(c) Secretary in the Ministry of Finance and Company Affairs 
-Member; and 
(d) Secretary in the Ministry of Law and Justice- Member." 
It was submitted, that the purpose sought to be achieved, 
was not exclusivity, but primacy. It is further submitted, that if 
B primacy was considered to be important for selection of 
Members to be appointed to a tribunal, primacy assumed a 
far greater significance, when the issue under consideration 
was appointment and transfer of Judges of the higher judiciary. 
C It was accordingly contended, that the manner in which the 
composition of the NJAC had been worked out in Article 124A, 
and the manner in which the NJAC is to function with reference 
to the provisions of the NJAC Act, left no room for any doubt, 
that the same was in clear violation of the law laid down by this 
0 Court, and therefore, liable to be set aside. 
38. Learned counsel on the above facts, contested not 
only the constitutional validity of clauses (c) and (d) of Article 
124A(1 ), but also emphatica11y assailed the first proviso under 
Article 124A(1 )(d), which postulates, that one of the "eminent 
E persons" should belong to the Scheduled Castes, Scheduled 
Tribes, Other Backward Classes, Minorities or Women. It was 
submitted, that these sort of populistic measures, ought not to 
be thought of, while examining a matter as important as the 
higher judiciary. 
It was submitted, that it was not 
F understandable,
what the choice of including a person from 
one of the aforesaid categories was aimed at. In the opinion 
of learned counsel, the above proviso was farcical, and 
therefore, totally unacceptable. While members of a particular 
G community may be relevant for protecting the interest of their 
I 
community, yet it could not be conceived, why such a measure 
should be adopted, for such an important constitutional 
responsibility. In the opinion of the learned counsel, the inclusion 
of such a Member in the NJAC, was bound to lead to 
H compromises.
SUPREME COURT ADVOCATES-ON-RECORD 
319 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
39. It was also the contention of Mr.Arvind P. Datar, that A 
Article 124C introduced by the Constitution (99th Amendment) 
Act, was wholly unnecessary. It was pointed out, that in the 
absence of Article 124C, the NJAC would have had the inherent 
power to regulate its own functioning. It was submitted, that 
Article.124C was a serious intrusion into the above inherent B 
power. Now that, the Parliament had been authorized to 
·regulate the procedure for appointments by framing laws, it 
would also result in the transfer of control over the appointment 
process (-of Judges to the higher judiciary), to the Parliament. 
It was submitted, that there could not be any legislative control, C 
with reference to appointment of Judges to the higher judiciary. 
Such legislative control, according to learned counsel, would 
breach "independence of the judiciary". ltwas submitted, that 
the Parliament having exercised its authority in that behalf, by D 
framing the NJACAct, and having provided therein, the ultimate 
control with the Parliament, must be deemed to have crossed 
the line, and transgressed into forbidden territory, exclusively 
reserved for the judiciary. Learned counsel. contended, that the 
duties and responsibilities vested in a constitutional authority, E . 
could only be circumscribed by the Constitution, and not by 
the Parliament through legislation._ It was submitted, that the
NJAC was a creature of the Constitution, as the NJAC flows 
out of Article 124A. Likewise, the Parliament, was also a 
creature of the Constitution. It was submitted, that one entity F 
which was the creation of the Constitution, could not regulate 
the other, owing its existence to the Constitution. 
40. It was pointed out by Mr. Ram Jethmalani, learned 
Senior Advocate, that the statement of "Objects and Reasons", 
as were projected for the instant legislation, indicated inter G 
alia, that the NJAC would provide "a meaningful role to the. 
judiciary". It was submitted, that what was meant by the 
aforesaid affirmation, was not comprehendible to him. It was 
further highlighted, that it also asserted in the "Objects and 
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[2015] 13 S.C.R. 
A Reasons'', that "the executive and the eminent persons to 
present their viewpoints and make the participants 
accountable", was likewise unintelligible to him. It was 
submitted, that a perusal of the Constitution (99th Amendment) 
Act (as also, the NJAC Act) would not reveal, how the Members 
B of the NJAC were to be made responsible. It was further 
submitted, that the statement of "Objects and Reasons" also 
indicate, that the manner of appointment of Judges to the higher 
judiciary, would introduce transparency in the selection 
process. It was contended, that the enactments under 
C reference, amounted to commission of a fraud by Parliament, 
on the people of the country. As it was not possible to 
understand, how and who was to be made accountable - the 
executive, -the "eminent persons", -the judiciary itself. It was 
0 accordingly sought to be asserted, that the Parliament seemed 
to be asserting one thing, while it was doing something else. 
Learned counsel also placed reliance on Shreya Singhal v. 
Union of lndia39, wherefrom the following observations were 
brought to our notice: 
E 
"50. Counsel for the Petitioners argued that the language 
used in Section 66A is so vague that neither would an 
accused person be put on notice as to what exactly is the 
offence which has been committed nor would the 
authorities administering the Section be clear as to on 
F 
which side of a clearly drawn line a particular
communication will fall." 
Based on the above submissions, it was asserted, that 
the statement of "Objects and Reasons", could not have been 
more vague, ambiguous, and fanciful than the ones in the 
G matter at hand. 
41. Mr. Anil B. Divan, Senior Advocate, while appearing 
for the petitioner in the petition filed by the Bar Association of 
India (Writ Petition (C) No.108 of 2015), first and foremost 
H 
"2015 (4) SCALE 1
SUPREME COURT ADVOCATES-ON-RECORD 
321 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
pointed out, that the Bar Association of India represents th~ A 
High Court Bar Association, Kolkata (West Bengal), The 
Awadh Bar Association, Lucknow (Uttar Pradesh), the Madras 
Bar Association, Chennai (Tamil Nadu), the Supreme Court 
Bar Association, New Delhi, the Gujarat High Court Advocates' 
Association, Gandhinagar (Gujarat), the Advocates' 
B 
Association, Chennai (Tamil Nadu), theAndhra Pradesh High 
Court Advocates' Association, Hyderabad (Andhra Pradesh), 
the Delhi High Court Bar Association, New Delhi, the Bar 
Association Mumbai (Maharashtra), the Gauhati High Court 
Bar Association, Guwahati (Assam), the Punjab & Haryana C 
High Cou·rt Bar Association, Chandigarh (Punjab & Haryana), 
the Bombay Incorporated La~ Society, Mumbai (Maharashtra), 
the Madhya Pradesh High Court Bar Association, Jabalpur 
(Madhya Pradesh), the Advocates' Association Bangalore D 
(Karnataka), the Central Excise, Customs (Gold) Control Bar 
Association, New Delhi, the Advocates' Association, Allahabad 
(Uttar Pradesh), t~e Karnataka Advocates' Federation, 
Bangalore (Karnataka), the Allahabad High Court Bar 
Association (Uttar Pradesh), the Goa High Court Bar E 
Association, Panaji (Goa), the Society of India Law of Firms, 
New Delhi, the Chhattisgarh High Court Bar Association, 
Bilaspur (Chhattisgarh), the Nagpur High Court Bar 
Association, Nagpur (Maharashtra), the Madurai Bench of 
·
Madras High Court Bar Association, Madurai (Tamil Nadu), 
F 
the Jharkhand High Court Bar Association, R~nchi (Jharkhand), 
the Bar Association of National Capital Region, New Delhi, 
and the Gulbarga High Court Bar Association, Gulbarga 
(Karnataka). It was submitted, that all the aforementioned Bar 
Associations were unanimous in their challenge, to the G 
Constitution (99th Amendment) Act, and the NJAC Act. It was 
submitted, that the challenge to the former was based on the 
fact that it violated the "basic structure" of the Constitution, and 
the challenge to the latter, was based on its being ultra vires 
the provisions of the Constitution. 
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[2015] 13 S.C.R. 
A 
42. Learned counsel had adopted a stance, which was 
different from the <;me adopted by others. The submissions 
advanced by the learned senior counsel, were premised on 
the fact, that under the constitutional power of judicial review, 
the higher judiciary not only enforced fundamental rights, but 
B also restricted the legislature and the executive, within the 
confines of their jurisdiction(s). It was pointed out, that it was . 
the above power, which was the source of tension and friction 
between the judiciary on the one hand, and the two other pillars 
of governance i.e., the legislature and the executive, on the 
C other. This friction, it was pointed out, was caused on account 
of the fact, that while discharging its responsibility of judicial . 
review, executive backed actions of the legislature, were 
sometimes invalidated, resulting in the belief, that the judiciary 
0 was influencing and dominating the other two pillars of 
governance. Illustratively, it was pointed out, that in the 
beginning of independent governance of the country, judicial 
review led to the setting aside of legislations, pertaining to 
land reforms and zamindari abolition. This had led to the 
E adoption of inserting legislations in the Ninth Schedule of the 
Constitution, so as to exclude them from the purview of judicial 
review. 
43. It was submitted, that the first manifestation of a 
confrontation between the judiciary and the other two
wings of 
F governance, were indicated in the observations recorded in 
State of Madras v. V.G. Row'0, wherein, as far back as in 1952, 
the Supreme Court observed, that its conclusions were 
recorded, not out of any desire to a tilt at the legislative authority 
in a crusader's spirit, but in discharge of the duty plainly laid 
G upon the Courts, by the Constitution. 
44. It was submitted, that the legislations placed in the 
Ninth Schedule of the Constitution, from the original 13 items 
(relating to land reforms and zamindari abolition), multiplied 
H "(1952) SCR 597
SUPREME COURT ADVOCATES-ON-RECORD 
323 
ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.] 
at a brisk rate, and currently numbered about 284. And many A 
of them, had hardly anything to do with land reforms. It was 
contended, that the decision rendered by this Court in l.C. 
Golak Nath v. State of Punjab41 , was a judicial reaction to the 
uninhibited insertions in the Ninth Schedule, leading to 
completely eclipsing fundamental rights. It therefore came to B 
be held in the I. C. Golak Nath case41 , that Parliament by way 
of constitutional amendment( s) could not take away or abrjdge 
fundamental rights. 
45. To project his contention, pertaining to tension and c 
friction between the judiciary and the other two wings of 
governance, it was submitted, that from 1950 to 1973, there. 
was virtually no attempt by the political-executive, to undermine 
or influence or dominate over the judiciary. It was pointed out, 
. that during the aforesaid period, when Jawaharlal Nehru (upto o 
27th May, 1964 ), Gulzari Lal Nanda (upto 9th June, 1964 ): Lal 
Bahadur Shastri (upto 11 1h January, 1966), Gulzari Lal Nanda 
(upto 24th January, 1966) .and Indira Gandhi (upto 1972) were 
running the executive and political governance in India, in their 
capacity as Prime Minister, had not taken any steps to 
E 
dominate over the judiciary. Thereafter, two facts could not be 
digested by the political-executive leadership. The first, the 
abolition of the Privy Purses ~Yan executive fiat, which
was 
invalidated by the. Supreme Court in Madhavrao Scindia 
Bahadur v. Union of lndia42• And the second, the fundamental 
F 
rights case, namely, the Kesavananda Bharati case10, wherein 
the Supreme Court by a majority of 7:6, had propounded the 
doctrine of "basic structure" of the Constitution, which limited 
the amending power of the Parliament, under Article 368. As 
a sequel to the above judgments, the executive attempted to G 
intimidate the judiciary, by the first supersession in the Supreme 
Court on 25.4.1973. Thereafter, internal emergency was 
41 AIR 1967 SC 1643 
42 (1971) 1 sec a5 
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[2015) 13 S.C.R. 
A declared on 25.06.1975, which continued till 21.03.1977. ltwas 
submitted, that during the emergency, by way of constitutional 
amendment(s), the power of judicial review vested in the higher 
judiciary, was sought to be undermined. It was submitted, that 
the intrusion during the emergency came to be remedied when 
B the Janata Party came to power on 22.03.1977, through the 
43rd and 44th Constitutional Amendments, which restored 
judieial review, to the original position provided for by the 
Constituent Assembly. 
c 
46. It was submitted, that in the recent past also, the 
exercise of the power of judicial review had been inconvenient 
for the political-executive, as it resulted in exposing a series 
of scams. In this behalf, reference was made to two judgments 
rendered by this Court, i.e., Centre for Public Interest Litigation 
o v. Union of lndia43, and Manohar Lal Sharma v. Principal 
Secretary«. It was submitted, that the executive and the 
legislature can never appreciate that the power of judieial 
review has been exercised by the higher judiciary, as a matter 
of public trust. As a sequel to the above two judgments, it was 
E pointed out, that an amount of approximately Rupees two lakh 
crores (Rs. 20,00,00,00,00,000/-) was gained by the public 
exchequer, for just a few coal block allocations (for which 
reliance was placed on an article which had appeared in the 
Indian Express dated 10.3.2015). And an additional
amount 
F of 
Rupees 
one 
lakh 
ten 
thousand 
crores 
(Rs.11,00,00,00,00,000/-) was gained by the public exchequer 
from the spectrum auction (for which reliance was placed on 
an article in the Financial Express dated 25.03.2015). It was 
submitted, that the embarrassment faced by the political-
G executive, has over shadowed the monumental gains to the 
nation. It was contended, that the Constitution (99th 
Amendment)Act, and the NJACAct, were truthfully a political-
" (2012) 3 sec 1 
H "(2014) 2 sec 532
SUPREME COURT ADVOCATES-ON-RECORD 
325 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
executive device, to rein in the power of judicial review, to avoid A 
such discomfiture. 
4 7. It was also contended, that while adjudicating upon · 
the present controversy, it was imperative for this Court, to take 
into consideration the existing socio:.political conditions, the 
8 
ground realities pertaining to the awareness of the civil society, 
and the relevant surrounding circumstances. These 
components, accordfng to learned counsel, were described 
as relevant considerations, for a meaningful judicial verdict in 
the V.G. Row case40• Referring to Shashikant Laxman Kale v. c 
Union of lndia45, it was contended, that for determining the 
purpose or the object of the legislation, it was permissible for 
a Court to look into the circumstances which had.prevailed at 
the time when the law was passed, and events which had 
necessitated the passing of the legislation. Referring to the D 
judgment rendered by this Court, in Re: the Special Courts 
Bill, 197846, learned counsel placed emphatic reliance on the 
following: 
"106. The greatest trauma. of our times, for a developing 
country of urgent yet tantalising imperatives, is the 
E 
dismal, yet die-hard, poverty of the masses and the 
democratic, yet graft-riven, way of life of power-wielders. 
Together they blend to produce gross abuse geared to 
personal aggrandizement, suppression of exposure and 
a host of other horrendous,
yet hidden, crimes by the 
F 
summit executives, pro tern, the para-political 
manipulators and the abetting bureaucrats. And the rule 
of law hangs limp or barks but never bites. An 
anonymous poet .sardonically projected the social G 
dimension .of this systemic deficiency: 
The law locks up both man and woman 
Who.steals the goose from off the common, 
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B 
c 
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SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
But lets the greater felon loose 
Who steals the common from the goose. 
107. The impact of 'summit' crimes in the Third World 
setting is more terrible than the Watergate syndrome 
as perceptive social scientists have unmasked. 
Corruption and repression-cousins in such situations-
hijack developmental processes.And, in the long run, 
lagging national progress means ebbing people's 
confidence in constitutional means to social justice. And 
so, to track down and give short shrift to these heavy-
weight criminaloids who often mislead the people by 
public moral weight-lifting and multipoint manifestoes 
is an urgent legislative mission partially undertaken by 
the Bill under discussion. To punish such super-offenders 
in top positions, sealing off legalistic escape routes and 
dilatory strategies and bringing them to justice with high 
speed and early finality, is a desideratum voiced in vain 
by Commissions and Committees in the past and is a 
dimension of the dynamics of the Rule of Law. This Bill, 
hopefully but partially, breaks new ground contrary to 
people's resigned cynicism that all high-powered 
investigations, reports and recommendations end in 
legislative and judicative futility, that all these valiant 
exercises are but sound and fury signifying nothing, that 
'business as usual' is the signature tune of public 
business, heretofore, here and hereafter. So this social 
justice measure has my
broad assent in moral principle 
and in constitutional classification, subject to the serious 
. infirmities from which it suffers as the learned Chief 
Justice has tersely sketched. Whether this remedy will 
effectively cure the malady of criminal summitry is for 
the future to tell. 
108. All this serves as a backdrop. Let me unfold in fuller 
" (1990) 4 sec 366 
H 
"(1979) 1 sec 380
SUPREME COURT ADVOCATES-ON-RECORD 
327 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
argumentation my thesis that the Bill. good so far as it A 
goes. is bad so far as it does not go-saved though by a 
pragmatic exception I will presently explain. Where the 
proposed law excludes the pre-and post-emergency 
··crime-doers in the higher brackets and picks out only 
'Emergency' offenders. its benign purpose perhaps 
B 
becomes a crypto cover up of like criminals before and 
after.· An 'ephemeral' measure to meet a perennial 
menace is neither a logical step nor national fulfilment. 
The classification. if I may anticipate my conclusion. is 
on the brink of constitutional break-down at that point C 
and becomes almost vulnerable to the attack of 
Article 14. 
xxx 
xxx 
xxx' 
114. The crucial test is 'All power is a trust'. its holders D 
are 'accountable for its exercise'. for 'from the people. 
and for the people. all springs. and all must exist'. By 
this high and only standard the Bill must fail morally if it 
exempts non-Emergency criminals about whom prior 
Commission Reports, now asleep in official pigeon 
E 
holes. bear witness and future Commission Reports 
(who knows?) may. in time. testify. In this larger 
perspective, Emergency is not a substantial differentia 
and the Bill nearly recognises this by ante-dating the 
operation to February 27, ·1975 when there was no 
F 
'Emergency'. Why ante-date if the 'emergency' was the 
critical criterion? 
xxx 
xxx 
xxx 
117.
Let us take a close look at the 'Emergency', the 
vices it bred and the nexus they have to speedier justice, G 
substantial enough to qualify for reasonable sub-
classification. Information flowing from _the proceedings 
and reports of a bunch of high-powered judicial 
commissions shows that during that hushed spell, many 
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SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
suffered shocking treatment. In the words of the 
Preamble, civil liberties were withdrawn to a great extent, 
important fundamental rights of the people were 
suspended, strict censorship on the press was placed 
andjudicial powers were curtailed to a large extent. . 
xxx 
xxx 
xxx 
128. 
Let us view the problem slightly differently. Even 
if liberty had not been curtailed, press not gagged or 
writ jurisdiction not cut down, criminal trials and appeals 
and revisions would have taken their own interminable 
delays. It is the forensic delay that has to be axed and 
that has little to do with the vices of the Emergency. Such 
crimes were exposed by judicial commissions before, 
involving Chief Ministers and Cabinet Ministers at both 
levels and no criminal action followed except now and 
that of a select group. It was lack of will-not Emergency-
that was the villain of the piece in non-prosecution of 
cases revealed by several Commissions like the 
Commission of Enquiry appointed by the Government 
of Orissa in 1967 (Mr. Justice Khanna), the Commission 
of Enquiry appointed by the Government of J&K in 1965 
(Mr. Justice Rajagopala Ayyangar), the Mudholkar 
Commission against 14 ex-United Front Ministers 
appointed by the Government of Bihar in 1968 and the 
T.L. Venkatarama Aiyar Commission of Inquiry 
appointed by the Government of Bihar, 1970-to mention 
but some. We need hardly say that there is no law of
limitation for criminal prosecutions. Somehow, a few 
manage to be above the law and the many remain below 
the law. How? - I hesitate to state." 
Last of all, reliance was placed on the decision of this 
Court in Subramanian Swamy v. Director, Central Bureau of 
lnvestigation47 , wherein this Court extensively referred to the 
H 
"(2014) a sec ss2
SUPREME COURT ADVOCATES-ON-RECORD 
329 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
conditions regarding corruption which prevailed in the country. A 
For the above purpose, it took into consideration the view 
expressed by the N.N. Vohra Committee Report, bringing out 
the nexus between the criminal syndicates and mafia. 
48. Reliance was, then placed on the efforts made by 8 
the executive on the death of the first Chief Justice of India 
(after the promulgation of the Constitution), when Patanjali 
Sastri, J., who was the senior most Judge, was sought to be 
overlooked. Relying on recorded texts in this behalf, by 
Granville Austin, George H. Gadbois Jr. and M.C. Chagia, it c 
was submitted, that all the six Judges, at that time, had 
threatened to resign, if the senior most Judge was ~verlooked 
for appointment as Chief Justice of India. 
49. Referring to the first occasion, when the convention 
was broken, by appointing AN. Ray, J., as the Chief Justice of D 
India, it was submitted, that the supersession led to public 
protest, including speeches by former Judges, former 
Attorneys General, legal luminaries and members of the Bar, 
throughout the country. M. Hidayatullah, CJ., in a public speech, 
complimented the three Judges, who were superseded, for E 
having resigned from their office, immediately on the 
appointment of AN. Ray, as Chief Justice of India. In the speech 
delivered by M. Hidayatullah, CJ., he made a reference about 
rumors being afloat, that
the senior most Judge after him, 
F 
namely, J.C. Shah, J., would not succeed him as the Chief 
Justice of India.And that, an outsider was being broughtto the 
Supreme Court, as its Chief Justice. His speech highlighted 
the fact, that all except one sitting Judge of the Supreme Court 
had agreed to resign in the event of supersession of J.C. Shah, G 
J .. He had also pointed out, in his speech, that if the decision 
was taken by the executive, even a day before his retirement, 
he too would join his colleagues in resigning from his position 
as the Chief Justice of India. It was accordingly submitted, that 
~ 
the constitutional convention, that the senior most Judge of H
330 
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A 
the Supreme Court would be appointed as the Chief Justice 
of India, was truly and faithfully recognized as an impregnable 
convention. To support the aforesaid contention, it was also 
pointed out, that even in situations wherein the senior most 
puisne Judge would have a very short tenure, the convention 
B had remained unbroken, despite the inefficacy of making such 
appointments. In this behalf, the Court's attention was drawn 
to the fact that J.C. Shah, CJ.(had a tenure of 35 days), K.N. 
Singh, CJ. (had a tenure of 18 days) and S. Rajendra Babu, 
CJ. (had a tenure of 2g days). 
c 
50. It was also the contention of the learned senior 
counsel, th.at the executive is an important litigant and 
stakeholder before the higher judiciary, and as such, the 
executive ought to have no role, whatsoever, in the matter of 
o appointn]ents/transfers of Judges to the higher judiciary. In 
this behalf, learned counsel placed reliance on a number of 
judgments rendered by this Court, wherein \he participation of 
the executive in the higher judiciary, had been held to be 
unconstitutional, in the matter of appointments of Judges and 
· E other Members of tribunals, vested with quasi judicial functions. 
It was submitted, that the inclusion of the Union Minister in 
charge of Law and Justice in the NJAC, was a clear breach of 
the judgments rendered by this Court. Additionally, it was 
pointed out, that two "eminent persons", who were
to be 
F essential components of the NJAC, were to be selected by a 
Committee, wherein the dominating voice was that of the 
political leadership. It was pointed out, that in the three-
MemberCommiltee authorised to nominate "eminent persons" 
included the Prime Minister and the Leader of the Opposition 
G in the Lok Sabha, besides the Chief Justice of India. It was 
therefore submitted, that in the six-Member NJAC, three 
Members would have political-executive lineage. This aspect 
of the matter, according to the learned counsel, would have a 
H devastating affect. It would negate primacy of the higher
SUPREME COURT ADVOCATES~ON-RECORD 
331 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
judiciary, and the same would result in undermining the A 
"independence of the judiciary". Based on the above 
foundation, learned senior counsel raised a number of 
contentions. Firstly, it was submitted, that through the 
impugned constitutional amendment and the NJAC Act, the 
constitutional convention in this country, that the senior most B 
Judge of the Supreme Court would be appointed as the Chief 
Justice of India, had been breached. It was submitted, that the 
aboye convention had achieved the status of a constitutional 
axiom - a constitutional principle. To substantiate the above 
contention, it was submitted, that right from 26.01.1950, the 
C 
senior most puisne Judge of the Supreme Court has always 
· been appointed as the Chief Justice of India except on two 
occasions. Firstly, the above convention was breached, when 
A.N. Ray, J., was appointed as Chief Justice of India on 0 
25.4.1973, by superseding three senior fDOSt Judges. It was 
submitted, that the aforesaid supersession was made on the 
day following the Supreme Court delivered the judgment in 
the KesavanandaBharati case10• Secondly, the supersession 
took place during the internal emergency declared by Prime 
E 
Minister, Indira Gandhi. At that juncture, M.H. Beg, J., was. 
appointed as Chief Justice of India on 29.1.1977, by 
superseding his senior H.R Khanna, J .. It was contended, 
that the aforesaid two
instances should be considered as 
aberrations, in the convention pertaining to appointment of 
F 
Chief Justice of India. 
51. Mr. Arvind P. Datar also assailed the constitutional 
validity of Article 124C, introduced by the Constitution (99th 
Amendment) Act. It was submitted, that the Parliament was 
delegated with the authority to "regulate the procedure for the G 
appointment of the Chief Justice of India and other Judges of 
the Supreme Court, and the Chief Justices and other Judges 
of the High Courts". And the NJAC was empowered to lay 
down, by regulation, "the procedure of discharging its own 
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A functions, the manner of selection of persons for appointment, 
and such other matters, as may be considered necessary by 
it". It was the contention of the learned counsel, that the 
delegation of power contemplated under Article 124C, 
amounted to vesting the NJAC, with what was earlier vested 
B with the Chief Justice of India. In this behalf, reference was 
also made to Sections 11, 12 and 13 of the NJAC Act. The 
.power to make rules, has been vested with the Central 
Government under Section 11, and the power to make 
regulations has been entrusted to the NJAC under Secfion 
C 12. The aforementioned rules and regulations, as drawn by 
the Central Government/NJAC, are required to be placed 
before the Parliament under Section 13, and only thereafter, 
the rules and regulations were to be effective (or not to have 
0 any effect, or to have effect as modified). It was submitted, 
that the entrustment of the procedure of appointment of Judges 
to the higher judiciary, and also, the action of assigning the 
manner in which the NJAC would discharge its functions (of 
selecting Judges to the higher judiciary), with either the 
E executive or the legislature, was unthinkable, if "independence 
of the judiciary" was to be maintained. It was pointed out, that 
the intent behind Article 124C, in the manner it had been 
framed, stood clearly exposed, by the aforesaid provisions of 
the NJACAct. 
F 
52. Reference was also made to
Section 12 of the NJAC 
Act, to highlight, that the NJAC had been authorized to notify 
in the Official Gazette, regulations framed by it, with the 
overriding condition, that the regulations so framed by the 
NJAC were to be consistent with the provisions of the NJAC 
G Act, as also, the rules made thereunder (i.e., under Section 11 
of the NJAC Act). Having so empowered the NJAC (under 
Sections 11 and 12 referred to above), and having delineated 
in Section 12(2), the broad outlines with reference to which 
the regulations could be framed, it was submitted, that the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
333 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
power to delegate the authority to frame regulations clearly A 
stood exhausted. In that, the Parliament had no jurisdiction 
thereafter, to interfere in the matter of framing regulations. In 
fact, according to the learned counsel, consequent upon the 
empowerment of the NJAC to frame regulations, the Parliament 
was rendered functus officio, on the issue of framing 
B 
regulations. According to learned counsel, the above also 
established, the inference drawn in the foregoing paragraph. 
53. It was also the contention of the learned counsel, that 
the NJAC constituted, by way of the Constitution (99th c 
Amendment) Act, would be sustainable, so long as it did not 
violate the "basic structure" of the Constitution. It was 
emphasized, that one of the recognized features of the "basic 
structure" of the Constitution was, the "independence of the 
judiciary". The procedure which the NJAC could adopt for D 
discharging its functions, and the procedure it was liable to 
follow while holding its meetings, and the ambit and scope 
with reference to which the NJAC was authorized to frame its 
regulations, had to be left to the exclusive independent will of 
an independent NJAC. That, according to learned counsel, 
E 
would have ensured the "independence of the NJAC". It was 
accordingly contended, that Article 124C breached the 
"independence of the judiciary", and also, undermined the
independence of the NJAC. 
54. The next contention advanced at the hands of the F 
learned counsel, was with reference to clause (2) of Article 
124A, whereby judicial review was barred, with reference to 
actions or proceedings of the NJAC, on the ground of the 
existence of a vacancy or defect in the constitution of the 
G 
NJAC. Learned counsel then invited this Court's attention to 
the exclusion of the power of judicial review, contemplated under 
Articles 323A(2)(d) and 323B(3)(d), wherein the power of 
judicial review was similarly excluded. It was submitted, that 
this Court struck down a similar provision in ttie aforesaid 
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A 
Articles, holding that the same were violative of the "basic 
structure" of the Constitution. In this behalf, learned counsel 
placed reliance on the decision of this Court in the Kihoto . 
Hollohan case34, and referred to the following observations 
B 
c 
D 
E 
F 
G 
H 
recorded therein: 
"129. The unanimous opinion according to the majority as 
well as the minority is that Paragraph 7 of the Tenth 
Schedule enacts a provision for complete exclusion of 
judicial review including the jurisdiction of the Supreme 
Court under Article 136 and of the High Courts under 
Articles 226 and 227 of the Constitution and therefore, it 
makes in terms and in effect a change in Articles 136, 226 
and 227 of the Constitution which attracts the proviso to 
clause (2) of Article 368 of the Constitution: and, therefore. 
ratification by the specified number of State legislatures 
before the Bill was presented to the President for his assent 
was necessarv. in accordance therewith. The majority view 
is that in the absence of such ratification by the State 
legislatures, it is Paragraph 7 alone of the Tenth Schedule 
which is unconstitutional; and it being severable from the 
remaining part of the Tenth Schedule, Paragraph 7 alone 
is liable to be struck down rendering the Speakers' decision 
under Paragraph 6 that of a judicial tribunal amenable to 
judicial review by the Supreme Court and the High Courts 
under Articles 136, 226 and 227. The
minority opinion is 
that the effect of invalidity of Paragraph 7 of the Tenth 
Schedule is to invalidate the entire Constitution (Fifty-
second Amendment) Act, 1985 which inserted the Tenth 
Schedule since the President's assent to the Bill without 
prior ratification by the State legislatures is non est. The 
minority view also is that Paragraph 7 is not severable from 
the remaining part of the Tenth Schedule and the Speaker 
not being an independent adjudicatory authority for this 
purpose as contemplated by a basic feature of democracy,
SUPREME COURT ADVOCATES-ON-RECORD 
335 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the remaining part of the Tenth Schedule is in excess of A 
the amending powers being violative of a basic feature of 
the Constitution. In the minority opinion, we have held that 
the entire Constitution (Fifty-second Amendment) Act, 1985 
is unconstitutional and an abortive attempt to make the 
constitutional amendment indicated therein." 
B 
Reliance was also placed on the following conclusions 
recorded by this Court in Dr. Kashinath G. Jalmi v. The 
Speaker48• 
"43. In Kihoto Hollohan there was no difference between c 
the majority and minority opinions on the nature of finality 
attaching to the Speaker's order of disqualification made 
under para 6 of the Tenth Schedule, and also that para 7 
therein was unconstitutional in view of the non-compliance 
of the proviso to clause 2 of Article 368 of the Constitution, 
D 
by which judicial review was sought to be excluded. The 
main difference in the two opinions was, that according to 
the majority opinion this defect resulted in the constitution 
standing amended from the inception with insertion of the 
Tenth Schedule minus para 7 therein. while according to 
E 
the minority the entire exercise of constitutional amendment 
was futile and an abortive attempt to amend the 
constitution sjnce Para 7 was not severable. According to 
the minority view, all decisions rendered by the several 
Speakers under the Tenth Schedule were,
therefore, nullity 
F 
and liable to be. ignored. According to the majority view, 
para 7 of the Tenth Schedule being unconstitutional and 
severable, the Tenth Schedule minus para 7 was validly 
enacted and, therefore, the orders made by the Speaker 
under the Tenth Schedule were not nullity but subject to 
G 
judicial review. On the basis of the majority opinion, this 
Court has exercised the power of judicial review over the 
orders of disgualification made by the speakers from the 
46 AIR 1993 SC 1873 
H
336 
A 
B 
c 
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SUPREME COURT REPORTS 
(2015]13S.C.R. 
very inception of the Tenth Schedule. and the exercise of 
judicial review has not been confined merely to the orders 
of disqualification made after 12th November. 1991 when 
the judgment in Kihoto Hollohan 11992 (1) SCC 309 ... ) was 
rendered. Venkatachaliah, J. (as he then was) wrote the 
majority opinion and, thereafter, on this premise, exercised 
the power of judicial review over orders of disqualification 
made prior to 12. 11. 1991. The basic fallacy in the 
submission made on behalf of the respondents that para 7 
must be treated as existing till 12th November, 1991 is that 
on that view there would be no power of judicial review 
against an order of disqualification made by the Speaker 
prior to 12th November, 1991 since para 7 in express terms 
totally excludes judicial review." 
It was, therefore, the vehement contention of the learned 
counsel, that clause (2) of Article 124Ashould be struck down, 
as being violative of the "basic structure" of the Constitution. 
55. Mr. Fali S. Nariman, learned senior counsel, also 
raised a purely technical plea. It was his contention, that 121 st 
E 
Constitution Amendment Bill, now the Constitution (99th 
Amendment) Act, was introduced in the Lok Sabha on 11th of 
August, 2014 and was passed by the Lok Sabha on 13th of 
August, 2014. It was further submitted, that the 121st 
Constitution Amendment Bill was discussed and passed by 
F Rajya Sabha on 14.8.2014. Thereupon,
the said Amendment 
Bill, which envisaged a constitutional amendment, was sent to 
the State Legislatures for ratification. Consequent upon its 
having been ratified by 16 State Legislatures, it was placed 
G before the President for his assent. It was pointed out, that the 
President accorded his assent on 31. 12.2014, whereupon, it 
became the Constitution (99th Amendment) Act. Learned 
counsel then invited our attention to Section 1 of the 
Constitution (99th Amendment) Act, which reads as under: 
H
SUPREME COURT ADVOCATES-ON-RECORD 
337 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"1 (1) This Act may be called the Constitution (Ninety-
A 
ninthAmendment)Act, 2014. 
(2) It shall come into force on such date as the Central 
Government may, by notification in the Official Gazette, 
appoint." 
Based on the aforesaid provision, it was contended, that B 
in spite of having received the assent of the President on 
31.12.2014, the Constitution (99th Amendment) Act, would not 
come into force automatically. And that, the same would come 
into force in terms of the mandate contained in Section 1 (2), -
C 
" ... on such date as the Central Government may, by notification 
in the Official Gazette, appoint." It was submitted, that the 
Central Government notified the Constitution (99th 
Amendment) Act, in the Gazette of India Extraordinary on 
13.4.2015. Based on the aforesaid factual position, the 
D 
Constitution (99th Amendment) Act, came into force with effect 
from 13.4.2015. 
56. In conjunction with the factual position noticed in the 
foregoing paragraph, learned counsel pointed out, that the 
NJAC Bill, was also introduced in the Lok Sabha on 11.8.2014. 
E 
The Lok Sabha passed the Bill on 13.8.2014, whereupon, it 
was passed by the Rajya Sabha on 14.8.2014. Thereafter, 
the NJAC Bill received the assent of the President on 
31.12.2014, and became the NJAC Act. It was contended, 
that the enactment of the NJAC Act was based/founded on 
F 
the Constitution
(99thAmendment)Act. It was submitted, that 
since the Constitution (99thAmendment)Act, was brought into 
force on 13.4.2015, the consideration of the NJAC Bill and 
the passing of the NJAC Act prior to the coming into force of 
the Constitution (99th Amendment)Act, would render it stillborn 
G 
and therefore nugatory. The Court's attention was also invited 
to the fact, that the aforesaid legal infirmity, was noticed and 
raised during the course of the parliamentary debate pertaining 
to the NJAC Bill, before the Rajya Sabha. Learned counsel 
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[2015) 13 S.C.R. 
A 
invited this Court's attention to the following questions and 
answers, which are recorded on pages 442 to 533 with 
reference to the debates in the Rajya Sabha on 13.8.2014, 
and at pages 229 to 375 on 14.8.2014 (Volume 232 No.26 -
B 
c 
D 
E 
F 
G 
H 
and 27), as under: 
"that Mr. Sitaram Yechury, Member of Parliament, (Rajya 
Sabha) raised a constitutional objection (on August 13, 
2014) to the NJAC Bill saying: 
" ....... till the Constitution Amendment (121~ Bill) comes 
into effect. the Legislature. I would like to humbly submit, 
does not have the right to enact a Bill for the creation of a 
Judicial Commission for appointments." (page 488) 
''. ....... I am only asking you to seriously consider we are 
creating a situation where this proposal for creation of a 
Judicial Appointments Commission will become ultra vires 
of the Indian Constitution because our right to bring about 
a Bill to enact such a provision comes only after the 
Constitution Amendment Bill becomes effective." (page 
489) 
" ........ Therefore. you please consider what I am saying 
with seriousness. I want also the law Minister to consider 
it. Let it not be struck down later as ultra vires. So. let us 
give it a proper consideration." (Page-490) 
- The Leader of the Opposition (Shri Ghulam Nabi Azad) 
then said: 
"The leader of the opposition (Shri Ghulam Nabi Azad): Sir, 
I just want to say that Mr. Yechury has given a totally different 
dimension
to the entire thing. It is quite an eye opener for 
all of us that the entire legislation will become ultr vires. 
So, my suggestion is that before my colleague, Mr. Anand 
Sharma, speaks, I would request one thing. Of course, 
we have great lawyers from all sides here but I think one of 
the oldest luminaries in the legal profession is Mr. 
Parasaran. Before we all decide what to do, can we request
SUPREME COURT ADVOCATES-ON-RECORD 
339 
ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.] 
him to throw light on what Mr. Yechury has said? (Page-
A 
490) 
- Mr. K. Parasaran (Nominated Member) then gave his 
views saying: 
Shri K. Parasarn (contd.) ... Before ratification, if you take 
up the Bill and pass the Bill, today, it will be unconstitutional 
B 
and ultra vires. Because the power to make enactment, 
as we see, is only in the Articles. The Article 368 gives the 
power to .... 
)()()( 
)()()( 
)()()( 
Mr. Deputy Chairman: What I want to know is this. You 
C 
have mentioned that there are two provisions. Number 
one, if it is amended in a particular way, it can directly go to 
the President. If the amendment involves Chapter IV, part 
5, or Chapter V, etc., etc., it has to be ratified by half in the 
D 
Assemblies. Okay. I accept both of them. But do any of 
these objections object us from considering this Bill now? 
Tha1 is my question. 
Shri K. Parasaran: No. We don't have the legislative 
competence. (Page-492) 
- The Minister of Law and Justice then said: 
" ..... This Bill will become effective after ratification but the 
separate Bill is for guidance to the Legislatures as to how 
the entire structure has come into existence. Therefore. it 
E 
is not unconstitutional. We have got summary power under 
F 
Article 246 read with Entries 77 and 78, which is not a 
limited power. It is a plenary power, exhaustive power. This 
Parliament can pass any law with regard to
composition 
and organization of the Supreme Court; this Parliament 
can pass any law with regard to High Court composition. 
G 
That is not a limited power ......... " (Page-495) 
Mr. Deputy Chairman: Yes, I will come .... (interruptions) .... 
Now, Mr. Minister, the point is that you yourself admit that 
only after 50 per cent of the Assemblies have endorsed it 
by a Resolution can your Bill come into force, and after the 
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340 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
President has given assent. And then, you are saying that 
the Bill was passed along with this only as a guideline, so 
that Members of the Assemblies know what you are going 
to do. 
Shri Ravi Shankar Prasad: But it would become effective 
B 
after assent. That is all. 
c 
D 
E 
Mr. Deputy Chairman: That's what I am saying. It will 
become effective after six months. 
Now, I would like to know one thing from Mr. Parasaran. 
Article 246, according to him, (the Minister) gives absolute 
powers to Parliament to pass a legislation. Is there any 
provision in the Constitution, which prevents passing of 
such a Bill before the Constitutional Amendment is 
endorsed by the President? Is there any such provision? 
... (interruptions) .... I will come to you. Yes, Mr. Parasaran. 
(Page-495) 
- In response Mr. K. Parasaran then said: 
"Shri K. Parasaran: Sir, I would explain this. Now, we are 
concerned with Article 124 and a legislation under Article 
246 read with the relevant entries in the Seventh Schedule, 
pointed out by the Hon. Minister. Now, the Supreme Court 
has interpreted Article 124. We cannot pass an Act contrary 
to that judgment and, therefore, the need for amendment 
to the constitution. If the Constitution is not amended, then 
F 
we lack the legislative competence. There is no good of 
going to Article 246 and reading the entries. Had we the 
legislative competence, under Article 246 read with the 
entries ....
(Emphasis supplied) page495. 
Mr. Deputy Chairman: Then, how do you explain Article 
G 
246? 
. 
. 
Shri K. Parasaran: Suppose the Constitutional Amendment 
is passed, then can this Bill be introduced and discussed 
as it is? As a hypothetical case, if this Amendment Bill is 
not passed, can we introduce this Bill and pass it? We will 
H 
not be able to do it." (Emphasis supplied) (Page-496)."
SUPREME COURT ADVOCATES-ON-RECORD 
341 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
57. In other words, it was the contention of the learned 
A 
counsel, that the NJAC Bill was passed by both Houses of 
Parliament, when Parliament had no power, authority or 
jurisdiction to consider such a Bill, in the teeth of Articles 124(2) 
and 217(1 ), as enacted in the original Constitution. It was · 
submitted, that the passing of the said Bill, was in itself 
B 
unconstitutional, ultra vires and void, because the amended 
provisions contained in the Constitution (99th Amendment) Act, 
had not come into play. It was submitted, that the passing by 
the Lok Sabha, as also, by the Rajya Sabha of the 121 st 
Constitution Amendment Bill on 13/14.8.2014, and the 
C 
ratification thereof by 16 State Legislatures, as also, the assent 
given thereto by the President on 31.12.2014, would not bestow 
validity on the NJAC Act. This, for the simple reason, that the 
Constitution (99th Amendment) Act, was brought into force only D 
on 13.4.2015. In the above view of the matter, according to 
the learned counsel, till 13.4.2015, Articles 124(2) and 217(1) 
of the Constitution of India were liable to be read, as they were 
originally enacted. In the aforesaid context, it was submitted, 
that the NJAC Act could not have been passed, till the 
E 
unamended provisions of the Constitution were in force. And 
that, the mere assent of the President to the NJAC Act on 
31.12.2014, could not infuse
validity thereon. 
58. In order to substantiate the aforesaid contention, 
learned counsel placed reliance onA.K. Royv. Union of lndia49, 
F 
and invited our attention to the following: 
"45 The argument arising out of the provisions of 
Article 368(2) may be considered first. It provides that when 
a Bill whereby the Constitution is amended is passed by 
G 
the requisite majority, it shall be presented to the President 
who shall give his assent to the Bill, "and thereupon the 
Constitution shall stand amended in accordance with the 
terms of the Bill." This provision shows that a constitutional 
"(1982) 1 sec 271 
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342 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
amendment cannot have any effect unless the President 
gives his assent to it and secondly, that nothing more than 
the President's assent to an amendment duly passed by 
the Parliament is required, in order that the Constitution 
should stand amended in accordance with the terms of 
B 
the Bill. It must follow from this that the Constitution stood 
amended in accordance with the terms of the 44th 
Amendment Act when the President gave his assent to 
that Act on April 30, 1979. We must then turn to that Act for 
c 
D 
E 
F 
G 
H 
seeing how and in what manner the Constitution stood thus 
amended. The 44th Amendment Act itself prescribes by 
Section 1 (2) a pre-condition which must be satisfied before 
any of its provisions can come into force. That pre-condition 
is the issuance by the Central Government of a notification 
in the official gazette, appointing the date from which the 
Act or any particular provision thereof will come into force 
with power to appoint different dates for different provisions. 
Thus, according to the very terms of the 44th Amendment, 
none of its provisions can come into force unless and until 
the Central Government issues a notification as 
contemplated by Section 1 (2): 
46. There is no internal contradiction between the provisions 
of Article 368(2) and those of Section 1 (2) of the 44th 
Amendment Act. Article 368(2) lays down a rule of general 
application as to the date from which the
Constitution would 
stand amended in accordance with the Bill assented to by 
the President. Section 1(2) oftheAmendmentAct specifies 
the manner in which that Act or any of its provisions may 
be brought into force. The distinction is between the 
Constitution standing amended in accordance with the 
terms of the Bill assented to by the President and the date 
of the coming into force of the Amendment thus introduced 
into the Constitution. For determining the date with effect 
from which the Constitution stands amended in 
accordance with the terms of the Bill. one has to turn to
SUPREME COURT ADVOCATES-ON-RECORD 
343 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
• 
the date on which the President gave. or was obliged to 
A 
give. his assent to the Amendment. For determining the 
date with effect from which the Constitution. as amended. 
came or will come into force. one has to turn to the 
notification. if any, issued by the Central Government under 
Section 1 (2) of the Amendment Act. 
B 
4 7. The Amendment Act may provide that the amendment 
introduced by it shall come into force immediately upon 
the President giving his assent to the Bill or it may provide 
that the amendment shall come into force on a future date. 
Indeed, no objection can be taken to the constituent body C 
itself appointing a specific future date with effect from which 
the Amendment Act will come into force; and if that be so, 
different dates can be appointed by it for bringing into force 
different provisions of the Amendment Act. The point of the 
D 
matter is that the Constitution standing amended in 
accordance with the terms of the Bill and the amendment 
thus introduced into the Constitution coming into force are 
two distinct things. Just as a law duly passed by the 
legislature can have no effect unless it comes or is brought 
E 
into force. similarly. an amendment of the Constitution can 
have no effect unless it comes or is brought into force. 
The fact that the constituent body may itself specify a future 
date or dates with effect from which the Amendment
Act 
or any of its provisions will come into force shows that 
F 
there is no antithesis between Article 368(2) of the 
Constitution and Section 1(2) of the 44thAmendmentAct. 
The expression of legislative or constituent will as regards 
the date of enforcement of the law or Constitution is an 
integral part thereof. That is why it is difficult to accept the 
G 
submission that. contrary to the expression of the 
constituent will. the amendments introduced by the 44th 
Amendment Act came into force on April 30. 1979 when 
the President gave his assent to that Act. The true position 
is that the amendments introduced by the 44th Amendment H
344 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Act did not become a part of the Constitution on April 30, 
1979. They will acquire that status only when the Central 
Government brings them into force by issuing a notification 
under Section 1 (2) of the Amendment Act." 
59. It was also the contention of Mr. Fali S. Nariman, 
B 
that just as a constitutional amendment was liable to be 
declared as ultra vires, if it violated and/or abrogated, the "core" 
or the "basic structure" of the Constitution; even a simple 
legislative enactment, which violated the "basic structure" of 
the Constitution, was liable to be declared as unconstitutional. 
C 
For the instant proposition, learned counsel referred to the 
Madras Bar Association case35, and placed reliance on the 
following observations recorded therein: 
D 
E 
"109. Even though we have declined to accept the 
contention advanced on behalf of the Petitioners, premised 
on the "basic structure" theory, we feel it is still essential 
for us, to deal with the submission advanced on behalf of 
the respondents in response. We may first record the 
contention advanced on behalf of the respondents. It was 
contended, that a legislation (not being an amendment to 
the Constitution), enacted in consonance of the provisions 
of the Constitution. on a subject within the realm of the 
legislature concerned, cannot be assailed on the ground 
that it violates the "basic structure" of the Constitution. For 
F 
the present controversy, the
respondents had placed 
reliance on Articles 245 and 246 of the Constitution, as also,, 
on entries 77 to 79, 82 to 84, 95 and 97 of the Union List of 
the Seventh Schedule, and on entries 11-A and 46 of the 
Concurrent List of the Seventh Schedule. Based thereon 
G 
it was asserted, that Parliament was competent to enact 
the NTT Act. For examining the instant contention. let us 
presume it is so. Having accepted the above, our 
consideration is as follows. The Constitution regulates the 
manner of governance in substantially minute detail. It is 
H 
the fountainhead distributing power. for such governance.
SUPREME COURT ADVOCATES-ON-RECORD 
345 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
The Constitution vests the power of legislation at the 
A 
Centre with the Lok Sabha and the Rajya Sabha, and in 
the States with the State Legislative Assemblies (and in 
some States, the State Legislative Councils, as well). The 
instant legislative power is regulated by "Part XI" of the 
Constitution. The submission advanced at the hands of B 
the learned counsel for the respondents, insofar as the 
instant aspect of the matter is concerned, is premised on 
the assertion that the NTT Act has been enacted strictly in 
consonance with the procedure depicted in "Part XI" of the 
Constitution. It is also the contention of the learned counsel 
for the respondents, that the said power has been exercised 
strictly in consonance with the subject on which the 
Parliament is authorized to legislate. Whilst dealing with 
c 
the instant submission advanced at the hands of the 
D 
learned counsel for the respondents, all that needs to be 
stated is. that the legislative power conferred under "Part 
XI" of the Constitution has one overall exception, which 
undoubtedly is that the "basic structure" of the Constitution. 
cannot be infringed, no matter what. On the instant aspect. E 
some relevant judgments rendered by Constitutional 
Benches of this Court, have been cited hereinabove. It 
seems to us, that there is a fine difference in what the 
petitioners contend, and what the respondents seek to
project. The submission advanced at the hands of the 
F 
learned counsel for the petitioners does not pertain to lack 
of jurisdiction or inappropriate exercise of jurisdiction. The 
submission advanced at the hands of the learned counsel 
for the petitioners pointedly is, that it is impermissible to 
leg~slate in a manner as would violate the "basic structure" 
G 
of the Constitution. This Court has repeatedly held that an 
amendment to the provisions of the Constitution would not 
be sustainable if it violated the "basic structure" of the 
Constitution, even though the amendment had been carried 
out by following the procedure contemplated under "Part 
H
346 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
. XI" of the Constitution. This leads to the d~termination that 
the "basic structure" is inviolable. In our view, the same 
would apply to all other legislations (other than amendments 
to the Constitution) as well, even though the legislation had 
been enacted by following the prescribed procedure. and 
B 
was within the domain of the enacting legislature. any 
infringement to the "basic structure" would be 
unacceptable. Such submissions advanced at the hands 
of the learned counsel for the respondents are. therefore 
c 
liable to be disallowed. and are accordingly declined." 
60. Mr. Arvind P. Datar, learned senior counsel, assailed 
the constitutional validity of various provisions of the NJAC 
Act, by advancing the same submissions, as were relied upon 
by him while assailing the constitutional validity of Articles 
0 
124A, 1248 and 124C. For reasons of brevity, the aforestated 
submissions noticed with reference to individual provisions of 
the NJAC Act are not being repeated again. 
61. A challenge was also raised, to the different 
provisions of the NJAC Act. First and foremost, a challenge 
E was raised to the manner of selection of the Chief Justice of 
India. Section 5(1) of the NJACAct, it was submitted, provides 
that the NJAC would recommend the senior most Judge of 
the Supreme Court, for being appointed as Chief Justice of 
India, subject to the condition, that he was considered "fit" to 
F 
hold the office.
It was contended, that the procedure to regulate 
the appointment of the Chief Justice of India, was to be 
determined by Parliament, by law under Article 124C. It was 
contended, that the term "fit", expressed in Section 5 of the 
G NJACAct, had not been elaborately described. And as such, 
fitness would have to be determined on the subjective. 
satisfaction of the Members of the NJAC. It was submitted, 
that even though the learned Attorney General had expressed, 
during the course of hearing, that fitness meant" ... mental and 
H . physical fitness alone ... ", it was always open to the Parliament
SUPREME COURT ADVOCATES-ON-RECORD 
347 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
to purposefully define fitness, in a manner as would sub-serve A 
the will of the executive. It was submitted, that even an ordinance 
could be issued without the necessity, of following the 
procedure, of enacting law. It was asserted, that the criterion 
of fitness could be defined and redefined. It was submitted, 
that it was a constitutional convention, that the senior most B 
Judge of the Supreme Court would always be appointed as 
Chief Justice of India. And that, the aforesaid convention had 
remained unbroken, even though in some cases the tenure of 
the appointee, had been short, and as such, may not have 
enured to the advantage, of the judicial organization as a whole. C 
Experience had shown, according to learned counsel, that 
adhering to the practice of appointing the senier most Judge 
as the Chief Justice of India, had resulted in institutional 
harmony amongst Judges, which was extremely important for D 
the health of the judiciary, and also, for the "independence of 
the judiciary". It was submitted, that it would be just and 
appropriate, at the present juncture, to understand the width of 
the power, so as to prevent any likelihood of its misuse in future. 
It was submitted, that various ways and means could be 
E 
devised to supersede Judges, and also, to bring in favourites. 
Past experience had shown, that the executive had abused its 
authority, when it departed
from the above rule in April 1973, 
by superseding J.M. Shelat, J., the senior most Judge and 
even the next two Judges in the order of seniority after him, 
F 
namely, K.S. Hegde and A.N. Grover, and appointed the fourth 
senior most Judge A.N Ray, as the Chief Justice of India. Again 
in January 1977 on the retirement of A.N. Ray, CJ., the senior 
most Judge H.R. Khanna, was ignored, and the next senior 
most Judge, M.H. Beg, was appointed as the Chief Justice of G 
India. Such control in the hands of the executive would cause 
immense inroads, in the decision making process. And could 
result in; Judges trying tO placate and appease the executive, 
for personal gains and rewards. 
H
348 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
62. The submission noticed above was sought to be 
illustrated through the following instance. It was pointed out, 
that it would be genuine and legitimate for the Parliament to 
enact, that a person would be considered fit for appointment 
as Chief Justice of India, only if he had a minimum remaining 
B 
tenure of at least two years. Such an enactment would have a 
devastating effect, even though it would appear to be 
innocuously legitimate. It was contended, that out of the 41 
Chief Justices of India appointed till date, only 12 Chief Justices 
of India, had a tenure of more than two years. Such action, at 
C the hands of the Parliament, was bound to. cause 
discontentment to those, who had a legitimate expectation to 
hold the office_of Chief Justice of India. It was submitted, that 
similar instances can be multiplied with dimensional alterations 
0 
by prescribing different parameters. It was submitted, that the 
Parliament should never be allowed the right to create 
uncertainty, in the matter of selection and appointment of the 
Chief Justice of India, because the office of the Chief Justice 
of India was pivotal, as it shouldered extremely serious and 
E 
onerous responsibilities. The exercise of the above authority, 
it was pointed out, could/would seriously affect the 
"independence of the judiciary". In the above context, reference 
was also made, to the opinion expressed by renowned 
persons, having vast
experience in the judicial institution, 
F 
effectively bringing out the veracity of the contention advanced. 
Reference in this regard was made to the observations of M.C. · 
Chagla, in his book, "Roses in December-An Autobiography'', 
wherein he examined the impact of supersession on Judges, 
who by virtue of the existing convention, were in line to be the 
G Chief Justice of India, but were overlooked by preferring a 
junior. Reference was also made to the opinion expressed by 
H.R. Khanna, J., (in his book- "Neither Roses Nor Thorns"). 
Finally, the Court's attention was drawn to the view expressed 
by H.M. Seervai (in "Constitutional Law of India -A Critical 
H Commentary'). It was submitted, that leaving the issue of 
/
SUPREME COURT ADVOCATES-ON-RECORD 
349 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
determination of fitness with the Parliament, was liable to fan 
A 
the ambitions of Judges, and would make them loyal to those 
who could satisfy their ambitions. It was therefore the 
contention of the learned counsel, that Section 5, which created 
an ambiguity in the matter of appointment of the Chief Justice 
of India, and could be abused to imperil "independence of the B 
judiciary'', was liable to be declared as unconstitutional. 
63. It was also the contention of the learned counsel for 
the petitioners, that on the issue of selection and appointment 
of Judges to the higher judiciary, the NJAC was liable to take c 
into consideration ability, merit and suitability (as may be 
specified by regulations). It was submitted, that the above 
criteria could be provided through regulatioi;is framed under 
Section 12(2)(a), (b) and (c). It was pointed out, that the 
regulations framed for determining the suitability of a Judge D 
(with reference to ability and merit), would be synonymous with 
the conditions of eligibility. Inasmuch as, a candidate who did 
not satisfy the standards expressed in the regulations, would 
also not satisfy, the prescribed conditions of appointment. It 
was asserted, that it would be a misnomer to treat the same to 
E 
be a matter of mere procedure. Thus viewed, it was contended, 
that the provisions of the NJAC Act, which laid down (or 
provided for the
laying down) substantive conditions for 
appointment, was clearly beyond the purview of Article 124C, 
inasmuch as, under the above provision, Parliament alone had F 
been authorised by law, to regulate the procedure for 
appointment of Judges of the Supreme Court, or to empower 
the NJAC to lay the same down by regulations, inter alia the 
manner of selection of persons for appointment, as Judges of 
the Supreme Court. It was submitted, that the NJAC Act, 
G 
especially in terms of Section 5(2), had travelled far beyond 
the jurisdictional parameters contemplated under Article 124C. 
64. It was also contended, that while recommending 
names for appointment of a Judge to the Supreme Court, 
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350 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
seniority in the cadre of Judges, was liable to be laken into 
consideration, in addition to ability and merit. It was submitted, 
that the instant mandate contained in the first proviso under 
Section 5(2) of the NJAC Act, clearly breached the "federal 
structure" of governance, which undoubtedly required regional 
B representation in the Supreme Court. Since the "federal 
structure" contemplated in the Constitution was also one of 
the "basic structures" envisioned by the framers of the 
Constitution, the same could not have been overlooked. 
c 
65. Besides the above, the Court's attention was invited 
to the second proviso, under Section 5(2) of the NJAC Act, 
which mandates that the NJAC would not make a favourable 
recommendation, if any two Members thereof, opposed the 
candidature of an individual. It was contended, that placing 
o the power of veto, in the hands of any two Members of the 
NJAC, would violate the recommendatory power expressed 
in Article 1248. In this behalf, it was contended, thatthe second 
proviso under Section 5(2), would enable two eminent persons 
(- lay persons, if the submission advanced by the learned 
E Attorney General is to be accepted) to defeat a unanimous 
opinion of the Chief Justice of India and the two senior most 
Judges of the Supreme Court. And thereby negate the primacy 
vested in the judiciary, in the matter of appointment of Judges 
to the higher judiciary. 
F 
66. It was
submitted, that the above power of veto 
. exercisable by two lay persons, or alternatively one lay person, 
in conjunction with the Union Minister in charge of Law and 
Justice, would cause a serious breach in the "independence 
G of the judiciary". Most importantly, itwascontended, thatneither 
the impugned constitutional amendment, nor the provisions of 
the NJAC Act, provide for any quorum for holding the meetings 
of the NJAC. And as such (quite contrary to the contentions 
advanced at the hands of the learned Attorney General), it was 
H contended, that a meeting of the NJAC could not be held,
SUPREME COURT ADVOCATES-ON-RECORD 
351 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
without the presence of the all Members of the NJAC. In order A 
to support his above contention, he illustratively placed reliance 
on the Constitution (122ndAmendment) Bill, 2014 [brought 
before the Parliament, by the same ruling political party, which 
had successfully amended the Constitution by tabling the 
Constitution (121 st Amendment) Bill, 2014]. The objective 
B 
sought to be achieved through the Constitution (122nd 
Amendment) Bill, 2014, was to insert Article 279A. The 
proposed Article 279A intended to create the Goods and 
Services Tax Council. Sub-Article (7) of Article 279A 
postulated, that" ... One-half of the total number of Members c 
of the Goods and Services Tax Council. .. " would constitute 
the quorum for its meetings. And furthermore, that" ... Every 
decision of the Goods and Services Tax Council shall be taken 
at a meeting, by a majority of not less than three-fourths of the D 
"weighted votes of the members present and voting ... ". Having 
laid down the above parameters, in the Bill which followed the 
Bill that led to the promulgation of the Constitution (99th 
Amendment) Act, it was submitted, that the omission of 
providing for a quorum for the functioning of the NJAC, and 
E 
the omission to quantify the strength required for valid decision 
' 
making, was not innocent. And that, it vitiated the provision 
itself. 
Ill. BESPONDENIS' RESPONSE, ON
MEBIJS: 
67. The learned Attorney General commenced his F 
response on merits by asserting, that there was no provision 
in the Constitution of India, either when it was originally drafted, 
or at any stage thereafter, which contemplated, that Judges 
would appoint Judges to the higher judiciary. It was accordingly G 
asserted, that the appointment of Judges by Judges was 
foreign to the provisions of the Constitution. It was pointed out, 
that there were certain political upheavals, which had 
undermined the "independence of the judiciary", including 
··executive overreach, in the matter of appointment and transfer H
352 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
of Judges of the higher judiciary, starting with supersession of 
senior Judges of the Supreme Court in 1973, followed by, the 
mass transfer of Judges of the higher judiciary during the 
emergency in 1976, and thereafter, the second supersession 
of a senior Judge of the Supreme Court in 1977. It was 
B acknowledged, that there was continuous interference by the 
executive, in the matter of appointment of Judges to the higher 
judiciary during the 1980's. Despite thereof, whilst adjudicating 
upon the controversy in the First Judges case rendered in 1981, 
this Court, it was pointed out, had remained unimpressed, and 
C 
reiterated the primacy of the executive, in the matter of 
appointment of Judges to the higher judiciary. 
68. It was pointed out, that the issue for reconsideration 
of the decision rendered in the First Judges case arose in 
o Subhash Sharma v. Union of lndia4, wherein the questions• 
considered were, whether the opinion of the Chief Justice of 
India, in regard to the appointment of Judges to the Supreme 
Court and High Courts, as well as, transfer of High Court 
Judges, was entitled to primacy, and also, whether the matter 
E of fixation of the judge-strength in High Courts, was justiciable? 
It was asserted, that the aforesaid two questions were placed 
for determination by a Constitution Bench of nine Judges 
(keeping in view the fact that the First Judges case, was 
decided by a seven-Judge Bench). It
was asserted, that the 
F 
decision rendered by this Court in the Second Judges case, 
was on the suo motu exercise of jurisdiction by this Court, 
wherein this Court examined matters far beyond the scope of 
the reference order. It was contended, that the Second Judges 
case was rendered, without the participation of all the 
G stakeholders, inasmuch as, the controversy was raised at the 
behest of practicing advocates and associations of lawyers, 
and there was no other stakeholder involved during its hearing. 
69. It was asserted, that the judiciary had no jurisdiction 
H to assume to itself, the role of appointment of Judges to the
SUPREME COURT ADVOCATES-ON-RECORD 
353 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
higher judiciary. It was pointed out, that it is the Parliament A 
alone, which represents the citizenry and the people of this 
country, and has the exclusive jurisdiction to legislate on 
matters. Accordingly, it was asserted, that the decisions in 
the Second and Third Judges cases, must be viewed as 
legislation without any jurisdictional authority. 
B 
70. It was pointed out, that the issue relating to the 
amendment of the Constitution, pertaining to the subject of 
appointment of Judges to the higher judiciary, through a Judicial 
Commission commenced with the Constitution (67 1h 
C 
Amendment) Bill, 1990. The Bill however lapsed. On the same 
subject, the Constitution (82nd Amendment) Bill, 1997 was 
introduced. The 1997 Bill, however, could not be passed. This 
was followed by the Constitution (98th Amendment) Bill, 2003 
which was introduced when the present Government was in 
D 
power. In 2003 itself, a National Commission was set up to 
review the working of the Constitution, followed by the Second 
Administrative Reforms Commission in 2007. Interspersed 
with the aforesaid events, were a number of Law Commission's 
Reports. The intention of the Parliament, since the introduction 
E 
of the Bill in 1990, it was submitted, was aimed at setting up a 
National Judicial Commission, for appointment and transfer 
of Judges of the higher judiciary. It was pointed out, that no
positive achievement was made in the above direction, for 
well over two decades. Mr. Justice M.N. Venkatachaliah, who 
F 
headed the National Commission to review the working of the 
Constitution, had also recommended a five-Member National 
Judicial Commission, whereby, a wide consultative process 
was sought to be introduced, in the selection and appointment 
of Judges. It was submitted, that all along recommendations G 
were made, for a participatory involvement of the executive, 
as well as the judiciary, in the matter of appointment of Judges 
to the higher judiciary. It was also pointed out, that the 
Constitution (981h Amendment) Bill, 2003 proposed a seven-
Member National Judicial Commission. Thereafter, the 
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354 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A Administrative Reforms Commission, proposed a eight-
Member National Judicial Commission, to be headed by the 
Vice-President, and comprising of the Prime Minister, the 
Speaker, the Chief Justice of India, the Law Minister and two 
leaders of the Opposition. The aforesaid recommendation, 
B was made by a Commission headed by Vee rap pa Moily, the 
then Union Law Minister. The present Constitution (99th 
Amendment) Act, 2014, whereby Article 124 has been 
amended_ and Articles 124A to 124C have been inserted in 
the Constitution, contemplates a six-Member National Judicial 
C Commission. It was submitted, that there was no justification 
in finding anything wrong, in the composition of the NJAC. To 
point out the safeguards against entry of undesirable persons 
into the higher judiciary, it was emphasized, that only if five of 
0 
the six Members of the NJAC recommended a candidate, he 
could be appointed to the higher judiciary. It was submitted, 
that the aforestated saf~guards, postulated in the amended 
provisions, would not only ensure transparency, but would also 
render a broad based consideration. 
E 
71. As a counter, to the submissions advanced on behalf 
of the petitioners, it was asserted, that the Parliament's power 
to amend the Constitution was plenary, subject to" only one 
restriction, namely, thatthe Parliament could not alter the "basic 
structure" of the Constitution. And as such, a constitutional 
F
amendment must be presumed to be constitutionally valid 
(unless shown otherwise). For the instant proposition, reliance 
was placed on Charanjit Lal Chowdhury v. Union of lndia50, 
Ram Krishna Dalmia v. Justice S.R. Tendolkar51, the 
Kesavananda Bharati case 10, (specifically the view expressed 
G by K.S. Hegde and A.K. Mukherjea, JJ.), B. Banerjee v. Anita 
Pan52, and Government of Andhra Pradesh v. P. Laxmi Devi53• 
50 AIR 1951 SC 41 
51 AIR 1958 SC 538 
02 (1975) 1 sec 166 
H 
,, (2008J 4 sec no
SUPREME COURT ADVOCATES-ON-RECORD 
355 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
72. It was asserted, that the Parliament was best A 
equipped to assess the needs of the people, and to deal with 
the changing times. For this, reliance was placed on Mohd. 
Hanif Quareshi v. State of Bihar54, State of West Bengal v. 
Anwar Ali Sarkar55• It was contended, that while enacting the 
Constitution (99th Amendment) Act, and the NJAC Act, the 
B 
Parliament had discharged a responsibility, which it owed to 
the citizens of ·this country, by providing for a meaningful 
process for the selection and appointment of Judges to the 
higher judiciary. 
73. Referring to the decisions rendered by this Court in 
the Second and Third Judges cases, it was asserted, that the 
way he saw it, there was only one decipherable difference 
introduced in the process of selection contemplated through 
c 
the NJAC. Under the system introduced, the judiciary could 
D 
not "insist" on the appointment of an individual. But the judiciary 
continued to retain the veto power, to stop the appointment of 
an individual considered unworthy of appointment. According 
to him, the nomination of a candidate, for appointment to the 
higher judiciary, under the above judgments, could also not E 
fructify, if any two members of the collegium, expressed an 
opinion against the nominated candidate. It was pointed out, 
that the above position had been retained in the impugned 
provisions. According to the learned
Attorney General, the only 
difference in the impugned provisions was, that the right of the 
F 
judiciary to "insist" on the appointment of a nominee, was no 
longer available to the judiciary. Under the collegium system, 
a recommendation made for appointment to the higher 
judiciary, could be returned by the executive for reconsideration. 
However, ifthe recommendation was reiterated, the executive G 
had no choice, but to appoint the recommended nominee. It 
was pointed out, that the instant right to "insist" on the 
54 AIR 1958 SC 731 
55 1952 SCR 284 
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356 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A appointment of a Judge, had now been vested in the NJAC. It 
was vehemently contended, that the denial to "insist", on the 
appointment of a particular nominee, would surely not 
undermine the "independence of the judiciary". The 
"independence of the judiciary", according to the learned 
B Attorney General, would be well preserved, if the rightto "reject" 
a nominee was preserved with the judiciary, which had been 
done. 
7 4. Based on the aforesaid submission, it was asserted, 
c that the process initiated by the Parliament in 1990 (for the 
introduction of a Commission, for appointment of Judges to 
the higher judiciary), had taken twenty-four years to fructify. The 
composition of the NJAC introduced through the Constitution 
(99th Amendment) Act, according to him, meets with all 
o constitutional requirements, as the same is neither in breach 
of the rule of "separation of powers", nor that of "the 
independence of the judiciary". It was contended, that the 
impugned provisions preserve the "basic structure" of the 
Constitution. 
E 
75. It was submitted, that the assailed provisions had 
only introduced rightful checks and balances, which are inherent 
components of an effective constitutional arrangement. The 
learned Attorney General also cautioned this Court, by 
F asserting, that it was neither within the domain of the petitioners, 
nor of this Court, to suggest an alternative combination of 
Members for the NJAC, or
an alternative procedure, which 
would regulate its functioning more effectively. Insofar as the 
present petitions are concerned, it was asserted, that the 
G challenge raised therein, could only be accepted, if it was 
shown, that the Parliament while exercising its plenary power 
to amend the Constitution, had violated the "basic structure" 
of the Cor:istitution. 
76. It was submitted, that it was not the case of any of the 
H petitioners before this Court, either that the Parliament was
SUPREME COURT ADVOCATES-ON-RECORD 
357 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
not competent to amend Article 124, or that the procedure A 
prescribed therefor under Article 368 had not been followed. 
In the above view of the matter, it was submitted, that the only 
scope for examination with reference to the present 
constitutional amendment was, whether while making the 
aforestated constitutional amendment, the Parliament had 
B 
breached, any of the "basic features" of the Constitution. 
77(i). For demonstrating the validity of the impugned 
constitutional amendment, reliance in the first instance was 
placed on the Kesavananda Bharati case 10• Reference was c 
made to the observations of S.M. Sikri, CJ., to contend, that 
the extent of the amending power under Article 368 was duly 
adverted to. Reading the preamble to the Constitution, it was 
pointed out, that the fundamental importance expressed 
therein was, the freedom of the individual, and the inalienability o 
of economic, social and political justice, as also, the 
importance of the J?irective Principles (paragrap,h 282). In this 
behalf, it was also submitted, that the "fundamental features" 
of the Constitution, as for instance, secularism, democracy and 
the freedom of the individual would always subsist in a welfare 
E 
State (paragraph 283). Leading to the conclusion, that even 
fundamental rights could be amended in public interest, subject 
to the overriding condition, that the same could not
be 
completely abrogated (paragraph 287). In this behalf, it was 
also pointed out, that the wisdom of the Parliament to amend 
F 
the Constitution could not be the subject matter of judicial review 
(paragraph 288), leading to the overall conclusion, that by the 
process of amendment, it was open to the Parliament to adjust 
fundamental rights, in order to secure the accomplishment of 
the Directive Principles, while maintaining the freedom anq G 
dignity of every citizen (paragraph 289). Thus viewed, it was 
felt, that the rightful legal exposition would be, that even though 
every provision of the Constitution could be amended, the 
contemplated amendment should ensure, that the "basic 
H
358 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A foundation and structure" of the Constitution remained intact. 
In this behalf, an illustrative reference was made to the features, 
which constituted the "basic structure" of the Constitution. 
According to the learned Attorney General, they included, the 
supremacy of the Constitution, the republican and democratic 
B form of Government, the secular character of the Constitution, 
the "separation of powers" between the legislature, the 
executive and the judiciary, and the federal character of the 
Constitution (paragraph 292). In addition to the above, it was 
asserted, that India having signed the Universal Declaration 
C of Human Rights, had committed itself to retaining such of the 
fundamental rights, as were incorporated in the above 
declaration (paragraph 299). In the above view, according to 
the Attorney General, the expression "amendment of this 
0 
Constitution" would restrain the Parliament, from abrogating 
the fundamental rights absolutely, or from completely changing 
the "fundamental features" of the Constitution, so as to destroy 
its identity. And that, within the above limitation, the Parliament 
could amend every Article of the Constitution (paragraph 475). 
E 
It was insisted, that the impugned provisions had not breached 
any of the above limitations. 
(ii) Reference was then made to the common opinion 
expressed by J.M. Shelat and A.N. Grover, JJ., (in the 
Kesavananda Bharati case 10) to assert, that
one of the 
F 
limitations with reference to the amendment to the Constitution 
was, that it could not be amended to such an extent, as would 
denude the Constitution of its identity (paragraph 537). It was 
submitted, that the power to amend, could not result in the 
abrogation of the Constitution, or lead to the framing of a new 
G Constitution, or to alter or change the essential elements of 
the constitutional structure (paragraph 539). It was pointed 
out, that it was not proper, to give a narrow meaning to the 
power vested in the Parliament to amend the Constitution, and 
H at the same time, to give it such a wide meaning, so as to
SUPREME COURT ADVOCATES-ON-RECORD 
359 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
enable the amending body, to change the structure and identity A 
of the Constitution (paragraph 546). With reference to the 
power of judicial review, it was contended, that there was ample 
evidence in the Constitution itself, to indicate that a system of 
"checks and balances" was provided for, so that none of the 
pillars of governance would become so predominant, as to 
B 
disable the others, from exercising and discharging the 
functions entrusted to them. It was submitted, that judicial 
review, provided expressly through Articles 32 and 226, was 
an incident of the aforestated system of checks and balances 
(paragraph 577). Based on the historical background, the C 
preamble, the entire scheme of the Constitution, and other 
relevant provisions thereof, including Article 368, it was 
submitted that it could be inferred, that the supremacy of the 
Constitution, the republican and democratic form of D 
Government, sovereignty of the country, the secular and federal 
character of the Constitution, the demarcation of powers 
between the legislature, the executive and the judiciary, the 
dignity of the individual secured through the fundamental rights, 
and the mandate to build a welfare State (contained in Parts Ill 
E 
and IV), and the unity and the integrity of the nation, could be 
regarded as the "basic elements" of the constitutional structure 
(paragraph 582). It was also
asserted, that as a society grows, 
its requirements change, and accordingly, the Constitution and 
the laws have to be changed, to suit the emerging needs. And 
F 
accordingly, the necessity to amend the Constitution, to adapt 
to the changing needs, arises. Likewise, in order to implement 
the Directive Principles, it could be necessary to abridge some 
of the fundamental rights vested in the citizens. The power to 
achieve the above objective needed, a broad and liberal G 
interpretation of Article 368. Having so held, it was concluded, 
that even the fundamental rights could be amended (paragraph 
634 ). Reference was made to the fact, that the founding fathers 
were aware, that in a changing world, there would be nothing 
permanent, and therefore; they vested the power of H
360 
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A 
amendment in the Parliament through Article 368, so as to 
keep the Constitution in tune with, the changing concepts of 
politics, economics and social ideas, and to so reshape the 
Constitution, as would meet the requirements of the time 
(paragraph 637). With reference to the above, it was 
B contended, that the Parliament did .not have the power to 
abrogate or emasculate the "basic elements" or "fundamental 
features" of the Constitution, such as the sovereignty of India, 
the democratic character of our polity, the unity of the country, 
and the essential elements of the individual freedoms secured 
C to the citizens. Despite the above limitations, it was pointed 
out, that the amending power under Article 368 was wide 
enough, to amend every Article of the Constitution, so as to 
reshape the Constitution to fulfill the obligations imposed on 
0 
the State (paragraph 666).And accordingly, it was pointed out, 
that while recording conclusions, this Court had observed, that 
the power to amend the Constitution under Article 368 was 
very wide, yet did not include the power to destroy, or 
emasculate the "basic elements" or the "fundamental features" 
E of the Constitution (paragraph 7 44 ). 
(iii). Reference was then made to the observations of 
H.R. Khanna, J. (in the Kesavananda Bharati case 10). It was 
pointed out, that from 1950 to 1967 till th is Court rendered the 
judgment in the l.C. Golak Nath case41 , the
accepted position 
F 
was, that the Parliament had the power to amend Part Ill of the 
. Constitution, so as to take away or abridge the fundamental 
rights. Having noticed the fact, that no attempt was made by 
the Parliament to take away or abridge the fundamental rights, 
relating to the liberty of a person, and the freedom of 
G expression, it was recorded, that even in future it could not be 
done. Accordingly, with reference to Article 368, it was sought 
to be concluded, that the Parliament had the power to amend 
Part Ill of the Constitution, as long as the "basic structure" of 
H the Constitution was retained (paragraph 1421 ). If the "basic
SUPREME COURT ADVOCATES-ON-RECORD 
361 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
structure" of the original Constitution was retained, inasmuch A 
as had the original Constitution continued to subsist, even 
though some of its provisions were changed, the power of 
amendment would be considered to have been legitimately 
exercised (paragraph 1430). And therefore, the true effect of 
Article 368 would be, that the Constitution did not vest with the B 
Parliament, the power or authority for drafting a new and 
radically changed Constitution, with a different structure and 
framework (paragraph 1433). Accordingly, subject to the 
retention of the "basic structure or framework" of the 
Constitution, the power vested with the Parliament to amend 
C 
the Constitution was treated as plenary, and would include the 
power to add, alter or repeal different Articles of the 
Constitution, including those relating to fundamental rights. All 
the above measures were included in the Parliament's power D 
of amendment, and the denial of such a broad and 
comprehensive power, would introduce rigidity in the 
Constitution, as would break the Constitution itself (paragraph 
1434).As such, it was held, thatthe amending power conferred 
by Article 368, would include the power to amend the 
E 
fundamental rights, contained in Part Ill of the Constitution 
(paragraph 1435). In this behalf, it was asserted, thatthe issue, 
whether the amendment introduced would (or would not) be 
an
improvement over the prevailing position, was not 
justiciable. It was asserted, whether the amendment would be 
F 
an improvement or not, was for the Parliament alone to 
determine. And Courts, could not substitute the wisdom of the 
legislature, by their own foresight, prudence and understanding 
(paragraph 1436). It was asserted, that the amending power 
of the Parliament must contain the right to enact legislative G 
provisions, for experiment and trial, so as to eventually achieve 
the best results (paragraph 1437). In the ultimate analysis, it 
was held, that the amendment of the Constitution had a wide 
and broad connotation, and would embrace within itself, the 
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[2015] 13 S.C.R. 
A total repeal of some of the Articles, or their substitution by new 
Articles, which may not be consistent, or in conformity with other 
Articles. And a Court while judging the validity of an 
amendment, could only concern itself with the question, as to 
whether the constitutional requirements for making the 
B amendment had been satisfied? And accordingly, an 
amendment, made in consonance with the procedure 
prescribed, could not be struck down, on the ground that it 
was a change for the worst (paragraph 1442). While examining 
the question, whether the right to property could be included in 
C the "basic l'!tructure or framework" of the Constitution, the 
answer rendered was in the negative. It was held, that in 
exercising the power of judicial review, Courts could not be 
oblivious of the practical needs of the Government. And that, 
the power of amendment could be exercised even for trial and 
D error, inasmuch as opportunity had to be allowed for vindicating 
reasonable belief by experience (paragraph 1535). It was 
contended, that no generation had a monopoly to wisdom, nor 
the right to place fetters on future generations, nor to mould 
E the machinery of Government, keeping in mind eternal good. 
The possibility, that the power of amendment may be abused, 
furnished no ground for denial of its existence. According to 
the Attorney General, it was therefore not correct to assume, 
that if the Parliament was held
entitled to amend Part Ill of the 
F Constitution, it would automatically and neces·sarily result in 
abrogation of the fundamental rights. Whilst concluding, that 
the right to property did not pertain to the "basic structure or 
framework" of the Constitution, it was held, that power of 
amendment under Article 368 did not include the power to 
G abrogate the Constitution, or to alter the "basic structure or 
framework" of the Constitution. Despite having so concluded, 
it was held, that no part of the fundamental rights could claim 
immunity, from the power of amendment (paragraph 1537). 
H 
78. Reference was then made to the judgments rendered
SUPREME COURT ADVOCATES-ON-RECORD 
363 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
by this Court in Indira Nehru Gandhi v. Raj Narain56, Waman A 
Rao v. Union of lndia57, and the M. Nagaraj case36, to contend, 
that the "basic structure" of the Constitution was to be 
determined, on the basis of the features which existed in the 
text of the original enactment of the Constitution, on the date 
of its coming into force. It was therefore pointed out, that the 
B 
subsequent amendments to the Constitution, could not be 
taken into consideration, to determine the "basic features" of 
the Constitution. 
79. Having laid down the aforestated foundation, the c 
learned Attorney General submitted, that that reference could 
only be made to Articles 124 and 217, as they originally 
existed, when the Constitution was promulgated. If the original 
provisions were to be taken into consideration, according to 
the learned Attorney General, it would be apparent that the 
D 
above Articles, expressed that the right to make appointments 
of Judges to the higher judiciary, being limited only to a 
"consultative" participation of the judiciary, was in the 
determinative domain of the executive. It was pointed out, that 
on the subject of appointment of Judges to the higher judiciary, E 
the primacy of the Chief Justice of India, through the collegium 
process, was an innovation of the judiciary itself (in the Second 
Judges case). The above primacy, was alien to the provisions 
of the
Constitution, as originally enacted. And as such, the 
an:iendment to Article 124, and the insertion of Articles 124A F 
to 124C therein, could not be examined on the touchstone of 
material, which was in stark contrast with the plain reading of 
Articles 124 and 217 (as they were originally enacted). It was 
accordingly asserted, that the present challenge to the 
Constitution (99th Amendment) Act, would not fall within the G 
defined parameters of the "basic structure" concept, 
elaborated extensively by him (as has been recorded by us, 
5' (1975) Supp sec 1 
" (1981) 2 sec 362 
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[2015] 13 S.C.R. 
A above). The prayers made by the petitioners on the instant 
ground were therefore, according to the learned Attorney 
General, liable to be rejected. 
80. Having traveled thus far, it was pointed out, that it 
B was important to understand the true purport and effect of the 
term "independence of the judiciary". In this behalf, in the first 
instance, the Court's attention was invited to, the First Judges 
case, wherein reference was made to the opinion expressed 
by E.S. Venkataramiah, J. (as he then was), who had taken 
c the view, that it was difficult to hold, that merely because the 
power of appointment was with the executive, the 
"independence of the judiciary" would be compromised. In 
stating so, it was emphasized, that the true prlnciple was, that 
after such appointment, the executive should have no scope, 
o to interfere with the work of a Judge (paragraph 1033). Based 
thereon, it was asserted, that the independence of a Judge 
would not stand compromised, if after his appointment, the 
role of the executive, to deal with him, is totally excluded. 
Reference was then made to the opinion expressed by P.N. 
E Bhagwati, J. (as he then was) (in the same judgment), to the 
effect, that the concept of "independence of the judiciary", was 
not limited only to independence from executive pressure/ 
influence, but was relatable to many other pressures and 
prejudices. And in so recording, it was held, that 
F "independence
of the judiciary" included fearlessness of the 
other power centres, economic or political, and freedom from 
prejudices acquired and nourished by the class to which the 
Judges belonged (paragraph 1037). Based thereon, it was 
asserted, that "independence of the judiciary", included 
G independence from the influence of other Judges as well. And 
as such, it was concluded, that the composition of the NJAC 
was such, as would ensure the independence of the Judges 
appointed to the higher judiciary, as contemplated in the First 
H Judges case.
SUPREME COURT ADVOCATES-ON-RECORD 
365 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
81. In conjunction with the issue of"independence of the A 
judiciary", which flows out of the concept of "separation of 
powers", it was pointed out, that the scheme of the Constitution 
envisaged a system of checks and balances. Inasmuch as, 
each organ of governance while being allowed the freedom to 
discharge the duties assigned to it, was subjected to controls, 
B 
at the hands of one of the other organs, or both of the other 
organs. Illustratively, it was sought to be contended, that all 
executive authority, is subject to scrutiny through judicial review 
(at the hands of the judiciary). Likewise, legislation enacted 
by the Parliament, or the State legislatures, is also subject to C 
judicial review, (at the hands of the judiciary). Even though, 
the executive and the legislature have the freedom to function 
and discharge their individual responsibilities, without 
interference by the other organ(s) of governance, yet the 
D 
judiciary has been vested with the responsibility to ensure, that 
the exercise of executive and legislative functions, is in 
consonance with law. Likewise, it was submitted, that in the 
matter of appointment of Judges, Articles 124 and 217 
provided for executive control, under the scheme of checks 
E 
and balances. It was submitted, that the instant scheme of 
checks and balances, was done away with, by the Second 
and Third Judges cases, in the
matter of appointment of 
Judges to the higher judiciary. It was asserted, that the position 
of checks and balances has been restored by the Constitution F 
(99th Amendment) Act, by reducing the role of the executive, 
from the position which existed at the commencement of the 
Constitution. Referring to the decisions in the Kesavananada 
Bharati case 10, the Indira Nehru Gandhi case 56, the 
Sankalchand Himatlal Sheth case5, Asif Hameed v. State of G 
Jammu and Kashmir58, State of Bihar v. Bihar Distillery 
Limited59, and"Bhim Singh v. Union of lndia13, it was submitted, 
that this Court had recognized, that the concept of checks and 
5• 1989 supp (2) sec 364 
5• , (1997) 2 sec 453 
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[2015] 13 S.C.R. 
A 
balances, was inherent in the scheme of the Constitution. And 
that, even though the legislature, the executive and the judiciary 
were required to function within their own spheres demarcated 
through different Articles of the Constitution, yettheir attributes 
could never be in absolute terms. It was submitted, that each 
B wing of governance had to be accountable, and till the principle 
of accountability was preserved, the principle of "separation 
of powers" would not be achievable. It was therefore 
contended, that the concept of "independence of the judiciary", 
could not be gauged as an absolute end, overlooking the 
C checks and balances, provided for in the scheme of the 
Constitution. 
82. Having so asserted, it was contended, that in the 
matter of appointment of Judges to the higher judiciary, the 
o most important and significant feature was, that no unworthy 
or doubtful appointment should go through, even though at 
times, the candidature of a seemingly good candidate, may 
not be accepted. It was asserted, that the NJAC had provided 
for a complete protection, in the sense noticed hereinabove, 
E by providing in the procedure of appointment, that a negative 
view expressed by any of the two Members of the NJAC, would 
result in the rejection of the concerned candidate. Therefore, 
merely two Members of the NJAC, would be sufficient to veto 
a proposal for appointment. It was submitted, that since three 
F
Members of the NJAC were Judges of the Supreme Court, 
their participation in the NJAC would ensure, that 
"independence of the judiciary" remained completely 
safeguarded and secured. It was therefore contended, that 
not only the Constitution (99th Amendment) Act, but also the 
G NJACAct fully satisfied the independence criterion, postulated 
as a "basic structure" of the Constitution. 
83. In order to reiterate the above position, it was 
asserted, that primacy in the matter of appointment of Judges 
H to the higher judiciary, was not contemplated in the Constitution,
SUPREME COURT ADVOCATES-ON-RECORD 
367 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
as originally framed. In this behalf, reference was made to A 
Articles 124 and 217. And in conjunction therewith, adverting 
to the debates on the subject, by Members of the Constituent 
Assembly. Thereupon, it was asserted, that the issue of primacy 
of the Chief Justice, based on a decision by a collegium of 
Judges, was a judicial innovation, which required B 
reconsideration. Moreover, it was submitted, that the Second 
and Third Judges cases, were founded on the interpretation 
of Articles of the Constitution, which had since been amended, 
and as such, the very basis of the Second and Third Judges 
cases, no longer existed. Therefore, the legal position declared C 
in the above judgments, could not constitute the basis, of the 
contentions advanced at the hands of the petitioners. 
Furthermore, even if the ratio recorded by this Court in the 
Second and Third Judges cases, was still to be taken into D 
consideration, conclusions (5), (6) and (7) recorded by J.S. 
Verma, J. (who had transcripted the majority view), show that 
the primacy of the judiciary was to ensure, that no appointment 
could be made to the higher judiciary, unless it had the approval 
of the collegium. It was submitted, that the instant aspect, which 
E 
constituted the functional basis for ensuring "independence of 
the judiciary", had been preserved in the impugned 
constitutional amendment, and the NJAC
Act. It was accordingly 
contended, that if the right to insist on the appointment of a 
candidate proposed by the judiciary, was taken away, from 
F 
the Chief Justice of India {based on a decision of a collegium 
of Judges), the same would not result, in the emasculation of 
the "basic structure" of the Constitution. In other words, the 
same would not violate the "essential and fundamental 
features" of the Constitution, nor in the least, the "independence G 
of the judiciary''. 
84. Based on the above submissions, the learned 
Attorney General invited the Court's attention to the primary 
contention advanced by the petitioners, namely, that even if all 
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[2015] 13 S.C.R. 
A the three Judges of the Supreme Court who are now ex officio 
Members of the NJAC, collectively recommended a nominee, 
such recommendation could be annulled, by the non-Judge 
Members of the NJAC. Learned Attorney General submitted, 
that the above contention was limited to the right to "insist" on 
B an appointment. And that, the right to "insist" did not flow from 
the conclusions recorded in the Second and Third Judges 
cases. And further, that the same cannot, by itself, be taken as 
an incident to establish a breach of the "independence of the 
judiciary". 
c 
85. Insofar as the Second and Third Judges cases are 
concerned, it was submitted, that the same may have been 
the need of the hour, on account of the fact that in 1976, sixteen 
Judges were transferred (from the High Courts in which they 
o were functioning), to other High Courts. In the Sankalchand 
Himatlal Sheth cases, one of the transferred Judges challenged 
his transfer, inter alia, on the ground, that his non-consensual 
transfer was outside the purview of Article 222, as the same 
would adversely affect the "independence of the judiciary". 
E Irrespective of the determination rendered, on the challenge 
raised in the Sankalchand Himatlal Sheth cases, it was pointed 
out, the very same question came to be re-agitated in the First 
Judges case. It was held by the majority, while interpreting 
Article 222, that the consent of the Judge being transferred, 
F
need not be obtained. It was also pointed out, that ever since 
the inception of the Constitution, the office of the Chief Justice 
of India, was occupied by the senior most Judge of the 
Supreme Court. The above principle was departed from in 
April 1973, as the next senior most Judge- J.M. Shelat, was 
G not elevated to the office of the Chief Justice of India. Even 
the next two senior most Judges, after him - K.S. Hegde and 
A.N. Grover, were also ignored. The instant supersession by 
appointing the fourth senior most Judge -A.N. Ray, as the 
Chief Justice of India, was seen as a threat to the 
H
SUPREME COURT ADVOCATES-ON-RECORD 
369 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEFIAR, J.] 
"independence of the judiciary". Again in January 1977, on the A 
retirement of A.N. Ray, CJ., the senior most Judge immediately 
next to him - H.R. Khanna, was ignored and the second senior 
most Judge- M.H. Beg, was appointed, as the Chief Justice 
of India. In the above background, the action of the executive, 
came to be portrayed as a subversion of the "independence 
B 
of the judiciary". It was in the above background, that this Court 
rendered the Second and Third Judges cases, but the 
implementation of the manner of appointment of Judges to 
the higher judiciary, in consonance therewith, had been subject 
to, overwhelming and all around criticism, including being 
C 
adversely commented upon by J.S. Verma, CJ., the author of 
the majority view in the Second Judges case, after his 
retirement. In this behalf, the Court's attention was invited to 
his observations, extracted hereunder: 
"My 1993 Judgment which holds the field was very much 
misunderstood and misused. It was in this context, that I 
said that the working of the judgment, now, for some time, 
D 
is raising serious questions, which cannot be called 
unreasonable. Therefore, some kind of re-think is required. 
E 
My Judgment says the appointment process of High Court 
and Supreme Court Judges is basically a joint or 
participatory exercise. between the Executive and the 
Judiciary, both taking part in it." 
It was
therefore contended, that in the changed scenario, 
F 
this Court ought to have, at its own, introduced measures to 
negate the accusations leveled against the prevailing system, 
of appointment of Judges to the higher judiciary. Since no 
such remedial measures were adopted by the judiciary of its 
own, the legislature had brought about the Constitution (99th G 
Amendment) Act, supplemented by the NJAC Act, to broad 
base the process of selection and appointment, of Judges to 
the higher judiciary, to make it transparent, and to render the 
participants accountable. 
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[2015) 13S.C.R. 
A 
86. Having dealt with the constitutional aspect of the 
matter, the learned Attorney General invited the Court's 
attention, to the manner in which judicial appointments were 
being made in fifteen countries. It was submitted, that in nine 
countries Judges were appointed either through a Judicial 
B Appointment Commission (Kenya, Pakistan, South Africa and 
U.K.), or Committee (Israel), or Councils (France, Italy, Nigeria 
and Sri Lanka). In four countries, Judges were appointed 
directly by the Governor General (Australia, Canada and New 
Zealand), or the President (Bangladesh). It was submitted, 
C that in Germany appointment of Judges was made through a 
multistage process of nomination by the Minister of Justice, 
and confirmation by Parliamentary Committees, whereupon, 
the final order of appointment of the concerned individual, is 
0 
issued by the President. In the United States of America, 
Judges were appointed through a process of nomination by 
the President, and confirmation by the Senate. It was 
submitted, that in all the fifteen countries referred to above, 
the executive was the final determinative/appointing authority. 
E Insofar as the appointments made by the Judicial 
Appointments Commissions/Committees/Councils (referred 
to above) were concerned, out of nine countries with 
Commissions, in two countries (South Africa and Sri Lanka) 
the executive had overwhelming majority, in four countries 
F (France,
Israel, Kenya and U.K.) there was a balanced 
representation of stakeholders including the executive, in three 
countries (Italy, Nigeria and Pakistan) the number of Judges 
was in a majority. In the five countries without Commissions/ 
Committees/ Councils (Canada, Australia, New Zealand, 
G Bangladesh and the United States of America), the decision 
was taken by the executive, without any formal process of 
consultation with the judiciary. It was pointed out, that in 
Germany, the appointment process was conducted by the 
Parliament, and later confirmed by the President. It was pointed 
H out, that the judiciary in all the countries referred to above, was
SUPREME COURT ADVOCATES-ON-RECORD 
371 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
totally independent. Based on the above submissions, it was A 
contended, that the manner of selection and appointment of 
Judges, could not be linked to the concept of "independence 
of the judiciary". It was submitted, that the judicial functioning 
in the countries referred to above, having been accepted as 
more than satisfactory, there is no reason, that the system of B 
appointment introduced in India, would be adversely impacted 
by a singular representative of the executive in the NJAC. It 
was therefore asserted, that the submissions advanced at the 
hands of the petitioners, were not acceptable, even with 
reference to the experience of other countries, governed C 
through a constitutional framework (some of them, of the 
Westminster Model). 
87. It was further asserted, that the absence of the 
absolute majority of Judges in the NJAC, could not lead to the D 
inference, that the same was violative of the "basic structure" 
of the Constitution, so as to conclude, that it would impinge 
upon the "independence of the judiciary". It was asserted, that 
the representation of the judiciary in the NJAC, was larger than 
that of the other two organs of the governance, namely, the 
E 
executive and the legislature. In any case, given the 
representation of the judiciary in the NJAC, it was fully 
competent, to stall the appointment of a candidate to the higher 
judiciary, who was
considered by the judicial representatives, 
as unsuitable. Any two, of the three representatives of the 
F 
judiciary, were sufficient to veto any appointment supported 
by others. 
88. It was further submitted, that the NJAC was broad 
based with representatives from the judiciary, the executive G 
and the "two eminent persons", would not fall in the category of 
jurists, eminent legal academicians, or eminent lawyers. It was 
contended, that the intention to include "eminent persons", who 
.had no legal background was to introduce, in the process of 
selection and appointment of Judges, lay persons in the same H
372 
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[2015) 13 S.C.R. 
A 
manner, as has been provided for in the Judicial Appointments 
Commission, in the United Kingdom. 
89. It was also the contention of the learned Attorney 
General, that this would not be the first occasion. when such 
8 
an exercise has been contemplated by parliamentary 
legislation. The Court's attention was drawn to the Consumer 
Protection Act, 1986, wherein the highest adjudicatory authority 
is, the National Consumer Disputes Redressal Commission. 
It was pointed out, that the above Redressal Commission, 
c comprised of Members, with and without a judicial background. 
The President of the National Consumer Disputes Redressal 
Commission has to be a person, who has been a Judge of the 
Supreme Court. Illustratively, it was contended, where a matter 
is being adjudicated upon by a three-Member Bench, two of 
o the Members may not be having any judicial background. 
These two non-judicial Members, could overrule the view 
expressed by a person, who had been a former Judge in the 
higher judiciary. It was submitted, that situations of the above 
nature, do sometimes take place. Yet, such a composition for 
E adjudicatory functioning, where the Members with a judicial 
background are in a minority, is legally and con~titutionally valid. 
If judicial independence cannot be held to be compromised in 
the above situation, it was asserted, that it was difficult to 
understand how the same could be considered to be 
F compromised
in a situation, wherein the NJAC has three out 
of its six Members, belonging to the judicial fraternity. 
90. It was sought to be suggested, that the primacy of 
the judiciary, in the matter of appointment of Judges to the higher 
G judiciary, could not be treated as a part of the "basic structure" 
of the Constitution. Furthermore, the lack of absolute majority 
of Judges in the NJAC, would also not tantamount to the 
constitutional amendment being rendered violative of the 
"basic structure". In the above view of the matter, it was 
H asserted, that the submissions advanced at the hands of the
SUPREME COURT ADVOCATES-ON-RECORD 
373 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
learned counsel representing the petitioners, on the aspect of A 
violation of the "basic structure" of the Constitution, by 
undermining the "independence of the judiciary", were liable 
to be rejected. 
91. With reference to the inclusion of two "eminent B 
persons'', in the six-Member NJAC, it was submitted, that the 
general public was the key stakeholder, in the adjudicatory 
process. And accordingly, it was imperative to ensure their 
participation in the selection/appointment of Judges to the 
higher judiciary. Their participation, it was submitted, would c 
ensure sufficient diversity, essential for rightful decision making. 
It was submitted, that in the model of the commission 
suggested by M.N. Venkatachaliah, CJ., the participation of 
one eminent person was provided. He was to be nominated 
by the President, in consultation with the Chief Justice of India. D 
In the 2003 Bill, which was placed before the Parliament, the 
proposed Judicial Commission was to include one eminent 
person, to be nominated by the executive. The 2013 Bill, which 
was drafted by the previous political dispensation - the U. P.A. 
Government, the Judicial Commission proposed, was to have 
E 
two eminent persons, to be selected by the Prime Minister, 
the Chief Justice of India and the Leader of the Opposition in 
the Lok Sabha. The 2014 Bill, whicl'lwas drafted by the present 
political
dispensation-the N.D.A. Government, included two 
eminent persons, to be selected in just about the same manner F 
as was contemplated under the 2013 Bill. The variation being, 
that one of the eminent persons was required to belong to the 
Scheduled Castes, or the Scheduled Tribes, or Other 
Backward Classes, or Minorities, or Women, thereby fulfilling 
the obvious social obligation. It was submitted, that their G 
participation in the deliberations, for selection of Judges to 
the higher judiciary, could not be described as adversarial to 
the judicial community. Their participation would make the 
process of appointment, more broad based. 
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374 
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[2015] 13 S.C.R. 
A 
92. While responding to the submissions, advanced at 
the hands of the learned counsel for the petitioners, to the effect 
that the Constitution (99th Amendment) Act, did not provide 
any guidelines, reflecting upon the eligibility of the "eminent 
persons'', to be nominated to the NJAC, and as such, was 
B liable to be struck down, it was submitted, that the term 
"eminent person" was in no way vague. It meant- a person 
who had achieved distinction in the field of his expertise. 
Reference was also inade to the debates of the Constituent 
Assembly, while dealing with the term "distinguished jurist'', 
C contained in Article 124(3), it was pointed out, that the term 
"distinguished person" was not vague. In the present situation, 
it was submitted, that since the selection and nomination of 
"eminent persons", was to be in the hands of high constitutional 
0 
functionaries (no less than the Prime Minister, the Chief Justice 
.of India and the Leader of the Opposition in the Lok Sabha), it 
was natural to assume, that the person(s) nominated, would 
be chosen, keeping in mind the obligation and the 
responsibility, that was required to be discharged. Reliance in 
E this behalf, was placed on the Centre for Public Interest 
Litigation case43, to assert, that it was sufficient to assume, 
. that such a high profile committee, as the one in question, would 
exercise its powers objectively, and in a fair and reasonable 
manner.
Based on the above, it was contended, that it was 
F well seWed, that mere conferment of wide discretionary powers, 
would not vitiate the provision itself. 
93. Referring to the required qualities of a Judge 
recognized in the Indian context, as were enumerated in the 
"Bangalore Principles of Judicial Conduct", and thereupon 
G accepted the world over, as revised at the Round Table Meeting 
of Chief Justices held at The Hague, in November 2002, it 
was submitted, that the two "eminent persons" would be most 
suited, to assess such matters, with reference to the nominees 
under consideration. Whilst the primary responsibility of the 
H Members from the judiciary would be principally relatable to,
SUPREME COURT ADVOCATES-ON-RECORD 
375 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
ascertaining the judicial acumen of the candidates concerned, A 
the responsibility of the executive would be, to determine the 
character and integrity of the candidate, and the inputs, whether 
the candidate possessed the values, expected of a Judge of 
the higher judiciary, would be that of "eminent persons" in the 
NJAC. It was therefore asserted, that the two "eminent B 
persons" would be "lay persons" having no connection with 
the judiciary, or even to the profession of advocacy, perhaps 
individuals who may not have any law related academic 
qualifications. It was submitted, that the instant broad based 
composition of the NJAC, was bound to be more suitable, than C 
the prevailing system of appointment of Judges. Relying upon 
the R. Gandhi case38, it was submitted, that it would not be 
proper to make appointments, by vesting the process of 
selection, with an isolated group, or a selection committee D 
dominated by representatives of a singular group - the 
judiciary. In a matter of judicial appointments, it was submitted, 
the object ought to be, to pick up the best legally trained minds, 
coupled with a qualitative personality. For this, according to 
the Attorney General, a collective consultative process, would 
E 
be the most suitable. It was pointed out, that "eminent 
persons", having no nexus to judicial activities, would introduce 
an element of detachment, and would
help to bring in 
independent expertise, to evaluate non-legal competencies, 
from an ordinary citizen's perspective, and thereby, represent F 
all the stakeholders of the justice. delivery system. It was 
contended, that the presence of "eminent persons" was 
necessary, to ensure the representative participation of the 
general public, in the selection and appointment of Judges to 
the higher judiciary. Their presence would also ensure, that G 
the selection process was broad based, and reflected sufficient 
diversity and accountability, and in sync with the evolving 
process of selection and appointment of Judges, the world over. 
94. The learned Attorney General, then addressed the 
issue of inclusion of the Union Minister in charge of Law and 
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[2015] 13 S.C.R. 
A 
Justice, as an ex officio Member in the NJAC. Reference was 
first made to Articles 124 and 217, as they were originally 
enacted in the Constitution. It was submitted, that originally, 
the power of appointment of Judges to the higher judiciary, 
was exclusively vested with the President. In this behalf reliance 
B was placed on Article 74, whereunder the President was 
obliged to act on the aid and advice of the Council of Ministers, 
headed by the Prime Minister. It was pointed out, that the above 
position, was so declared, by the First Judges case. And as 
such, from the date of commencement of the Constitution, the 
C 
executive had the exclusive role, in the selection and 
appointment of Judges to the higher judiciary. It was asserted, 
that the position was changed, for the first time, in 1993 by the 
Second Judges case, wherein the term "consultation", with 
0 
reference to the Chief Justice of India, was interpreted as 
"concurrence". Having been so interpreted, primacy in the 
matter of appointment of Judges to the higher judiciary, came 
to be transferred from the executive, to the Chief Justice of 
India (based on a collective decision, by a collegium of Judges). 
E 
Despite the above, the Union Minister in charge of Law and 
Justice, being a representative of the executive, continued to 
have a role in the selection process, though his involvement 
was substantially limited, as against the responsibility assigned
to the executive under Articles 124 and 217, as originally 
F 
enacted. It was pointed out, that by including the Union Minister 
in charge of Law and Justic~. as a Member of the NJAC, the 
participatory role of the executive, in the matter of selection 
and appointment of Judges to the higher judiciary, had actually 
been diminished, as against the original position. Inasmuch 
G as, the executive role in the NJAC, had been reduced to one 
out of the six Members of the Commission. In the above view 
of the matter, it was asserted, that it was unreasonable for the 
petitioners to grudge, the presence of the Union Minister in 
charge of Law and Justice, as a Member of the NJAC. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
377 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR. J.] 
95. Insofar as the inclusion of the Union Minister in the A 
NJAC is concerned, it was submitted, that there could be no 
escape from the fact, that the Minister in question, would be 
the connect between the judiciary and the Parliament. His 
functions wouid include, the responsibility to inform the 
Parliament, about the affairs of the judicial establishment. It 
B 
was submitted, that his exclusion from the participatory process, 
would result in a lack of coordination between the two important 
pillars of governance. Furthermore, it was submitted that the 
Minister in question, as a member of the executive, will have 
access to, and will be able to, provide the NJAC with all the C 
relevant information, about the antecedents of a particular 
candidate, which the remaining Members of the NJAC are 
unlikely to have access to. This, according to the learned 
Attorney General, would ensure, that the persons best suited 
D 
to the higher judiciary, would be selected. Moreover, it was 
submitted, that the executive was a key stakeholder in the 
justice delivery system, and as such, it was imperative for him 
to have, a role in the process of selection and appointment of 
Judges, to the higher judiciary. 
E 
96. The learned Attorney General allayed all fears, with 
reference to the presence of Union Minister, in the NJAC, by 
asserting that he would not be in a position to politicize the
appointments, as he was just one of the six-Members of the 
NJAC. And that, the other Members would constitute an 
F 
adequate check, even if the Minister in question, desired to 
favour a particular candidate, on political considerations. This 
submission was made by the learned Attorney General, 
keeping in mind the assumed fear, which the petitioners had 
expressed, on account of the political leanings of the Union G 
Minister, with the governing political establishment. It was 
accordingly asserted, that the presence of one member of the 
executive, in a commission of six Members, would not impact 
the "independence of the judiciary", leading to the clear and 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
unambiguous conclusion, that the presence of the Union 
Minister in charge of Law and Justice in the NJAC, would not 
violate the "basic structure" of the Constitution. 
97. Referring to the judgment rendered by this Court, in 
the Madras Bar Association case35, it was submitted that, for 
8 
the tribunal in question, the participation of the executive in the 
selection of its Members, had been held to be unsustainable, 
because the executive was a stakeholder in each matter, that 
was to be adjudicated by the tribunal. It was submitted, that 
C 
the above position did not prevail insofar as the higher judiciary 
was concerned, since the stakeholders before the higher 
judiciary were diverse. It was, therefore, submitted, that the 
validity of the NJAC could not be assailed, merely on the ground 
of presence of the Union Minister, as an ex officio Member of 
D the NJAC. 
98. The manner of appointment of Judges to the higher 
judiciary, through the NJAC, it was asserted, would have two 
major advantages. It would introduce transparency in the 
process of selection and appointments of Judges, which had 
E hitherto before, been extremely secretive, with the civil society 
left wondering about, the standards and the criterion adopted, 
in determining the suitability of candidates. Secondly, the NJAC 
would diversify the selection process, which would further lead 
to accountability in the matter of appointments. It was 
F
submitted, that not only the litigating public, or the practicing 
advocates, but also the civil society, had the right to know. It 
was pointed out, that insofar as the legislative process was 
concerned, debates in the Parliament are now in the public 
domain. The rights of individuals, determined at the hands of 
G the executive, have been transparent under the Right to 
Information Act, 2005. It was submitted that likewise, the 
selection and appointment of Judges to the higher judiciary, 
must be known to the civil society, so as to ir:itroduce not only 
H fairness, but also a degree of assurance, that the best out of
SUPREME COURT ADVOCATES-ON-RECORD 
379 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
those willing, were being appointed as Judges. 
A 
99. Referring to Article 124A(2) inserted through the 
Constitution (99th Amendment) Act, it was asserted, that a 
constitutional process could not be held up, due to the 
unavailability (and/or the disability) of one or more Members 
of the NJAC. So that a defect in the constitution of the NJAC, 
B 
or any vacancy therein, would not impact the process of 
selection and appointment of Judges to the higher judiciary. 
Article 124A(2) provided, that the proceedings of the NJAC 
would not be questioned or invalidated on account of a vacancy C 
or a defect in the composition of the NJAC. It was contended, 
that it was wrongful for the petitioners to frown on Article 
124A(2), as there were a number of statutory enactments with 
similar provisions. In this behalf, the Court's attention was inter 
alia drawn to Section 4(2), of the Central Vigilance Commission D 
Act 2003, Section 4(2), of the Lokpal and LokayuktasAct 2013, 
Section 7, of the National Commission for Backward Classes 
Act 1993, Section 29A, of the Consumer Protection Act 1986, 
Section 7, of the Advocates Welfare Act 2001, Section 8, of 
the University Grants Commission Act 1956, Section 9, of the E 
Protection of Human Rights Act 1993, Section 7, of the National 
Commission for Minorities Act 1993, Section 8, of the National 
Commission for Minority Educational Institutions
Act 2004, 
Section 24, of the Persons with Disabilities (Equal 
Opportunities, Protection of Rights and Full Participation)Act F 
1995, and a host of other legislative enactments of the same 
nature. Relying on the judgments in Bangalore Woollen, Cotton 
and Silk Mills Co. Ltd. v. Corporation of the City of Bangalore60 , 
Khadim Hussain v. State of U.P.61, B.K. Srinivasan v. State of 
Karnataka62, and People's Union for Civil Liberties v. Union of G 
lndia63, it was asserted, that on an examination of provisions 
60 (1961) 3 SCR 707 
" (1976) 1 sec 843 
6, (1987) 1 sec 658 
•3 (2005) 5 sec 363 
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380 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
of similar nature, this Court had repeatedly held, that modern 
legislative enactments ensured, that the defects of procedure, 
which do not lead to any substantial prejudice, are statutorily 
placed beyond the purview of challenge. It was accordingly 
asserted, that invalidity on account of a technical irregularity, 
B 
being excluded from judicial review, the submissions advanced 
on behalf of the petitioners, on the constitutional validity of 
clause (2) of Article 124A, deserved an outright rejection. 
100. It was the contention of the learned Attorney General, 
C that the NJAC did not suffer from the vice of excessive 
delegation. It was sought to be reiterated, that the power of 
nomination of "eminent persons" was securely and rightfully 
left to the wisdom of the Prime Minister of India, the Chief 
Justice of India and"the Leader of the Opposition in the 
0 
Parliament. It was submitted, that the parameters expressed 
in Sections 5 and 6 of the NJACAct, delineating the criterion 
for selection, by specifically providing, that ability, merit and 
suitability would expressly engage the attention of the NJAC, 
while selecting Judges for appointment to the higher judiciary, 
E clearly laid out the parameters for this selection and 
appointment process. It was submitted, that the modalities to 
determine ability, merit and suitability would be further detailed 
through rules and regulations. And that, factors such as, the
minimum number of years of practice at the Bar, the number 
F 
and nature of cases argued, academic publications in reputed 
journals, the minimum and maximum age, and the like, would 
be similarly provided for. All these clearly defined parameters, 
it was contended, would make the process of selection and 
appointment of Judges to the higher judiciary transparent, and 
G would also ensure, that the candidates to be considered, were 
possessed of the minimum desired standards. It was 
submitted, that the Memorandum of Procedure for Appointment 
and Transfer of Chief Justices and Judges of the High Courts, 
as also, for elevation of Judges to the Supreme Court, were 
H
SUPREME COURT ADVOCATES-ON-RECORD 
381 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
bereft of any such particulars, and the absence of any A 
prescribed criterion, had resulted fn the appointment of Judges, 
even to the Supreme Court, which should have ordinarily been 
avoided. The learned Attorney General made a reference to 
three instances, which according to him, were universally 
condemned, by one and all. One of the Judges appointed to B 
this Court, according to him, was a non-performer as he had 
authored just a few judgments as a Judge of the High Courts· 
of Delhi and Kerala, and far lesser judgments as the Chief 
Justice of the Uttarakhand and Karnataka High Courts, and 
less than ten judgments during his entire tenure as a Judge of C 
the Supreme Court. The second Judge, according to him, 
was notoriously late in commencing Court proceeding, a habit 
which had persisted with the said Judge even as a :Judge of 
the Patna and Rajasthan High Courts, and thereafter, as the 
Chief Justice of the Jharkhand High Court, and also as a Judge D 
of the Supreme Court. The third Judge, according to the · 
learned Attorney General, was notoriously described as a 
tweeting Judge, because of his habit of tweeting his views, 
after he had retired. Learned counsel for the respondents, 
E 
acknowledged having understood the identity of the Judges 
from their above description by the learned Attorney General, 
and also affirmed the factual position asserted in respect of 
the
Judges mentioned. The learned Attorney General also 
handed over to us a compilation (in a sealed cover) about F 
appointments of Judges made to different High Courts, despite 
the executive having expressed an adverse opinion. The 
compilation made reference to elevation of five Judges to High 
Courts (-two Judges to the Jam mu and Kashmir High Court, 
one Judge to.the Punjab and Haryana High Court,. one Judge G 
to the Patna High Court, and one Judge to the Calcutta High 
Court) and three Judges to the Supreme Court. It .may be 
clarified that the objection with reference to the Supreme Court 
Judges was notrelated to their suitability, but for the reason 
that some High Courts were unrepresented in the Supreme H
382 
SUPREME COURT REPORTS · 
[2015] 13 S.C.R. 
A 
Court. We would therefore understand the above position as 
covering the period from 1993 till date. But it was not his 
co-ntention, that these elevations had proved to be wrongful. 
We may only notice, that two of the three Supreme Court 
Judges referred to, were in due course elevated to the high 
B office of Chief Justice of India. 
101. The learned Attorney General vehemently contested 
the assertion made by the learned counsel representing the 
petitioners, that the power to frame rules and regulations for 
c the functioning of the NJAC was unguided, inasmuch as, 
neither the constitutional amendment nor the legislative 
enactment, provided for any parameters for framing the rules 
and regulations, pertaining to the criterion of suitability. In this 
behalf, it was submitted, that sufficient guidelines were 
o ascertainable from Articles 124B and 124C. Besides the 
aforesaid, the Court's attention was drawn to Sections 5(2), 
6(1) and 6(3) of the NJAC Act, wherein the parameters of 
suitability for appointment of Judges had been laid down. In 
th is behalf, it was also asserted, that Article 124, as originally 
E enacted, had laid down only basic eligibility conditions, for 
appointment of Judges to the higher judiciary, but no suitability 
criteria had been expressed. It was also asserted, that the 
procedure and conditions for appointment of Judges, were 
also not prescribed. As against the above, it was pointed out,
F that Articles 124B and 124C and Sections 5(2), 6(1) and 6(3) 
of the NJAC Act, clearly laid down conditions and guidelines 
for determining the suitability of a candidate for appointment 
as a Judge. On the basis of the aforementioned analysis, it 
was submitted, that neitherthe constitutional am·endment was 
G violative of the "basic structure", nor the NJAC Act, was 
constitutionally invalid. For the above reasons, it was asserted, 
that the challenge raised by the petitioners was liable to be 
rejected. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
383 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
102. In response to the technical submission advanced A 
by Mr. Fali S. Nariman, namely, that since the Constitution (99th 
Amendment) Act, was brought into force, consequent upon the 
notification issued by the Central Government in the Official 
Gazette on 13.4.2015, the consideration of the NJAC Bill and 
the passing of the NJAC Act, prior to the coming into force of B 
the Constitution (99th Amendment)Act, would render it null and 
void, the learned Attorney General invited our attention to Article 
118, which authorizes, each House of Parliament, to make rules 
for regulating their procedure, in the matter of conducting their c 
business. It was pointed out, that Rules of Procedure and the 
Conduct of Business of the Lok Sabha, had been duly enacted 
by the Lok Sabha. A relevant extract of the aforesaid rules was 
handed over to us. Rule 66 thereof, is· being extracted 
hereunder: 
D 
"66. A Bill, which is dependent wholly or partly upon another 
Bill pending before the House, may be introduced in the 
House in anticipation of the passing of the Bill on which it 
is dependent: 
Provided that the second Bill shall be taken up for E 
consideration and passing in the House only after the first 
Bill has been passed by the Houses and assented to by 
the President." 
Referring to the proviso under Rule 66, it was 
acknowledged that the rule read independently, fully justified 
F 
the
submissions of Mr. Fali S. Nariman. It was however pointed 
out, that it was open to the Parliament to seek a suspension of 
the above rule under Rule 388. Rule 388 is also extracted 
hereunder: 
"388. Any member may, with the consent of the Speaker, G 
" 
move that any rule may be suspended in its application to 
a particular motion before the House and if the motion is 
carried the rule in question shall be suspended for the time 
being." 
H
384 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
The learned Attorney General then handed over to us, the 
proceedings of the Lok Sabha dated 12.8.2014, inter a/ia, 
including the Constitution (121 st Amendment) Bill, and the 
NJAC Bill. He invited our attention to the fact, that while moving 
the motion, the then Union Minister in charge of Law and Justice 
B 
had sought, and was accorded approval, for the suspension 
of the proviso to Rule 66 of the Rules of Procedure and Conduct 
of Business of the Lok Sabha. Relevant extract of the Motion 
depicting the suspension of Rule 388 is being reproduced 
hereunder: 
c 
D 
E 
F 
"Motion under Rule 388 
Shri Ravi Shankar Prasad moved the following motion:-
"That this Ho_use do suspend the proviso to rule 66 of the 
Rules of Procedure and Conduct of Business in Lok 
Sabha in its application to the motions for taking into 
consideration and passing the NaHonal Judicial 
Appointments Commission Bill. 2014 in as much as it is 
dependent upon the Constitution (One Hundred and 
Twenty-First Amendment) Bill. 2014." 
The motion was adopted. 
The motions for consideration of the Bills viz. (i) The 
Constitution (One Hundred and Twenty-First 
Amendment) Bill, 2014 (Insertion of new Articles 124A, 
124B and 124C); and (ii) The National Judicial 
Appointments Commission Bill, 2014 were moved by 
Shri Ravi Shankar Prasad." 
Premised on the strength of the Rules framed under 
Article 118, learned Attorney General, also placed reliance on 
G
Article 122, which is being reproduced below: 
H 
"122. Courts not to inquire into proceedings of 
Parliament._ (1) The validity of any proceedings in 
Parliament shall not be called in question on the ground 
of any alleged irregularity of procedure.
SUPREME COURT ADVOCATES-ON-RECORD 
385 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(2) No officer or member of Parliament in whom powers A 
are vested by or under this Constitution for regulating 
procedure or the conduct of business, or for maintaining 
order, in Parliament shall be subject to the jurisdiction 
of any court in respect of the exercise by him of those 
powers." 
B 
Based on Article 122, it was submitted, that the 
Constitution itself contemplated, that the validity of the 
proceedings in the Parliament, could not be called in question, 
on the ground of alleged irregularity in procedure. While C 
reiterating, that the procedure laid down by the Parliament 
under Article 118, had been duly complied with, it was 
submitted, that even ifthat had not been done, as long as the 
power of Parliament to legislate was not questioned, no 
challenge could be premised on the procedural defects in 
D 
enacting the·NJAC Act. In this behalf, reference was also made 
to Article 246, so as to contend, that the competence of the 
P.arliament t.o enact the NJAC Act was clearly and 
unambiguously vested with the Parliament. In support of the 
above contention, reliance was placed on in re: Hindu E 
Women's Rights to Property Act, 193764, rendered by the 
Federal Court, wherein it had observed as under: 
"One of the provisions included in Sch. 9 is that a bill shall 
not be deemed to have been passed by the Indian 
Legislature unless it has been agreed to by both Chambers
F 
either without amendment or with such amendments only 
as may be agreed to by both Chambers. It is common 
ground that the Hindu. Women's Rights to Property Bill was 
agreed t? without amendment by both Chambers of the 
Indian Legislature, and as soon as it received the Governor-
G 
General's assent, it became an Act (Sch. 9, para. 68 (2)). 
Not until then had this or any other Court jurisdiction to 
determine whether it was a valid piece of legislation or not. 
64 AIR 1941 FC 72
386 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
It may sometimes become necessary for a Court to inquire 
into the proceedings of a Legislature for the purpose of 
determining whether an Act was or was not validly passed: 
for example whether it was in fact passed. as in the case 
of the Indian Legislature the law requires by both Chambers 
of the Legislature before it received the Governor. General's 
assent. But it does not appear to the Court that the form, 
content or subject-matter of a bill at the time of its 
introduction into. or of its consideration by either Chamber 
of the Legislature is a matter with which a Court of law is 
concerned. The question whether either Chamber has the 
right to discuss a bill laid before it is a domestic matter 
regulated by the rules of the Chamber. as interpreted by 
its speaker. and is not a matter with which a Court can 
interfere. or indeed on which it is entitled to express any 
opinion. It is not to be supposed that a legisl~tive body will 
waste its time by discussing a bill which, even ifit receives 
the Governor-General's assent, would obviously be beyond 
the competence of the Legislature to enact; but if it chooses 
to do so, that is its own·affair, and the only function of a 
Court is to pronounce upon the bill after it has become an 
Act. In the opinion of this Court, therefore, it is immaterial 
that the powers of the Legislature changed during the 
passage of the bill from the Legislative Assembly to the
Council of State. The only date with which the Court is 
concerned is 14th April 1937, the date on which the 
Governor General's assent was given; and the question 
whether the Act was or was not within the competence of 
the Legislature must be determined with reference to that 
G 
date and to none other." 
Reliance was also placed on Pandit M.S.M. Sharma v. 
Dr. Shree Krishna Sinha 65, wherefrom the following 
observations were brought to our notice: 
H 
65 1961 (1)SCR96
SUPREME COURT ADVOCATES-ON-RECORD 
387 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"It now remains to consider the other subsidiary questions 
A 
raised on behalf of the petitioner. It was contended that the 
procedure adopted inside the House of the Legislature was 
not regular and not strictly in accordance with law. There 
are two answers to this contention, firstly, that according 
to the previous decision of this Court, the petitioner has 
B 
not the fundamental right claimed by him. He is, therefore, 
out of Court. Secondly, the validity of the proceedings inside 
the Legislature of a State cannot be called in question on 
the allegation that the procedure laid down by the law had 
not been strictly followed. Article 212 of the Constitution is 
C 
a complete answer to this part of the contention raised on 
behalf of the petitioner. No Court can go into those questions 
which are within the special jurisdiction of the Legislature 
itself, which has the power to conduct its own business. 
D 
Possibly, a third answer to this part of the contention raised 
on behalf of the petitioner is that it is yet premature to 
consider the question of procedure as the Committee is 
yet to conclude its proceedings. It must also be observed 
that once it has been held that the Legislature has the 
E 
jurisdiction to control the publication of its proceedings and 
to go into the question whether there has been any breach 
of its privileges, the Legislature is vested with complete
jurisdiction to carry on its proceedings in accordance with 
its rules of business. Even though it may not have strictly 
F 
complied with the requirements of the procedural law laid 
down for conducting its business. that cannot be a ground 
for interference by this Court under Art. 32 of the 
Constitution. Courts have always recognised the basic 
difference between complete want of jurisdiction and 
G 
improper or irregular exercise of jurisdiction. Mere non-
compliance with rules of procedure cannot be a ground 
for issuing a writ under Art. 32 of the Constitution vide 
Janardan Reddy v. The State of Hyderabad, (1951) SCR 
344." 
H
3B8 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A 
Based on the aforesaid submissions, it was the 
vehement contention of the learned Attorney General, that there 
was no merit in the technical objections raised by the 
petitioners while assailing the provisions of the NJACAct. 
8 
103. Mr. K.K. Venugopal, learned Senior Advocate, 
entered appearance on behalf of the State of Madhya Pradesh. 
While reiterating a few of the legal submissions canvassed by 
the learned Attorney General, he emphasized, that the 
judgments rendered by this Court, in the Second and Third 
c Judges cases, turned the legal position, contemplated under 
the original Articles 124 and 217, on its head. It was submitted, 
that this Court has been required to entertain a public interest 
litigation, in an unprecedented exercise of judicial review, 
wherein it is sought to be asserted7that the "independence of 
o the judiciary", had been encroaehed by the other two organs 
of governance. It was contended by learned counsel, that the 
instant assertion was based on a misconception, as primacy 
in the matter of appointment of Judges to the higher judiciary, 
was never vested with the judiciary. It was pointed out, that 
E 
primacy in the matter of appointment of Judges to the higher 
judiciary, was vested with the executive under Articles 124 and 
217, as originally enacted. Furthermore, this Court through its 
judgments culminating in the First Judges case, while correctly 
interpreting the aforesaid
provisions of the Constitution, had 
F 
rightly concluded, that the interaction between the executive 
and the Chief Justice of India (as well as, the other Judges of 
the higher judiciary) was merely "consultative", and that, the 
executive was entirely responsible for discharging the 
responsibility of appointment of Judges including Chief 
G Justices, to the higher judiciary. It was submitted, that the 
Second Judges case, by means of a judicial interpretation, 
vested primacy, in the matter of appointment of Judges to the 
higher judiciary, with the Chief Justice of India, and his 
H collegium of Judges. It was pointed out, that after the rendering
SUPREME COURT ADVOCATES-ON-RECORD 
389 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
of the Second Judges case, appointments of Judges A 
commenced to be made, in the manner expressed by the 
above Constitution Bench. It was asserted, that there had been, 
an all around severe criticism, of the process of appointment · 
of Judges to the higher judiciary, as contemplated by the 
Second and Third Judges cases. It was contended, that the 
B 
selection process was now limited to Judges selecting Judges, 
without any external participation. It was also asserted, that 
the exclusion of the executive from the role of selection and 
appointment of Judges was so extensive, that the executive 
has got no right to initiate any candidature, for appqintment of C 
Judges/Chief Justices to the higher judiciary. Such an 
interpretation of the provisions of the Constitution, it was 
pointed out, had not only resulted in reading the term 
"consultation" in Articles 124 and 217 as "concurrence", but D 
has gone far beyond. It was sought to be asserted, that in the 
impugned amendment to the Constitution, the intent contained 
in the original Articles 124 and 217, has been retained. The 
amended provisions, it was pointed out, have been tilted in 
favour of the judiciary, and the participatory role, earlier vested 
E 
in the executive, has been severely diluted. It was submitted, 
that even .though no element of primacy had been conferred -
on the judiciary by Article 124, as originally
enacted, primacy 
has now been vested in the judiciary, inasmuch as, the NJAC 
has the largest number of membership from the judicial 
F 
fraternity. It was highlighted, that the Union Minister in charge 
of Law and Justice, is the sole executive representative, in the 
selection process, contemplated under the amended 
provisions. It was therefore asserted, that it was a far cry, for 
. anyone to advocate, that the role of the judiciary in the manner G 
of appointment of Judges to the higher judiciary having been 
diluted, had impinged on its independence. 
104. It was contended, that the author of the majority view 
in the Second Judges case (J.S. Verma, J., as he then was), 
H
390 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
had himself found fault with the manner of implementation of 
the judgments in the Second and Third Judges cases. It was 
submitted that Parliament, being the voice of the people, had 
taken into consideration, the criticism levelled by J. S. Verma, J. 
(besides others), to revise the process of appointment of 
B Judges contemplated under the Second and Third Judges 
cases. Having so contended, learned counsel asserted, that 
if this Court felt that any of the provisions, with reference to 
selection and appointment of Judges to the higher judiciary, 
would not meet the standards and norms, which this Court felt 
C sacrosanct, it was open to this Court to read down the 
appropriate provisions, in a manner as to round off the offending 
provisions, ratherthan quashing the impugned constitutional 
and legislative provisions in their entirety. 
o 
105. Mr. R~njit Kumar, learned Solicitor General of India 
submitted, that the entire Constitution had to be read as a 
whole. In this behalf, it was contended, that each provision 
was an integral part of the Constitution, and as such, its 
interpretation had to be rendered holistically. For the instant 
E 
proposition, reliance was placed on the Kihoto Hollohan 
case34 , T.M.A. Pai Foundation v. State of Karnataka 6, R.C. 
Poudyal v. Union of lndia66, the M. Nagaraj case
3~, and the 
Kesavananda Bharati case10• Based on the above judgments, 
it was asserted, that the term "President",
as it existed in 
F Articles 124 and 217, if interpreted holistically, would lead to 
the clear and unambiguous conclusion, that the President while 
discharging his responsibility with reference to appointment 
of Judges/Chief Justices to the higher judiciary, was bound by 
the aid and advice of the Council of Ministers, as contemplated 
G under Article 74. It was contended, that the aforesaid import 
was rightfully examined and interpreted with reference to Article 
124, in the First Judges case. But had been erroneously 
overlooked, in the subsequent judgments. Accordingly, it was 
H 
•• 1994 Supp (1) sec 324
SUPREME COURT ADVOCATES-ON-RECORD 
391 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
asserted, that there could be no doubt whatsoever, while 
A 
examining the impugned constitutional amendment, as also, 
the impugned legislative enactment, that Parliament had not 
breached any component of the "basic structure" of the 
Constitution. 
106. It was also contended, that in case the challenge 
raised to the impugned constitutional amendment, was to be 
accepted by this Court, and the legal position declared by this 
Court, was to be given effect to, the repealed provisions would 
B 
not stand revived, merely because the amendmenUlegislation c 
which were being assailed, were held to be unconstitutional. 
Insofar as the instant aspect of the matter is concerned, learned 
Solicitor General raised two independent contentions. 
107. Firstly, that the issue whether a constitutional 
amendment once struck down, would revive the original/ D 
substituted Article, was a matter which had already been 
referred to a nine-Judge Constitutional Bench. In order to 
support the aforesaid contention, and to project the picture in 
its entirety, reliance was placed on, Property Owners' 
Association v. State of Maharashtra 67, Property Owners' E 
Association v. State of Maharashtra68, and Property Owners' 
· Association v. State of Maharashtra69• It was submitted, that 
the order passed by this Court, wherein the reference to a nine-
Judge Constitution Bench had been made, was a case relating
F 
to the constitutionality of Article 31 C. It was pointed out that 
Article 31 C, as originally enacted provided, that 
" ... notwithstanding anything contained in Article 13, no law 
giving effect to the policy of the State, towards securing the 
principles specified in clause (b) or clause (c) of Article 39 G 
shall be deemed to be void on the ground that it was 
inconsistent with, the rights conferred by Articles 14 and 19". 
" (1996) 4 sec 49 
6' (2001 l 4 sec 455 
6' (2013) 1 sec 522 
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392 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A 
It was submitted, that the latter part of Article 31C, which 
provided " ... and no law containing a declaration that it is for 
giving effect to such policy shall be called in question in any 
court on the ground that it does not give effect to such policy ... " 
had been struck down by this Court in the Kesavananda Bharati 
B case10• It was contended, that when the matter pertaining to 
the effect of the striking down of a constitutional amendment, 
had been referred to a nine-Judge Bench, it would be improper 
for this Court, sitting in its present composition, to determine 
c 
the aforesaid issue. 
108. The second contention advanced at the hands of 
the learned Solicitor General, was based on Sections 6, 7 and 
8 of the General Clauses Act. It was contended, that an 
amendment which had deleted some part of the erstwhi.le 
o Article 124 of the Constitution, and substituted in its place 
something different, as in the case of Article 124, by the 
Constitution (99th Amendment) Act, would not result in the 
revival of the original Article which was in place, prior to the 
constitutional amendment, even if the amendment itself was 
E to be struck down. It was submitted, that if a substituted 
provision was declared as unconstitutional, for whatever ground 
or reason(s), the same would not automatically result in the 
revival of the repealed provision. In order to support the 
aforesaid contention, reli~nce was placed on
Ameer-un-Nissa 
F 
Begum v. Mahboob Begum70, FirmA.T.B. Mehtab Majid & Co. 
v. State of Madras71 , B.N. Tewari v. Union of lndia72, Koteswar 
Vittal Karnath v. K. Rangappa Baliga & Co.73, Mulchand Odhavji 
v. Rajkot Borough Municipality74 , Mohd. Shaukat Hussain Khan 
v. State of Andhra Pradesh 75, State of Maharashtra v. Central 
G 
10 AIR 1955 SC 352 
. 
71 AIR 1963 SC 928 
72 AIR 1965 SC 1430 
73 (1969) 1 sec 255 
1• (1971) 3 sec 53 
H 
" (1974) 2 sec 376
SUPREME COURT ADVOCATES-ON-RECORD 
393 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Provinces Manganese Ore Co. Ltd.76, India Tobacco Co. Ltd. A 
v. Commercial Tax Officer, Bhavanipore77 , and Kolhapur 
Canesugar Works Ltd. v. Union of lndia78• It was submitted, 
that the general rule of construction was, that a repeal through 
a repealing enactment, would not revive anything repealed 
thereby. Reliance was also placed on, State of U.P. v. Hirendra B · 
Pal Sirigh79, Joint Action Committee of Air Line Pilots' 
Association of India v. Director General of Civil Aviation80, and 
State of Tamil Nadu v. K. Shyam Sunder81, to contend, that the 
. settled legal proposition was, whenever an Act was repealed, 
it must be considered as if ithad never existed. It was pointed C 
out, that consequent upon the instant repeal of the earlier 
provisions, the earlier provisions must be deemed to have 
been obliterated/abrogated/wiped out, wholly and completely. 
The instant contention was sought to be summarized by D 
asserting, that if a substituted provision was to be struck down, 
the question of revival of the original provision (which had been 
substituted, by the struck down provision) would not arise, as 
the provision which had been substituted, stood abrogated, 
and therefore had ceased to exist in the statute itself. It was 
E 
therefore submitted, that even if the challenge raised to the 
impugned constitutional amendment was to be accepted by 
this Court, the originally
enacted provisions of Articles 124 and 
217 would not revive. 
109.The learned Solicitor General additionally F 
contended, that the present challenge at the hands of the 
petitioners should not be entertained, as it has been raised 
prematurely. It was submitted, that the challenge raised by the 
petitioners was based on assumptions and presumptions, 
G 
10 (1977) 1 sec 643 
11 (1975) 3 sec 512 
" c2000) 2 sec 536 
•• c2011) 5 sec 305 
., c2011 l 5 sec 435 
" c2011i s sec 737 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A without allowing the crystallization of the impugned amendment 
to the Constitution. It was asserted, that the position would 
crystalise only after rules and regulations were framed under 
the NJAC Act. It was submitted, that the question of 
"independence of the judiciary", with reference to the 
B amendments made, could be determined only after the NJAC 
Act was made operational, by laying down the manner of its 
functioning. Since the pendency of the present litigation had 
delayed the implementation of the provisions of the 
amendment to the Constitution, as also to the NJAC Act, it 
C would be improper for this Court, to accede to a challenge 
based on conjectures and surmises. 
110. Mr. K. Parasaran, Senior Advocate, entered 
appearance on behalf of the State of Rajasthan. He submitted, 
o that he would be supporting the validity of the impugned 
constitutional amendment, as also, the NJACAct, and that, he 
endorsed all the submissions advanced on behalf of the Union 
of India. It was his contention, that Judges of the higher judiciary 
were already burdened with their judicial work, and as such, 
E they should not be seriously worried about the task of 
appointment of Judges, which by the impugned amendment, 
had been entrusted to the NJAC. In his view, the executive and 
the Parliament were accountable to the people, and therefore, 
they should be permitted to discharge the onerous 
F responsibility, of appointing
Judges to the higher judiciary. It 
was asserted, that the executive and the legislature would then 
be answerable, to the people of this country, for the 
appointments they would make. 
G 
111. On the issue of inclusion of two "eminent persons" 
in the six-Member NJAC, it was asserted, that the nomination 
of the "eminent persons" was to be made by the Prime Minister, 
the Chief Justice of India, and the Leader of the Opposition in 
the Lok Sabha. All these three individuals, being high ranking 
H constitutional functionaries, should be trusted, to discharge the
SUPREME COURT ADVOCATES-ON-RECORD 
395 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
responsibility bestowed on them, in the interest of the A 
"independence of the judiciary". It was submitted, that if 
constitutional functionaries, and the "eminent persons", could 
not be trusted, then the constitutional machinery itself would 
fail. It was pointed out, that this Court had repeatedly described, 
that the Constitution was organic in character, and it had an 
B 
inbuilt mechanism for evolving, with the changing times. It was 
asserted, that the power vested with the Parliament, under 
Article 368 to amend the provisions of the Constitution, was a 
"constituent power", authorizing the Parliament to reshape the 
Constitution, to adapt with the changing environment. It was C 
contended, that the above power vested in the Parliament could 
be exercised with the sole exception, that "the basic structure/ 
features" of the Constitution, as enunciated by the Supreme 
Court in the Kesavananda Bharati case10, could not be altered/ D 
changed. According to the learned senior counsel, the 
Constitution (99th Amendment) Act was an exercise of the 
aforestated constituent power, and that, the amendment to the 
Constitution introduced thereby, did not in any manner, impinge 
upon the "independence of the judiciary". 
E 
112. Referring to Article 124A, it was asserted, that the 
NJAC was a six-Member Commission for identifying, selecting 
and appointing Judges to the higher judiciary.
It could under 
no circumstances, be found wanting, with reference to the 
assertions made by the petitioners. It was pointed out, that 
F 
the only executive representative thereon being the Union 
Minister in charge of Law and Justice, it could not be inferred, 
that the executive would exert such influence through him, as 
would undermine the independence of the five other Members 
of the Commission. It was submitted, that the largest G 
representation of the Commission, was that of Judges of the 
Supreme Court, inasmuch as, the Chief Justice of India, and 
the two senior most Judges of the Supreme Court were ex 
officio Members of the NJAC. 
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