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
was an unhealthy practice that the 
political executive of the State was trying to establish since 
G around the time of Independence. This 'subterfuge' was 
deprecated on more than one occasion, as noticed above. 
H 
115. Another practice that the political executive was 
trying to establish was to recommend persons for appointment 
84 Paragraph 34
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695 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
as a judge of the High Court to the Chief Justice of that High 
A 
Court. In this context, it was also stated in Subhash Sharma 
(as quoted above) that: 'It has been increasingly felt over the 
decades that there has been an anxiety on the part of the 
government of the day to assert its choice in the ultimate 
selection of Judges.'85 This unequivocally indicates that the B 
malaise of executive interference in appointing judges to the 
superior judiciary, first highlighted in the Memorandum 
emanating from the Chief Justices Conference and then by . 
the LCI in its 14th Report, continued in some form or the other 
through the entire period from Independence till the early 1990s. C 
In addition, the recommendation given in the 14th Report of 
the LCI in Chapter 6 regarding the executive not being entitled 
to 'propose a nominee of its own and forward it to the Centre' 
was not given the due weight and consideration that it deserved D 
from the executive. 
116. Quite clearly, some complex issues arose in the 
matter of appointment of judges primarily due to the 
interference of the political executive and these needed 
consideration by a larger Bench. Well established and 
E 
accepted constitutional conventions were sought to be 
disregarded by the political executive. If the independence of 
the judiciary was to be maintained and parliamentary 
democracy was to be retained, the First Judges
case and 
the appointment process needed a fresh look. 
F 
Second Judges case- 6.10.1993 
117. As mentioned above, the Second Judges case 
was the result of an acknowledgement that: (1) The existing 
system of appointment of judges in which the executive had 
G 
the 'ultimate power' needed reconsideration since that 'ultimate 
power' was being abused; (2) The existing system of 
appointment of judges resulted in some appointments in which 
•• Paragraph 34 
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merit was overlooked due to executive interference or for 
extraneous considerations. The Chief Justice of the High Court 
was occasionally by-passed oy the political executive and a 
recommendation forthe appointment of a person as a judge 
of the High Court was made directly to the Union Government. 
B This unfortunate situation had continued for more than 40 years 
and an attempt to bring about a change was made and so a 
Constitution Amendment Bill was introduced in Parliament, but 
it lapsed. 
c 
118. In the Second Judges case it was held by Justice 
Pandian: (1) The selection and appointment of a proper and 
fit candidate to the superior judiciary is one of the inseparable 
and vital conditions for securing the independence of the 
judiciary.86 'The erroneous appointment of an unsuitable person 
o is bound to produce irreparable damage to the faith of the 
community in the administration of justice and to inflict serious 
injury to the public interest .. .' 87 (2) Yet another facet of the 
independence of the judiciary is the separation between the 
executive and the judiciary (including the superior judiciary)88 
E postulated by Article 50 of the Constitution. 89 (3) The 
Memorandum of Procedure forthe selection and appointment 
of judges filed by the Union of India along with the written 
submissions relating to the pre First Judges case period and 
the extant procedure as mentioned in the 121 st Report of the 
F 
LCI
relating to the post First Judges case period are more or 
less the same. They indicate that the recommendation for filling 
up a vacancy in the Supreme Court is initiated by the Chief 
Justice of India and the recommendation for filling up a vacancy 
in the High Court is initiated by the Chief Justice of the High 
G Court. The Chief Minister of a State may recommend a person 
86 Paragraph 49 
87 Paragraph 63 
88 Paragraph 81 
89 50. Separation of judiciary from executive - The State shall take steps to 
H 
separate the judiciary from the executive in the public services of the State.
SUPREME COURT ADVOCATES-ON-RECORD 
697 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
for filling up a vacancy in the High Court, but that is to be routed 
A 
only through the Chief Justice of the High Court. 90 (4) 
Reiterating the view expressed in Sankalchand Sheth and 
the First Judges case it was held that for the purposes of 
consultation, the materials before the President and the Chief 
Justice of India must be identical.91 (5) For the appointment of B 
a judge of the Supreme Court (under Article 124(2) of the 
Constitution) or a judge of a High Court (under Article 217(1) 
of the Constitution) consultation with the Chief Justice of India 
is mandatory.92 (6) In the process of constitutional consultation 
in selecting judges to the Supreme Court or the High Court C 
and transfer of judges of the High Court, the opinion of the 
Chief Justice of India is entitled to primacy.93 (?)Agreeing with 
the majority opinion written by Justice J.S. Verma, it was held 
that if there are weighty and cogent reasons for not accepting 
D 
the recommendation of the Chief Justice of India for the 
appointment of a judge, then the appointment may not be made. 
However, if the 'weighty and cogent' reasons are not acceptable 
to the Chief Justice of India, and the recommendation is 
reiterated, then the appointment shall be made. 94 (8) The E 
majority opinion in the First Judges case regarding the 
primacy of the executive in the matter of appointment of judges 
was overruled.95 
119.
Justice Ahmadi dissented with the opinion of the 
majority and concluded: (1) Judicial independence is ingrained F 
in our constitutional scheme and Article 50 of the Constitution 
'illuminates it'. 96 (2) The First Judges case was not required 
90 Paragraphs 95 to 99. Though such a practice exists and is accepted, there 
have been some aberrations in this regard as mentioned in the 14" Report of 
the LCI and in the Conference of Chief Justices. 
91 Paragraph 164 
92 Paragraph 172 
93 Paragraph 197 and 209 
94 Paragraph 212 
95 Paragraph 254 
96 Paragraph 313 
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to be overruled but on the question of primacy in the matter of 
appointment of judges, the opinion of the Chief Justice of India 
is entitled to 'graded weight' .97 
120. Justice Kuldip Singh agreed with the majority and 
8 
laid great stress on constitutional conventions that had evolved 
over several decades. The learned judge held: (1) Security of 
tenure is not the only source of independence of the judiciary 
but 'there has to be an independent judiciary as an institution.'98 
(2) Independence of the judiciary is inextricably linked and 
c connected with the constitutional process of appointment of 
judges of the higher judiciary. There cannot be an independent 
judiciary when the power of appointment of judges vests in the 
executive.99 (3) The President is bound by the advice given by 
the Council of Ministers. 100 (4) A constitutional convention is 
D established since the Government of India Act, 1935 (I would 
add the words 'at least') that the appointment of judges was 
invariably made with the concurrence of the Chief Justice of 
India. The opinion and recommendation of the Chief Justice 
of India in the matter of appointment of judges binds the 
E 
executive. 101 (5) In the matter of appointment of judges, 
consultation with the Chief Justice of India is mandatory.102 (6) 
In the consultation process under Article 124(2) and 217(1) of 
the Constitution, the advice and recommendation of the Chief 
Justice of India
is binding on the executive and must be the 
F 
final word. The majority view in the First Judges case does 
97 Paragraph 303 and 313. It was observed in paragraph 303: "If the President 
has to act on the aid and advice of the Council of Ministers it is difficult to hold 
that he is bound by the opinion of the Chief Justice of India unless we hold 
that the Council of Ministers including the Prime Minister would be bound by 
G 
the opinion of the Chief Justice of India, a construction which to our mind is 
too artificial and strained to commend acceptance." 
98 Paragraph 334 
99 Paragraph 335 
100 Paragraph 277, 356, 383 and 411 
101 Paragraph 359, 371,373 and 376. The figures relating to the appointment 
of judges have been mentioned in paragraphs 367 and 369. 
H 
102 Paragraph 377 and 411
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
not lay down the correct law.103 
(7) For the purposes of Article 124(2) and 217(1) of the 
Constitution, the Chief Justice of India and the Chief Justice of 
the High Court mean the functionaries representing their 
respective Court. 104 
699 
A 
B 
121. One of the more interesting facts pointed out by 
Justice Kuldip Singh is that from 1st January, 1983 (after the 
decision in the First Judges case) till 1 Qth April, 1993 (that is 
during a period of ten years) the opinion of the Chief Justice of 
India was not accepted by the President in as many as seven C 
cases. This is worth contrasting with a part of the period before 
the 'ultimate power' theory was propounded when the opinion 
of the Chief Justice of India was not accepted by the President 
only in one case and in that case, the opinion of the Chief Justice 
of the High Court (not the political executive) was accepted. 
D 
This is what the learned judge had to say: 
"Mr S.K. Bose, Joint Secretary, Department of Justice, 
Ministry of Law and Justice has filed an affidavit dated 
April 22, 1993 before us. In para 6 of the said affidavit it E 
is stated as under: 
"As regards the appointments of Judges made, not in 
consonance with the views expressed by the Chief 
Justice of India, it is respectfully submitted that since 
January 1, 1983 to April 10, 1993, there have been 
F 
only seven such cases, five of these were in 1983 (2 
in January
1983, 2 in July 1983, 1 in August 1983); 
one in September 1985 and one in March 1991, out 
of a total of 547 appointments made during this 
G 
period." 
It is thus obvious from the facts and figures given by the 
executive itself that in actual practice the 
103 Paragraph 385, 387 and 411 
104 Paragraph 392 and 411 
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recommendations of the Chief Justice of India have 
invariably been accepted."105 
122. Justice Verma speaking for the majority held: (1) 
Independence of the judiciary has to be safeguarded not only 
8 
by providing security of tenure and other conditions of service, 
but also by preventing political considerations in making 
appointments of judges to the superior judiciary. 106 
(2) In the matter of appointment of judges, primacy was 
given to the executive in the Government of India Act, 1919 
C and the Government of India Act, 1935 but in the constitutional 
scheme, primacy of the executive is excluded. 107 
(3) The Chief Justice of India and the Chief Justice of the 
High Court are 'best equipped to know and assess the worth 
0 
of a candidate, and his suitability for appointment as a superior 
judge.' In the event of a difference of opinion between the 
executive and the judiciary, the opinion of the Chief Justice of 
India should have the greatest weight. [This echoed Dr. 
Ambedkar's view that consultation would be between persons 
E who are well qualified to give advice in matters of this sort.] 
Therefore, since primacy is not with the executive, then in such 
a situation, it must lie with the Chief Justice of lndia. 108 This 
certainly does not exclude the executive from the appointment 
process. The executive might be aware (unlike a Chief Justice) 
F of some antecedents or some information relatable to the
personal character or trait of a lawyer or a judge which might 
have a bearing on the potential of a person becoming a good 
judge: 1o9 This might form the basis for rejecting a 
recommendation for the appointment of a person as a judge 
G by the Chief Justice of lndia. 110 
105 Paragraphs 369 and 370 
106 Paragraph 44 7 
107 Paragraph 444, 446, ~48 and 450 
108 Paragraph 450, 451, 455, 478 and 486 
109 Paragraph 462 
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110 Paragraph 478(7)
SUPREME COURT ADVOCATES-ON-RECORD 
701 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
(4) Primacy of the opinion of the Chief Justice of India is A 
not to his/her individual opinion but to the collective opinion of 
the Chief Justice of India and his/her senior colleagues or those 
who are associated with the function of appointment of 
judges. 111 Therefore, the President may not accept the 
recommendation of a person for appointment as a judge, if B 
the recommendation of the Chief Justice of India is not 
supported by the unanimous opinion of the other senior 
judges. 112 The President may return for reconsideration a 
unanimous recommendation for good reasons. However, in 
the latter event, if the Chief Justice of India and the other judges C 
consulted by him/her, unanimously reiterate the 
recommendation 'with reasons for not withdrawing the 
recommendation, then that appointment as a matter of healthy 
convention ought to be made.' 113 (The key word here is D 
unanimous - both at the stage of the initial recommendation 
and at the stage of reiteration). 
(5) For appointing a judge of the Supreme Court or the 
High Court, consultation with the Chief Justice of India or the 
Chief Justice of the High Court is mandatory.114 
E 
(6) The President in Articles 124(2) and 217(1) of the 
Constitution means the President acting in accordance with 
the advice of the Council of Ministers with the Prime Minister 
atthe head.115 
(7) The advice given by the Council of Ministers to
the 
President should be in accord with the Constitution. Such an 
advice is binding on the President. Since the opinion of the 
Chief Justice of India (representing the Judiciary) has finality, 
F 
the advice of the Council of Ministers to the President must be G 
111 Paragraph 456 and 466 
112 Paragraph 478(8) 
113 Paragraph 478(7) 
114 Paragraph 448 
115 Paragraph 457 
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in accordance with the opinion of the Chief Justice of lndia.116 
(8) The convention is that the appointment process is 
initiated by the Chief Justice of India for the appointment of a 
judge to the Supreme Court and by the Chief Justice of the 
8 
High Court for the appointment of a judge to the High Court. 
There is no reason to depart from this convention. 111 
(9) The law laid down in the First Judges case is not the 
correct view.118 
C 
123. In his otherwise dissenting opinion, Justice 
Punchhi supported the view taken by Justice Verma to the 
extent that the executive could not disapprove the views of the 
Chief Justice of India or the views of the Chief Justice of the 
High Court (as the case may be) when a recommendation is 
0 
made for the appointment of a judge to a superior court. 119 
124. The most significant feature of the Second Judges 
case is that it introduced what has come to be called a 
'collegium system' of consultation for the appointment of judges 
of the Supreme Court and the High Courts. As far as the Chief 
E Justice of India is concerned, the collegium system broad-
based his/her role in the appointment of judges of the High 
Courts and the Supreme Court and.(in one sense) diluted his/ 
her role in the appointment process by taking it out of the 
individualized or personalized role of the Chief Justice of India 
F as thought of by Dr. Ambedkar. The consultative role of the 
Chief Justice of India
in Article 124 of the Constitution was 
radically transformed through a pragmatic interpretation of that 
provision. How did this happen? 
G 
125. In the Second Judges case certain norms were 
laid down by Justice Verma in the matter of appointment of 
judges. These norms were: For the appointment of judges in 
116 Paragraph 457 and 476 
117 Paragraph 478(10) and 486(2) 
118 Paragraph 486 
H 
119 Paragraph 500
SUPREME COURT ADVOCATES-ON-RECORD 
703 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the Supreme Court, the Chief Justice of India must ascertain A 
the views of the two senior-most judges of the Supreme Court 
and of the senior-most judge in the Supreme Court from the 
High Court of the candidate concerned. Through this process, 
the individual opinion of the Chief Justice of India was 
substituted by the collective opinion of several judges. In this 
B 
sense the opinion of the Chief Justice of India in the consultative 
process was made broad-based and ceased to be 
individualized. At this stage it is worth recalling the words of 
Dr. Ambedkar that 'the Chief Justice, despite his eminence, 
had aJ! the failings, sentiments and prejudices of common C 
people.' The apprehension or fear that Dr. Ambedkar had in 
this regard in case the Chief Justice of India were to act in an 
individual or personal capacity was now buried. 120 A somewhat 
similar norm was laid down for consultation for the appointment D 
of a judge of the High Court. This is what was said: 
"This opinion has to be formed in a pragmatic manner 
and past practice based on convention is a safe guide. 
In matters relating to appointments in the Supreme Court, 
the opinion given by the Chief Justice of India in the 
E 
consultative process has to be formed taking into 
account the views of the two seniormost Judges of the 
Supreme Court. The Chief Justice of India is also 
expected to ascertain the views of the
senior-most Judge 
of the Supreme Court whose opinion is likely to be 
F 
significant in adjudging the suitability of the candidate, 
by reason of the fact that he has come from the same 
High Court, or otherwise. Article 124(2) is an indication 
that ascertainment of the views of some other Judges of 
the Supreme Court is requisite. The object underlying G 
Article 124(2) is achieved in this manner as the Chief 
Justice of India consults them for the formation of his 
120 According to the learned Attorney-General, this would have made Dr. 
Ambedkar turn in his grave. Not so and quite to the contrary. 
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opinion. This provision in Article 124(2) is the basis for 
the existing convention which requires the Chief Justice 
of India to consult some Judges of the Supreme Court 
before making his recommendation. This ensures that 
the opinion of the Chief Justice of India is not merely his 
B 
individual opinion, but an opinion formed collectively by 
a body of men at the apex level in the judiciary. 
In matters relating to appointments in the High Courts, 
the Chief Justice of India is expected to take into account 
c 
the views of his colleagues in the Supreme Court who 
are likely to be conversant with the affairs of the 
concerned High Court. The Chief Justice of India may 
also ascertain the views of one or more senior Judges 
of that High Court whose opinion, according to the Chief 
o 
Justice of India, is likely to be significant in the formation 
of his opinion. The opinion of the Chief Justice of the 
High Court would be entitled to the greatest weight, and 
the opinion of the other functionaries involved must be 
given due weight, in the formation of the opinion of the 
E 
Chief Justice of India. The opinion of the Chief Justice of 
the High Court must be formed after ascertaining the 
views of at least the two seniormost Judges of the High 
Court."121 
F 
126. The importance of the role of the Chief Justice of 
India was acknowledged in that it was observed that the 
constitutional convention was that no appointment
should be 
made by the President under Article 124(2) and Article 217(1) 
of the Constitution unless it was in conformity with the final 
G opinion of the Chief Justice of India. It was said: 
H 
'The opinion of the Chief Justice of India, for the purpose 
of Articles 124(2) and 217(1 ), so given, has primacy in 
the matter of all appointments; and no appointment can 
"' Paragraph 478(1 )
SUPREME COURT ADVOCATES-ON-RECORD 
705 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
be made by the President under these provisions to the A 
Supreme Court and the High Courts, unless it is in 
conformity with the final opinion of the Chief Justice of 
India, formed in the manner indicated."122 
127. The 'manner indicated' was that if a B 
recommendation is returned by the executive (for cogent 
reasons) to the Chief Justice of India and the Chief Justice of 
India reiterates the recommendation with the unanimou~ 
agreement of the judges earlier consulted, then the 
appointment should be made 'as a matter of healthy 
convention'. This is what was said in this context: 
c ' 
"Non-appointment of anyone re~ommended, on the 
ground of unsuitability, must be for good reasons, 
disclosed to the Chief Justice of India to enable him to 
reconsider and withdraw his recommendation on those D 
considerations. If the Chief Justice of India does not find 
it necessary to withdraw his recommendation even 
thereafter, but the other Judges of the Supreme Court 
who have been consulted in the matter are of the view 
that it ought to be withdrawn, the non-appointment of that E 
person, for reasons to be recorded, may be permissible 
in the public interest. If the non-appointment in a rare 
case, on this ground, turns out to be a mistake, that 
mistake in the ultimate public interest is less harmful than 
F 
a wrong appointment. However, if after due consideration 
of the reasons disclosed to
the Chief Justice of India, 
that recommendation is reiterated by the Chief Justice 
of India with the unanimous agreement of the Judges of 
the Supreme Court consulted in the matter, with reasons G 
for not withdrawing the recommendation, then that 
appointment as a matter of healthy convention ought to 
be made."123 
122 Paragraph 478(5) 
123 Paragraph 478(7) 
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128. The norms took the form of conclusions that became 
binding on the Judiciary and the Executive. It is not necessary 
to reproduce the conclusions arrived at. 
129. An important aspect of the appointment process, 
8 
which was adverted to by Justice Verma, is the constitutional 
convention that the recommendation must be initiated by and 
must originate from the Chief Justice of the High Court (for 
appointment to the High Court) and from the Chief Justice of 
India (for appointment to the Supreme Court). In the event the 
c Chief Minister of a State recommends a person for 
appointment as a judge of the High Court, it must be routed 
only through the Chief Justice of the High Court. It is then for 
the said Chief Justice to consult his colleagues (and others, if 
necessary) and decide whether or not the person should be 
o formally recommended. If the Chief Justice of the High Court 
recommends that person, the procedure as mentioned in the 
Second Judges case would thereafter follow. If the Chief 
Justice of the High Court decides not to recommend that 
person for appointment, the matter stands closed and, 
E therefore, the question of making an appointment without the 
consent of the Chief Justice of India simply does not and cannot 
arise. It is this constitutionally and conventionally accepted 
procedure, which is apparently not acceptable to the political 
executive, that has led to the political executive by-passing
F the Chief Justice of a High Court and directly recommending 
to the Union Government a person for appointment as a judge 
of the High Court. Be that as it may, the majority view expressed 
in the Second Judges case restored the constitutional 
position envisaged by Dr: Ambedkar by diluting the individual 
G authority of the Chief Justice of India and conferring it on a 
collegium of judges, which is perhaps in consonance with the · 
views of Dr.Ambedkar. 
130. According to the learned Attorney-General, these 
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SUPREME COURT ADVOCATES-ON-RECORD 
707 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
conclusions turned Article 124(2) and Article 217(1) of the A 
Constitution 'on their head' and even Justice Verma, the author 
of the judgment felt that the decision required a rethink. The 
reference was to an interview given by Justice Verma post his 
retirement. In that, it was said by Justice Verma: 
B 
"My 1993 judgment which holds the field, was very much 
misunderstood and misused. It was in that context that I 
said the working of the judgment now for some time is 
raising serious questions, which cannot be called 
unreasonable. Therefore some kind of rethink is c 
required."124 
131. It appears that the misunderstanding of the decision 
in the Seconc;f Judges case continues even today, especially 
by the political executive. The misunderstanding is not due to 
any lack of clarity in the decision rendered by this Court but D 
due to the discomfort in the 'working of the judgment'. I say 
this because it was submitted by the learned Attorney-General 
and learned counsel for some States that the Second Judges 
case left the executive with no role (or no effective role) to play 
in the appointment of a judge of the Supreme Court or the 
E 
High Court particularly since the opinion of the executive is 
now rendered meaningless. Nothing can be further from the 
truth. The executive continues to have a vital role to play and in 
some ca·ses, the final say in the appointment of a judge -
the 
F 
misunderstanding of the judgment is due to the completely and 
regrettably defeatist attitude of the Union of India and the States 
or their view that in the matter of appointment of judges, it is 
their way or the highway. The Constitution of India is a sacred 
document and not a Rubik's cube that can be manipulated 
G 
and maneuvered by the political executive any which way only . 
to suit its immediate needs. 
132. In an article found on the website of the Tamil Na du 
124 The Frontline, Volume 25 Issue 20 September 27, 2008 to October 10,2008 
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State Judicial Academy, Justice Verma adverted to the 
appointment process in the Second Judges case and the 
role of the executive and said: 
B 
c 
D 
E 
F 
G 
H 
"The clear language of the decision leaves no room for 
any doubt that the executive has a participatory role in 
these appointments; the opinion of the executive is 
weightier in the area of antecedents and personal 
character and conduct of the candidate; the power of non-
appointment on this ground is expressly with the 
executive, notwithstanding the recommendation of the 
CJI; and that doubtful antecedents etc. are alone sufficient 
for non-appointment by the executive. The decision also 
holds that the opinion of the judicial collegium, if not 
unanimous does not bind the executive·to make the 
appointment. 
Some reported instances in the recent past of the 
executive failing to perform its duty by exercise of this 
power even when the recommendation of the judicial 
collegium was not unanimous and the then President of 
India had returned it for reconsideration, are not only 
inexplicable but also a misapplication of the decision, 
which the CJ I, Balakrishnan rightly says is binding during 
its validity. Such instances only prove the prophecy of 
Dr. Rajendra Prasad that the Constitution will be as good 
as the people who work it. Have any system you like, its 
worth and efficacy will depend on the worth of the people 
who work it! It is, therefore, the
working of the system 
that must be monitored to ensure transparency and 
accountability."125 
A little later in the article Justice Verma says (and this is 
also adverted to in the interview referred to by the learned 
Attorney-General): 
125 ht!p-f/www tnsja to ojc jo/artjc!e/Judjcia!%20!ndependence%20JSVJ pdf
SUPREME COURT ADVOCATES-ON-RECORD 
709 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
'The recent aberrations are in the application of the . A 
Second Judge's case in making the appointments, and 
not because of it. This is what I had pointed out in my 
letter of 5 December 2005 to CJI, Y.K.Sabharwal with 
copy to the two senior most judges, who included the 
present CJI, K.G. Balakrishnan." 
B 
133. The misunderstanding is, therefore, of the.political 
·executive and no one else. However, as pointed out by the 
learned Attorney-General, the merits or demerits of the Second 
Judges case is not in issue after the 991h Constitution c 
Amendment Act and therefore no further comment is made, 
although it must be said, quite categorically, that the political 
executive has completely misunderstood the scope and impact 
of the Second Judges case and the working of the collegium 
system. 
D 
Third Judges case - 28.10.1998 
134. Special Reference No. 1of1998 is commonly 
referred to as the Third Judges case. The President sought 
the advisory opinion of this Court under Article 143 of the 
E 
Constitution on the foUowing, amongst other, questions: 
"( 1) whether the expression 'consultation with the Chief 
Justice of India' in Articles 217(1) and 222(1) requires 
consultation with a plurality of Judges in the formation of 
the opinion of the Chief Justice of India or does the sole 
F 
individual opinion of the Chief Justice of India constitute 
consultation within the meaning of the
said articles. 
(3) whether Article 124(2) as interpreted in the said 
judgment [Second Judges case] requires the Chief G 
Justice of India to consult only the two seniormost Judges 
or whether there should be wider consultation according 
to past practice. 
(4) whether the Chief Justice of India is entitled to act 
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solely in his individual capacity, without consultation with 
other Judges of the Supreme Court in respect of all 
materials and information conveyed by the Government 
of India for non-appointment of a Judge recommended 
for appointment;" 
135. At the outset, it must be noted that the learned 
Attorney-General stated at the hearing of the Presidential 
Reference that the Central Government was neither seeking a . 
review nor a reconsideration of the Second Judges case. 
C Therefore, the answers to the Presidential Reference do not 
depart from the conclusions arrived at by this Court in the 
Second Judges case. In that sense, this opinion did not take 
the substantive discussion much further though it substantially 
resolved some procedural issues and filled in the gaps relating 
o to the process of appointment of judges to the superior 
judiciary. In any event, the answers to the three questions 
mentioned above are: 
E 
F 
G 
H 
"1. The expression "consultation with the Chief Justice 
of India" in Articles 217(1) and 222(1) of the Constitution 
of India requires consultation with a plurality of Judges in 
the formation of the opinion of the Chief Justice of India. 
The sole individual opinion of the Chief Justice of India 
does not constitute "consultation" within the meaning of 
the said articles. 
3. The Chief Justice of India must make a 
recommendation to appoint a Judge of the Supreme 
Court and to transfer a Chief
Justice or puisne Judge of 
a High Court in consultation with the four seniormost 
puisne Judges of the Supreme Court. Insofar as an 
appointment to the High Court is concerned, the 
recommendation must be made in consultation with the 
two seniormost puisne Judges of the Supreme Court. 
4. The Chief Justice of India is not entitled to act solely in
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATIONv. U.0.1. [MADAN B. LOKUR, J.] 
his individual capacity, without consultation with other A 
Judges of the Supreme Co.urt, in respect of materials 
and information conveyed by the Government of India 
for non-appointment of a Judge recommended for 
appointment."126 
136. The decision in the Second Judges case read with 
the opinion given by this Court to the various questions raised 
B 
in the Presidential Reference or the Third Judges case fully 
settled the controversies surrounding the procedure to be 
adopted in the appointment of judges to the superior judiciary. c 
Issues of primacy of views and consultation with the Chief 
Justice of India were all answered by the decision and the 
opinion. 
137. It is important to note that the Third Judges case 
modified one important norm or conclusion of the Second D 
Judges case. The modification was that the 'collegium' for 
appointment of judges in the Supreme Court was expanded 
to consist of the Chief Justice of India and four senior-most 
judges rather than the two senior-most judges as concluded in 
the Second Judges case. In this manner, the consultation with 
E 
the Chief Justice of India was further broad-based. It was 
clarified in conclusion 9 as follows: 
"9. Recommendations made by the Chief Justice of India 
without complying with the norms and requirements of F 
the consultation process, as aforestated, are not binding 
upon the Government of India." 
This
conclusion is important, but seems to have been 
ignored or overlooked by the President. 
Samsher Singh's case 
138. For a complete picture of the judicial 
pronouncements on the subject, it is also necessary to refer to 
126 Paragraph 44 
G 
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A the decision rendered by this Court in Samsher Singh v. State 
of Punjab.121 
139. This case related to the termination of the services 
of two officers of the subordinate judicial service by the 
8 
Governor of the State. The issue was whether the Governor 
could exercise his discretion in the matter personally or should 
act on the advice of the Council of Ministers. The judicial 
officers contended that the Governor was obliged to exercise 
his personal discretion and reliance was placed on Sardari 
c Lal v. Union of lndia 128 in which it was held that for invoking 
the 'pleasure doctrine' under Article 311 (2) of the Constitution, 
the personal satisfaction of the President is necessary for 
dispensing with an inquiry under clause (c) of the proviso to 
Article 311 (2) of the Constitution. On the other hand, the State 
o contended that the Governor was obliged to act only on the 
. advice of the Council of Ministers. 
140. This Court speaking through Chief JusticeA.N. Ray 
(for himself and four other learned judges) overruled Sardari 
Lal and held that the decision did not correctly state the law. It 
E was held that under the Rules of Business, the decision of the 
concerned Minister or officer is the decision of the President 
or the Governor as the case may be. It was then concluded: 
"For the foregoing reasons we hold that the President or 
F 
. the Governor acts on the aid and advice of the Council 
of Ministers with
the Prime Minister at the head in the 
case of the Union and the Chief Minister at the head in 
the case of State in all matters which vests in the 
Executive whether those functions are executive or 
· G 
legislative i[1 character. Neither the President nor the 
Governor is to exercise the executive functions 
personally. The present appeals concern the appointment 
of persons other than District Judges to the Judicial 
127 (1974) 2 SCC 831 (Seven Judges Bench) 
H 
128 0 971 ) 1 sec 411 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
713 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Services of the State which is to be made by the Governor A 
as contemplated in Article 234 of the Constitution after 
consultation with the State Public Service Commission 
and the High Court. Appointment or dismissal or removal 
of persons belonging to the Judicial Service of the Sta"te 
is not a personal function but is an executive functiqn of B 
the Governor exercised in accordance with the rules in 
that behalf under the Constitution."129 
141. In a separate but concurring judgment authored by 
Justice Krishna Iyer (for himself and Justice Bhagwati) the view c 
expressed by Chief Justice Ray was accepted in the following 
words: 
"We declare the law of this branch of our Constitution to 
be that the President and Governor, custodians of all 
executive and other powers under various articles shall, 
D 
by virtue of these provisions, exercise their formal 
constitutional powers only upon and in accordance with 
the advice of their Ministers save in a few well-known 
exceptional situations. Without being dogmatic pr 
exhaustive, these situations relate to (a) the choice of E 
Prime Minister (Chief Minister), restricted though this 
choice is by the paramount consideration that he should 
command a majority in the House; (b) the dismissal of a 
Government which has lost its majority in the House, but F 
refuses to quit office; (c) the dissolution of the House 
where an appeal to the country
is necessitous, although 
in this area the head of State should avoid getting 
involved in politics and must be advised by his Prime 
Minister (Chief Minister) who will eventually take the 
G 
responsibility for the step. "130 
142. An additional reason was given by the two learned 
judges for coming to this conclusion and that is also important 
129 Paragraph 88 
"' Paragraph 154 
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A 
for our present purposes. The additional reason relates to the 
independence of the judiciary. For this, reference was made 
to Jyoti Prakash Mitter v. Chief Justice, Ca/cutta.131 The 
question in that case related to the determination of the age of 
a !>itting judge of the High Court under Article 217(3) of the 
B 
Constitution.132 This Court held that the age determination 
should be by the President uninfluenced by the views of the 
executive. This was on the ground that were the executive to 
make the determination of the age of a sitting judge, it would 
'seriously affect the independence of the Judiciary.' This view 
C was subsequently reiterated in Union of India v. Jyoti 
Prakash Mitter. 133 
143. The learned judges then held, on the basis of the 
scheme of the Constitution that had already been adverted to, 
o that the President means the Council of Ministers and the 
independence of the judiciary has been safeguarded by Article 
217(3) of the Constitution by making mandatory the consultation 
with the Chief Justice of India in regard to age determination. 
This would prevent the possibility of extraneous considerations 
E 
entering into the decision of the Minister if he/she departs from 
the views of the Chief Justice of India. It was held that in all 
conceivable cases, consultation with the Chief Justice of India 
should be accepted by the executive and if there is a departure 
from the views of the Chief Justice
of India, the Court can 
F 
examine the issue in the light of the available facts. In such a 
'sensitive subject' the last word should be with the Chief Justice 
of India. On this interpretation, it becomes irrelevant who 
formally decides the issue. This is what was held: 
G 
131 [1965) 2 SCR 53 (Five Judges Bench) 
132 217. Appointment and conditions of the office of a Judge of a High 
Court.-
(3) If any question arises as to the age of a Judge of a High Court, the 
question shall be decided by the President after consultation with the Chief 
Justice of India and the decision of the President shall be final. 
H 
'33 (1971) l SCC396(FivcJudgesBench)
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
"In the light of the scheme of the Constitution we have A 
already referred to, it is doubtful whether such an 
interpretation as to the personal satisfaction of the 
President is correct. We are of the view thatthe President 
means, for all practical purposes, the Minister or the 
Council of Ministers as the case may be, and his opinion, 
B 
satisfaction or decision is constitutionally secured when 
his Ministers arrive at such opinion satisfaction or 
decision. The independence of the Judiciary, which is a 
cardinal principle of the Constitution and has been relied 
on to justify the deviation, is guarded by the relevant article C 
making consultation with the Chief Justice of India 
obligatory. In all conceivable cases consultation with that 
highest dignitary of Indian justice will and should be 
accepted by the Government of lridia and the Court will 
D 
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 
E 
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."134 
F
144. This decision is important for three key reasons: 
(1) It recognized, judicially, the independence of the judiciary. 
(This was before the First Judges case which recognized 
that the independence of the judiciary was a basic feature of 
the Constitution). (2) It cleared the air by concluding that the G 
President was obliged to act on the advice of the Council of 
Ministers, even on the issue of appointment of judges. This 
was 'formalized' by the Constitution (Forty-second Amendment) 
134 Paragraph 149 
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A 
Act, 1976. (3) In a sense, this decision was a precursor to the 
primacy conclusion in the Second Judg.es case with the last 
word on the subject being with the Chief Justice of India. 
145. There are two observations that need to be made 
B at this stage. Firstly, Justice Krishna Iyer penned the decision 
in Samsher Singh on behalf of Justice Bhagwati as well. 
Surprisingly, Justice Bhagwati did not refer to this decision in 
the First Judges case. The significance of this failure is that 
while in Sams her Singh it was held by Justice Bhagwati that 
c the 'last word' must belong to the Chief Justice of India, in the 
First Judges case it was held by Justice Bhagwati that the 
'ultimate power' is with the executive. This completely divergent 
view, though in different circumstances, is inexplicable since 
the underlying principle is the same, namely, the status of the 
o Chief Justice of India with reference to the affairs concerning 
the judiciary. The second observation is that the 'last word' 
theory was not and has not been questioned by the executive 
in any case, even in the Second Judges case. Therefore, the 
'last word' principle having been accepted, there is now no 
E 
reason to go back on it or to repudiate it. It may be mentioned 
in the 'last word' context that ever since the Constitution came 
to be enacted, writes Granville Austin, quoting from Chief 
Justice Mehr Chand Mahajan's 'A Pillar of Justice': 
F 
G
"Nehru 'has always acted in accordance with the advice 
of the CJI', he recalled, except in rare circumstances, 
despite efforts by state politicians with 'considerable pull' 
to influence him."135 
Sankalchand Sheth's case 
146. Another decision of considerable significance is 
Union of India v. Sankalchand Himatlal Sheth.136 That case 
pertained to the transfer of judges from one High Court to 
135 Granville Austin: Working a Democratic Constitution page131 
H 
136 (1977) 4 sec 193 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
another and the interpretation of Article 222(1) of the A 
Constitution.137 Referring to the independence of the judiciary 
as also Article 50 of the Constitution it was said by Justice Y.V. 
Chandrachud: 
"Having envisaged that the judiciary, which ought to act B 
as a bastion of the rights and freedom of the people, 
must be immune from the influence and interference of 
the executive, the Constituent Assembly gave to that . 
concept a concrete form by making various provisions 
to secure and safeguard the independence of the c 
judiciary. Article 50 of the Constitution, which contains a 
Directive Principle of State Policy, provides that the State 
shall take steps to separate the judiciary from the 
executive in the public services of the State." 
147. On the meaning of consultation by the President D 
with the Chief Justice of India in the context of Article 222 of 
the Constitution, it was held that it has to be full and effective 
consultation and not formal or unproducti~e. It was said: 
"Article 222(1) which requires the President to consult E 
the Chief Justice of India is founded on the principle that 
in a matter which concerns the judiciary vitally, no 
decision ought to be taken by the executive without 
obtaining the views of the Chief Justice of India who, by 
training and experience, is in the best position to consider F 
the situation fairly, competently and objectively. But
there 
can be no purposeful consideration of a matter, in the 
137 222. Transfer of a Judge from one High Court to another.-(1) The 
President may, after consultation with the Chief Justice of India, transfer a 
Judge from one High Court to any other High Court. 
G 
(2) When a Judge has been or is so transferred, he shall, during the period 
he serves, after the commencement of the Constitution (Fifteenth Amendment) 
Act, 1963, as a Judge of the other High Court, be entitled to receive in addition 
to his salary such compensatory allowance as may be determined by 
Parliament by law and, until so determined, such compensatory allowance 
as the President may by order fix. 
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B 
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absence of facts and circumstances on the basis of 
which alone the nature of the problem involved can be 
appreciated and the right decision .taken. It must, 
therefore, follow that while consulting the Chief Justice, 
the President must make the relevant data available to 
him on the basis of which he can offer to the President 
the benefit of his considered opinion. If the facts 
necessary to arrive at a proper conclusion are not made 
available to the Chief Justice, he must ask for them 
because, in casting on the President the obligation to 
consult the Chief Justice, the Constitution at the same 
time must be taken to have imposed a duty on the Chief 
Justice to express his opinion on nothing less than a full 
consideration of the matter on which he is entitled to be 
consulted. The fulfilment by the President, of his 
constitutional obligation to place full facts before the Chief 
Justice and the performance by the latter, of the duty to 
elicit facts which are necessary to arrive at a proper 
conclusion are parts of the same process and are 
complementary to each other. The faithful observance of 
these may well earn a handsome dividend useful to the 
administration of justice. Consultation within the meaning 
of Article 222(1 ), therefore, means full and effective, not 
formal or unproductive, consultation."138 
F 
148. It was observed that though 'consultation' did not 
mean 'concurrence' yet, as held in
Samsher Singh 
consultation with the Chief Justice of India should be accepted 
and in such a sensitive subject the last word must belong to 
the Chief Justice of India. It was noted that if there is a departure 
G from the counsel of the Chief Justice of India, the Court would 
have the opportunity to examine if any extraneous 
considerat1ons entered into the decision. 139 
H 
"' Paragraph 37 
139 Paragraph 41
SUPREME COURT ADVOCATES-ON-RECORD 
719 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
149. This view was reiterated by Justice Krishna lyer(for A 
himself and Justice Fazl Ali).140 Significantly, it was added that: 
'It seems to us that the word, 'consultation' has been used in 
Article 222 as a matter of constitutional courtesy in view of the 
fact that two very high dignitaries are concerned in the matter, 
namely, the President and the Chief Justice of lndia.'141 
150. The greater significance of Sankalchand Sheth 
lies in the conclusion, relying upon R. Pushpam, that for a 
meaningful consultation, both parties must have for 
consideration full and identical facts. It was said: 
"The word 'consult' implies a conference of two or more 
persons or an impact of two or more minds in respect of 
B 
c 
a topic in order to enable them to evolve a correct, or at 
least, a satisfactory solution". In order that the two minds 
may be able to confer and produce a mutual impact, it is D 
essential that each must have for its consideration full 
and identical facts, which can at once constitute both the 
source and foundation of the final decision."142 
151. This view was accepted in the First Judges case E 
by Justice Bhagwati,143 Justice Fazal Ali, 144 Justice V.D. 
Tulzapurkar145 and Justice D.A. Desai.146 It was also accepted 
in the Second Judges case by Justice Pandian.147 
Memorandum of Procedure- 30.6.1999 
152. Following up on the decision and opinion rendered 
in the Second
Judges case and the Third Judges case, the 
Minister for Law in the Government of India framed and 
prepared one Memorandum of Procedure for the appointment 
"' Paragraph 115 
141 Paragraph 115 
142 Paragraph 39 
143 Paragraph 30 
144 Paragraph 563, 564 and 569 
1" Paragraph 632 and 663 
140 Paragraph 848 and 849 
147 Paragraphs 129 to 133 and 164 
F 
G 
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A of a judge of the Supreme Court and another for the 
appointment of a judge of the High Court. These were shared 
with the Chief Justice of India. None of the each successive 
Chief Justices of India have complained or criticized any of 
the Memoranda or adversely commented on them, or at least 
· B we have not been told of any such complaint or objection. No 
one, including any successive Law Minister of the Government 
of India, complained that the Memoranda were unworkable or 
caused any hindrance or delay in the appointment of judges 
or did not correctly reflect the views of this Court in the two 
C decisions mentioned above or that they did not conform to 
any provision of the Constitution, either in letter or in spirit or 
even otherwise, or at least we have not been told of any such 
constraint. These Memoranda remained operational and the 
0 
appointment of judges to the superior judiciary made 
subsequent thereto has been in conformity with them. No one 
complained about the inability to effectively work any 
Memorandum of Procedure. 
153. We were invited by Mr. Fali S. Nariman to mention 
E the procedure for the appointment of judges both in public 
interest and for reasons of transparency. The Memorandum of 
Procedure for the appointment of judges of the Supreme Court 
and the High Court are available on the website of the 
Department of Justice of the Government of lndia 148 and 
F therefore it is not necessary to
make a detailed mention of the 
procedure. Similar Memoranda have been referred to in the 
Second Judges case by Justice Pandian.149 
154. A reading of the Memoranda makes it explicit that 
G a proposal recommending the appointment of a judge of a 
High Court shall be initiated by the Chief Justice of the High 
Court. However, if the Chief Minister desires to recommend 
148 http"{ldoi gov jn/si!es/defau!Vfiles/memohc pdf <for High Court Judges) 
http:lldoi gov in/si!es/defau!Vfi!es/memosc pdf (for Supreme Court judges) 
H 
149 Paragraph 96 and 97
SUPREME COURT ADVOCATES-ON-RECORD 
721 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the name of any person he should forward the same to the A 
Chief Justice for his consideration. Although it is not clearly 
spelt out, it is implicit that the Chief Justice is not obliged to 
accept the suggestion of the Chief Minister. 
155. It is al&o significant and important to note that in the 8 
Memoranda, consultation by the judges in the collegium with 
'non-judges' for making an appointment to the Supreme Court 
is postulated and it is not prohiblied for making an appointment 
to the High Court. That is to say, a 'collegium judge' is not 
prohibited from taking the opinion of any person, either c 
connected with the legal profession or otherwise for taking an 
informed decision regarding the suitability or otherwise of a 
person for appointment as a judge of the High Court or the 
Supreme Court. That this is not unknown is clear from a 
categorical statement of Justice Verma in an interview that: 
D 
"For every Supreme Court appointment, I consulted 
senior lawyers like Fali S. Nariman and Shanthi Bhushan. 
I used to consult five or six top lawyers. I used to consult 
even lawyers belonging to the middle level. Similar 
consultation took place in the case of High Courts. I 
E 
recorded details of every consultation. I wish all my 
correspondence is made public." 
156. Therefore, during the evolution of the system of 
appointment of judges four cobwebs were cleared. They were: 
F 
(
1) The role of the President- he/she was expected to act on 
the advice of the Council of Ministers even in the appointment 
of judges; (2) The initial recommendation for the appointment 
of a judge of a High Court was to originate from the Chief Justice 
of the High Court and for the appofntment of a judge of the G 
Supreme Court from the Chief Justice of India; (3) Consultation 
between the President and the Chief Justice of India is an 
integrated participative process with the result that the 
President has the final say in the appointment of a judge under 
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A 
certain circumstances and the Chief Justice of India (in 
consultation with and on the unanimous view of the other judges 
consulted by him/her) has the final say under certain 
circumstances; and (4) The Union of India accepted these 
propositions without hesitation in the Third :1udges case. 
B 
Amendments to the Constitution 
157. Apart from judicial discourses on the appointment 
of judges, Parliament too hasllad its share of discussions. On 
as many as four occasions, it was proposed to amend the 
C 
Constitution in relation to the procedure for the appointment of 
judges of the Supreme Court and the High Courts. These 
proposed amendments are considered below. 
(a) The Constitution (Sixty-seventh Amendment) 
D Bill, 1990 
158. The Constitution (Sixty-seventh Amendment) Bill, 
1990 was introduced in the Lok Sabha on 181h May, 1990 and 
it proposed to set up a National Judicial Commission (for short 
the NJC), though not in line with the recommendations of the 
E 
LCI. The composition of the NJC was to vary with the subject 
matter of concern, namely, the appointment of a judge of the 
Supreme Court or the appointment of a judge of the High Court. 
159. For the appointment of a judge of the Supreme 
F Court, in terms of the proposed Article 307Aofthe Constitution, 
the NJC was to consist of the Chief Justice of India and two 
other judges of the Supreme Court next in seniority to the Chief 
Justice of India. For the
appointment of a judge of the High 
Court, the NJC was to consist of the Chief Justice of India, the 
G Chief Minister or Governor (as the case may be) of the 
concerned State, one other judge of the Supreme Court next 
in seniority to the Chief Justice of India, the Chief Justice of 
the High Court and the judge of the High Court next in seniority 
to the Chief Justice of the High Court. There was no provision 
H
SUPREME COURT ADVOCATES-ON-RECORD 
723 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
for the appointment ofthe Chief Justice of India or the Chief A 
Justice of the High Court. 
160. The procedare for the transaction of business of 
the NJC was to be determined by the President in consultation 
with the Chief Justice of India and was subject to any law made 8 
by Parliament. 
161. TheAmendmentACt also provided that in the event 
the recommendation of the NJC is not accepted, the reasons 
therefor shall be recorded in writing. 
c 
162. The Bill was criticized (in part) by the Arrears 
Committee which stated that: 
"The Committee is unable to find any logic or justification 
for different commissions .... Keeping in view the objects 
and reasons for the constitution of the commission, 
D 
namely, to obviate the criticism of executive arbitrariness 
in the matter of appointment and transfer of High Court 
judges and to prevent delay in making appointments, 
there is no justification for the executive through the Chief 
Minister to be on the commission. Instead of removing 
E 
the vice of executive interference which has vitiated the 
working of the present system the presence of the Chief 
Minister on the recommendatory body actual alleviates 
him from the status of a mere consultee to the position of 
an equal participant in the selection process of the 
F 
recommendatory body. By making the Chief Minister an 
equal party when he is not equipped to offer any view in 
regard to
the merit, ability, competency, integrity and 
suitability of the candidates for appointments, the scope G 
of executive interference is enhanced."150 
· 
163. The Bill was not taken up for consideration due to 
the dissolution of the Lok Sabha in May, 1991. 
150 Paragraph 7.8 
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A 
(b) The Constitution (Ninety~eighth Amendment) 
Bill, 2003 
164. On 22"d February, 2000 - barely 8 months after the 
issuance of the (Revised) Memorandum of Procedure 
8 
mentioned above - the Government of India issued a 
notification setting up a National Commission to Review 
the Working of the Constitution (for short the NCRWC), 
including the procedure for the appointment of judges of the 
superior judiciary. The terms of reference of the NCRWC were 
c as follows: 
D 
E 
"The Commission shall examine, in the light of the 
experience of the past 50 years, as to how best the 
Constitution can respond to the changing needs of 
efficient, smooth and effective system of governance and 
socio-economic development of modern India within the 
framework of parliamentary democracy and to 
recommend changes, if any, that are required in the 
provisions of the Constitution without interfering with its 
basic structure or features." 
165. On 26th September, 2001 an Advisory Panel of the 
NCRWC issued a Consultation Paper on Superior Judiciary.151 
This Paper dealt with the procedure for appointment of judges 
of the Supreme Court and the High Courts, the age of 
F retirement of judges, the transfer of judges of the High Courts 
and the procedure for dealing with 'deviant' behavior of a judge 
and for his/her removal. 
166. In the context of appointment of judges of the 
G superior judiciary, paragraph 8.20 of the Paper is significant
since it tacitly acknowledges that the procedure evolved over 
the years particularly as a result of the Second Judges case 
151 The Consultation Paper can be found on the website of the Law Ministry. 
This was accessed on 2°• May, 2015: http://lawmin.nic.in/ncrwc/finalreporU 
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SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
and the Third Judges case was quite satisfactory. Paragraph A 
8.20 reads as follows: 
"8.20 Purpose of 671h Amendment Bill served by the 
judgement in SCAORA: We have set out hereinabove 
the several methods of appointment (to Supreme Court B 
and High Courts) suggested by the various bodies, 
committees and organizations. We have also set out the 
method and procedure of appointment devised by the 
1993 decision of the Supreme Court in SCA ORA 152 and 
in the 1998 opinion rendered under Article 143. It would c 
be evident therefrom that the 1993 decision gives effect 
to the substance of the Constitution (Sixty-sev~nth 
Amendment) Bill, without of course calling it a 'National 
Judicial Commission', and without the necessity of 
amending the Constitution as suggested by the said 
D 
Amendment Bill. Indeed, it carries forward the object 
underlying the Amendment Bill by making the 
recommendations of the Chief Justice of India and his 
colleagues binding on the President. The 1998 opinion 
indeed enlarges the 'collegium'. In this sense, the E 
purpose of the said Amendment B.ill evidenced by the 
proviso to Article 124(2) and the Explanation appended 
thereto, is served, speaking broadly. The method of 
appointment evolved by these decisions has indeed 
been hailed by ~everal jurists and is held out as a 
F 
precedent worthy of emulation by U.K. and others. (See 
the opinion of Lord
Templeman, a member of the House 
of Lords, cited hereinabove.) The said decisions lay 
down the proposition that the "consultation" contemplated 
by Articles 124 and 217 should be a real and effective G 
consultation and that having regard to the concept of 
Judicial independence, which is a basic feature of the 
Constitution, the opinion rendered by the Chief Justice 
152 Second Judges case 
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of India (after consulting his colleagues) shall be binding 
upon the Executive. In this view of the matter, much of 
the expectations from a National Judicial Commission 
(N.J.C) have been met. The said Constitution 
Amendment Bill was, it would appear, prepared after a 
wide and elaborate consultation with all the political 
parties and other stakeholders. However, the aspect of 
disciplinary jurisdiction remains unanswered. We may 
however discuss the concept of an N.J.C. which may 
cover both appointments and matters of discipline." 
167. The Paper acknowledged that the Second Judges 
case and the Third Judges case 'speaking broadly' served 
the purpose of the Constitution (Sixty-seventh Amendment) Bill 
and that 'much of the expectations from a National Judicial 
D Commission (N.J.C) have been met.' The shortfalls in 
expectations were not specified in the Paper except that of 
the disciplinary jurisdiction which did not arise and was not 
dealt with in the Second Judges case or the Third Judges 
case. However, it is important to note that a dispassionate 
E jurist Lord Templeman, a member of the House of Lords held 
the view that the system of appointment of judges in India ought · 
to be followed in England as well. Apart from him, the system 
of appointment of judges laid down by these decisions 'has 
been hailed by several jurists and is held out as a precedent 
F worthyofemulation'. 
168. Be that as it may, the
NCRWC submitted its Report 
to the Prime Minister on 31"1 March, 2002. In Chapter? of the 
Report relating to the judiciary, the NCRWC recommended in 
G paragraph 7 .3.7 thereof the establishment of a National Judicial 
Commission (for short the NJC)". It was observed that such a 
commission was necessary for 'the effective participation of 
both the executive and the judicial wings of the State as an 
integrated scheme for the machinery for appointment of judges' 
H
SUPREME COURT ADVOCATES-ON-RECORD 
727 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
in line with the integrated participatory consultative process A 
suggested by this Court in the Second Judges case·and the 
Third Judges case. This is what the NCRWC had to say: 
"The matter relating to manner of appointment of judges 
had been debated over a decade. The Constitution 
B 
(Sixty-seventh Amendment) Bill, 1990 was introduced on 
181h May, 1990 (91h Lok Sabha) providing for the 
institutional frame work of National Judicial Commission 
for recommending the appointment of judges to the 
Supreme Court and the various High Courts. Further, it c 
appears that latterly there is a movement throughout the 
world to move this function away from the exclusive fiat 
of the executive and involving some institutional frame 
work whereunder consultation with the judiciary at some 
level is provided for before making such D 
appointments. The system of consultation in some form 
is already available in Japan, Israel and the UK. The 
Constitution (Sixty-seventh Amendment) Bill, 1990 
provided for a collegium of the Chief Justice of India and 
two other judges of the Supreme Court for making 
E 
appointment to the Supreme Court. However, it would 
be worthwhile to have a participatory mode with the 
participation of both the executive and the judiciary in 
making such recommendations. The Commission 
proposes the composition of the Collegium which gives F 
due importance to and provides for the
effective 
participation of both the· executive and the judicial wings 
of the State as an integrated scheme for the machinery 
for appointment of judges. This Commission, accordingly, 
recommends the establishment of a National Judicial G 
Commission under the Constitution. 
The National Judicial Commission for appointment of 
judges of the Supreme Court shall comprise of: 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
(1) The Chief Justice of India: 
Chairman 
(2) Two senior most judges of the 
Member 
Supreme Court: 
(3) The Union Minister for Law 
Member 
B 
and Justice: 
c 
(4) One eminent person nominated 
Member 
by the President after consulting 
the Chief Justice of India: 
The recommendation for the establishment of a National 
Judicial Commission and its composition are to be 
treated as integral in view of the need to preserve the 
independence of the judiciary."153 
169. Pursuant to the recommendations of the NCRWC, 
D the Constitution (Ninety-eighth Amendment) Bill, 2003 
was introduced in Parliament on or about 81h May, 2003. The 
Statement of Objects and Reasons of the Bill states, inter alia, 
that the Government of India has been committed to the setting 
up of an NJC for appointment of judges of the Supreme Court, 
E Chief Justices and Judges of the High Courts as well as their 
transfer so as to provide for the effective participation of both 
the executive and the judicial wings of the Government. It is 
mentioned that the NCRWC also considered this matter and 
F 
recommended the establishment of an NJC. 
170. The Statement of Objects and Reasons refers to 
the composition of the NJC and while the NCRWC had 
recommended the nomination 'in the NJC of one eminent 
person by the President of India after consulting the Chief 
G Justice of India, the Constitution (Ninety-Eighth Amendment) 
Bill modified this recommendation and
proposed that one 
eminent citizen be nominated by the President of India in 
consultation with the Prime Minister of India for a period of 
H 
153 Paragraph 7.3.7
SUPREME COURT ADVOCATES-ON-RECORD 
729 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
three years. 
A 
171. The Constitution (Ninety-eighth Amendment) Bill 
proposed the insertion of Chapter IVA in the Constitution 
consisting of one Article namely Article 147A. This Article 
related to the establishment of the NJC in terms of the 
B 
Statement of Objects and Reasons. 
172. The Bill was not passed in any House of Parliament 
due. to the dissolution of the Lok Sabha in March 2004 and the 
general elections being called. 
c 
(c) The Constitution (One Hundred and Twentieth 
Amendment) Bill, 2013 
173. A third attempt was made to amend the Constitution 
for the purposes of appointment of judges of the superior 
judiciary. This was by the introduction of the Constitution (One D 
Hundred and Twentieth Amendment) Bill, 2013 introduced in 
the Rajya Sabha on 24th August 2013. 
17 4. The Statement of Objects and Reasons to the Bill 
referred to the Second Judges case and the Third Judges E 
case as well as the Memorandum of Procedure. It was 
mentioned that the Memorandum confers upon the judiciary 
itself the power of appointment of judges of the superior 
judiciary. 154 It was further stated that after a review of the 
pronouncements of this Court and relevant constitutional 
F 
provisions, a broad based judicial appointment commission 
could be established· for making recommendations for the 
selection of-judges. This commission would provide a 
meaningful role to the executive and
the judiciary to present 
their viewpoint and make the participants accountable while G 
introducing transparency in the selection process. The 
Statement of Objects and Reasons also mentioned that the 
proposed Bill would enable equal participation of the judiciary 
154 This is factually incorrect. The Memorandum was drawn up by the Law 
Minister and did not confer any power upon the judiciary. 
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730 
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A 
and the executive in the appointment of judges to the superior 
judiciary and also make the system more accountable and 
thereby increase the confidence of the public in the judiciary. 
175. The Constitution (One Hundred and Twentieth 
B Amendment) Bill proposed the insertion of Article 124A in the 
Constitution establishing a commission known as the National 
Judicial Appointments Commission (for short the NJAC). The 
composition of the NJAC, the appointment of its Chairperson 
and Members, their qualifications, conditions of services, 
c tenure, functions and the procedure as well as the manner of 
selection of persons for appointment as Chi.ef Justice of India, 
judges of the Supreme Court, Chief Justices and other judges 
of the High Courts was to be provided by law made by 
Parliament. 
D 
E 
176. The Constitution (One Hundred and Twentieth 
Amendment) Bill was passed by the Rajya Sabha on 51h 
September 2013 but the Lok Sabha was dissolved in May 
2014 before the Bill could be sent to it and the general elections 
called. 
177. Strangely, the Statement of Objects and Reasons 
completely overlooked the fact that there already was 'equal 
participation of the judiciary and the executive in the 
appointment of judges to the superior judiciary.' In the Second 
F Judges case it was clearly, explicitly and unequivocally stated 
that: 
G 
H 
"The process of appointment of Judges to. the Supreme 
Court and the High Courts is an
integrated 'participatory 
consultative process' for selecting the best and most 
suitable persons available for appointment; and all the 
constitutional functionaries must perform this duty 
collectively with a view primarily to reach an agreed 
decision, subserving the constitutional purpose, so that
SUPREME COURT ADVOCATES-ON-RECORD 
731 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the occasion of primacy does not arise."155 
A 
However, in the event of a difference of opinion, one of 
the constitutional authorities must have the final say and given 
the constitutional convention over the decades the final say 
ought to be with the Chief Justice of India, the head of the 
B 
judiciary in India under certain circumstances and with the 
President under certain circumstances. Otherwise, a stalemate 
or deadlock situation could arise which the Constituent 
Assembly obviously did not anticipate from two constitutional 
functionaries. The Second Judges case and the Third Judges c 
case gave this shared responsibility to the President and the 
Chief Justice of lndia.156 For the appointment of a judge of the 
Supreme Court, the collegium of 5 (five) judges must make a 
unanimous recommendation. The President is entitled to turn 
down a 4-1 or 3-2 recommendation. If the unanimous D 
recommendation does not find favour with the President for 
strong and cogent reasons and is returned to the collegium for 
reconsideration, and it is unanimously reiterated, then the 
President is obliged to accept the recommendation. However, 
if the reiteration is not unanimous, then the President is entitled 
E 
to turn down the recommendation. The theory which the 
Constitution (One Hundred and Twentieth Amendment) Bill, 
2013 [and subsequently the Constitution (One Hundred and 
Twenty-first
Amendment) Bill, 2014] sought to demolish that 
'judges appoint judges' is non-existent. 
F 
(d) The Constitution (One Hundred and Twenty-first 
Amendment) Bill, 2014 
178. The fourth and final attempt (presently successful 
and under challenge in these petitions) to amend the G 
Constituti.on was by the introduction on 11 1h August, 2014 of 
"' Paragraph 486(1) 
156 I am somewhat uncomfortable with the word 'primacy' while dealing with 
the President and the Chief Justice of India. In the context of the appointment 
of judges, the word 'responsibility' used by the LCI in its 14th Report seems 
more appropriate. 
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732 
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[2015] 13 S.C.R. 
A the Constitution (One Hundred and Twenty-first Amendment) 
Bill, 2014. This Bill was passed by the Lok Sabha on 13th 
August, 2014 and by the Rajya Sabha on 14th August, 2014. It 
received the ratification of more than one half of the States as 
required by Article 368(2) of the Constitution and received the 
B assent of the President on 31st December, 2014 when it 
became the Constitution (Ninety-ninth Amendment) Act 2014. 
179. It may be mentioned en passant that the learned 
Solicitor General was requested to place on record the 
c procedure adopted by the State Legislatures for ratification of 
the Constitution (One Hundred and Twenty-first Amendment) 
Bill, 2014 but that information was not forthcoming, for reasons 
that are not known. The intention was not to question the factum 
of ratification but only to understand the process and to add 
o transparency to the process, since there have been instances 
in the United States where the courts have examined the issue 
of the ratification of an amendment to the Constitution. 157 
Transparency is not a one-way street. 
180. Section 1 (2) of the Constitution (Ninety-ninth 
E Amendment) Act 2014 provides that it shall come into force 
on such date as the Central Government may by notification in 
the official gazette, appoint. The appointed date is 13th April, 
2015. 
F 
181. Simultaneous with the passage of the Constitution 
(One Hundred and Twenty-FirstAmendment) Bill,
Parliament 
also considered the National Judicial Appointment 
Commission Bill, 2014. The Bill was introduced in Parliament 
on 11th August, 2014. It was passed by the Lok Sabha on 13th 
G August, 2014 and by the Rajya Sabha on 14th August, 2014. 
157 See for example: Hammond v. Clark, 136 Ga. 313 (1911 ), Fahey v. 
Hackmann, 291 Mo. 351 (1922), Associated Industries of Oklahoma v. 
Oklahoma Tax Commission, 176 Okla. 120 (1936), State of Wisconsin v. 
Adam S. Gonzales, 253 Wis.2d 134 (2002), The State v. Swift, 69 Ind. 505 
H 
(1880) etc.
SUPREME COURT ADVOCATES-ON-RECORD 
733 
ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
The National Judicial Appointments Commission Act also A 
received the assent of the President on 31 •1 December, 2014 
and it was brought into force by a gazette notification issued 
on 131hApril, 2015. 
182. Both the Constitution (Ninety-ninthAmendment)Act, _ 8 
2014 and the National Judicial Appointments Commission Act, 
2014 are challenged in this and a batch of connected writ 
petitions. 
Conclusions on the factual background 
183. The conclusions that can be drawn from the C 
background historical facts are as follows: 
( 1) The independence of the judiciary has been always 
recognized and acknowledged by all concerned. 
(2) Prior to Independence, the appointment of a judge to D 
a superior court was entirely the discretion of the Crown. The 
Constituent Assembly felt that such a 'supreme and absolute' 
power s~ould not vest in the President or the government of 
the day or the Chief Justice of India (as an individual) and 
E 
therefore a fetter was placed on that power by requiring the 
President to mandatorily consult the Chief Justice of India (with 
the discretion to consult other judges) for the appointment of a 
judge to the Supreme Court. For the appointment of a judge of 
the High Court also, consultation with the Chief Justice of India 
F 
was mandatory. In addition, consultation with the Chief Justice 
of the High Court and the Governor of the State was mandatory.
Significantly, there is no mention of consultation with anybody 
from civil society. 
(3) Any doubt about the individual role of the President in 
G 
the process of appointment of judges came to rest and it was 
clear that the President was expected to act only on the advice 
of the Council of Ministers. 
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734 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A 
(4) Similarly, the Chief Justice of India is not expected to 
act in an individual or personal capacity but must consult his/ 
her senior judges before making a recommendation for the 
appointment of a judge. 
B 
(5) Dr. Ambedkar and the Constituent Assembly did not 
accept the 'unfettered discretion' theory in the CAD but this 
view was subsequently rejected in the First Judges case 
which brought in the 'ultimate power' theory propounded by 
Justice Bhagwati and Justice Desai. 
C 
(6) Executive interference in the appointment process 
(with perhaps an informal method of 'take over') had started 
around the time of Independence and got aggravated post 
Independence, peaking towards the end of the 1980s. 
D 
(7) Not a single instance was given to us where the 
President recommended a person for appointment as a judge 
of the Supreme Court or the High Court. The Chief Minister of 
a State might have made a recommendation (although no 
instance was given to us) but that was required to be routed 
E through the Chief Justice of the High Court, as per the 
Memorandum of Procedure. 
(8) Only one instance was given to us, pre the First 
Judges case where an appointment as a judge of the High 
Court was made without the concurrence of the Chief Justice 
F of India. Post the First Judges case as many as seven such 
appointments were made. This is a clear indication that the 
'ultimate power' theory propounded in the First Judges case
translated into 'absolute executive primacy'. The dream of Dr. 
G Ambedkar became a nightmare, thanks to the political 
executive. 
H 
(9) The 'ultimate power' theory or the 'absolute executive 
primacy' theory is now diluted and the last word in the 
appointment of a judge of the Supreme Court is shared
SUPREME COURT ADVOCATES-ON-RECORD 
735 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
between the President and the Chief Justice of India in terms A 
of the Second Judges case and the Third Judges case. 
Historically, giving the last word to the executive has been 
criticized by no less than the Attorney-General Shri M.C. 
Setalvad who chaired the Law Commission of India when the 
14th Report was given. That system has not worked well at all 
B 
as noted from time to time. 
(10) The National Commission to Review the Working 
of the Constitution as well as a responsible judge from the 
House of Lords were of the opinion that the procedure for c 
appointment of judges as laid down in the Second Judges 
case and the Third Judges case broadly serves the purpose 
of maintaining the independence of the judiciary and providing 
a suitable me.thod for appointment of judges of the superior 
Courts. 
D 
184. This is not to say that the 'collegium system' is 
perfect. Hardly so. During the course of hearing, some critical 
comments were made with regard to the appointment of some 
judges to this Court which, it was submitted by the learned 
Attorney-General would not have been possible were it not for E 
the failure of the collegium system. Even the petitioners were 
critical of the collegium system. However, I must express my 
anguish at the manner in which an 'attack' was launched by 
some learned counsel appearing for the respondents. It was 
F 
vitriolic at times, lacking discretion
and wholly unnecessary. 
Denigrating judges is the easiest thing to do - they cannot 
fight back - and the surest way to ensure that the judiciary 
loses its independence and the people lose confidence in the 
judiciary, which is hardly advisable. The Bar has an equal (if G 
not greater) stake in the independence of the judiciary and the 
silence of the Bar at relevant moments is inexplicable. The 
solution, in the larger canvas, is a democratic audit, an audit 
limited to the judiciary and the Rule of Law. If some positive . 
H
736 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A developments can be incorporated in the justice delivery 
system (in the larger context) they should be so incorporated. 
185. 
In this context, it is interesting to recall the words 
of Dr. Ambedkar on the working of the Constitution: 
B 
' ... however good a Constitution may be, it is sure to turn 
out bad because those who ,are called to work it, happen 
to be a bad lot. However bad a Constitution may be, it 
may turn out to be good if those who are called to work it, 
happen to be a good lot. The working of a Constitution 
C 
does not depend wholly .upon the nature of the 
Constitution."158 
186. Both the 'absolute executive primacy' system or the 
'ultimate power' theory and the 'collegium system' of 
0 
appointment of judges of the Supreme Court and the High 
Courts were acceptable systems in their time. The 'executive 
primacy' system was, unfortunately, abused by the executive 
and the judiciary could do precious little about it, bound as the 
judges are by the Rule of Law. It is because of this abuse that 
E the constitutional provisions were revisited at the instance of 
the Bar of this Court and the revisit gave the correct 
interpretational insight into our constitutional history and the 
constitutional provisions. It is this insight that resulted in the 
Second Judges case and a meaningful and pragmatic 
F 
interpretation of the Constitution. 
187. That the Second Judges case was correctly 
decided by the majority
was accepted in the Third Judges 
case by the Attorney-General and, what is more important, by 
G the President (aided and advised by the Council of Ministers) 
who did not seek a reversal of the dicta laid down in the Second 
Judges case. 
188. To say, as was conveyed to us during the hearing of 
158 http://parliamentofindia.nic in/lsldebateslvol11 p11 him 
H
SUPREME COURT ADVOCATES-ON-RECORD 
737 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the case, that the collegium system has failed and that it needs A 
replacement would not be a correct or a fair post mortem. It is 
true that there has been criticism (sometimes scathing) of the 
decisions bf the collegium, but it must not be forgotten that the 
executive had an equally important participative role in the 
integrated process of the appointment of judges. That the 
B 
executive adopted a defeatist or an I-don't-care attitude is most 
unfortunate. The collegium cannot be blamed for all the ills in 
the appointment of judges - the political executive has to share 
the blame equally if not more, since it mortgaged its 
constitutional responsibility of maintaining a check on what may C 
be described as the erroneous decisions of the collegium. 
189. To say that the executive had no role to play (as 
was suggested to us) is incorrect to say the least, as is clear 
from a close reading of the Second Judges case and the D 
Third Judges case. Even the President did not think so. In 
fact, the President was clearly of the opinion that the executive 
or at least the Head of State had a role to play in the appointment 
of judges. This evident from an article titled "Merit" in the 
Appointment of Judges'159 which quotes from an issue of India 
E 
Today magazine of 251h January, 1999 the following noting 
made by the President concerning the appointment of judges 
of the Supreme Court:
"I would like to record my views that while recommending 
F 
the appointment of Supreme Court judges, it would be 
consonant with constitutional principles and the nation's 
social objectives if persons b!31onging to weaker sections 
of society like SCs and STs, who comprise 25 per cent 
of the population, and women are given due G 
consideration. Eligible persons from these categories 
are available and their under-representation or non-
representation would not be justifiable. Keeping 
159 By Professor M.P. Singh, (1999) 8 SCC (Jour) 1 
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738 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
vacancies unfilled is also not desirable given the need 
for representation of different sections of society and the 
volume of work the Supreme Court is required to handle." 
The Chief Justice of India is reported to have responded 
8 
as follows: 
c 
D 
"I would like to assert that merit alone has been the 
criterion for selection of Judges and no discrimination 
has been done while making appointments. All eligible 
candidates, including those belonging to the Scheduled 
Castes and Tribes, are considered by us while 
recommending names for appointment as Supreme 
Court Judges. Our Constitution envisages that merit 
alone is the criterion for all appointments to the Supreme · 
Court and High Courts. And we are scrupulously adhering 
to these provisions. An unfilled vacancy may not cause 
as much harm as a wrongly filled vacancy." 
190. All that was needed to keep the collegium system 
on the rails was the unstinted cooperation ofthe executive and 
E an effective implementation strategy, with serious and 
meaningful introspection and perhaps some fine tuning and 
tweaking to make it more effective. Unfortunately, the executive 
did not respond positively, perhaps due to its misunderstanding 
of the decisions of this Court. 
F 
G 
H 
191. On the other hand, an independent and impartial 
jurist, Lord Templeman praised the integrated consultative 
collegium system and recommended it as a method that the 
British could follow with
advantage. The learned judge wrote: 
"However, having regard to the earlier experience in India 
of attempts by the executive to influence the personalities 
and attitudes of members of the judiciary, and having 
regard to the successful attempts made in Pakistan to 
control the judiciary, and having regard to the unfortunate
SUPREME COURT ADVOCATES-ON-RECORD 
739 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
results of the appointment of Supreme Court judges of A 
the United States by the Pre~ident subject to approval 
by Congress, the majority decision of the Supreme Court 
of India in the Advocates on Record case marks a 
welcome assertion of the independence of the judiciary 
and is the best method of obtaining appointments of B 
integrity and quality, a precedent method which the British 
could follow with advantage."160 
While others shower praise on our system of appointment 
of judges, we can only heap scorn! 
c 
Preliminary issue - reconsideration of the Second 
Judges case and the Third Judges case 
192. With this rather detailed history, the preliminary 
objections raised by the learned Attorney-General need 
D 
consideration. The learned Attorney-General raised three 
preliminary issues: (1) The writ petitions are premature and 
not maintainable since the 99th Constitution Amendment Act 
and the NJAC Act have not come into force; (2) The writ 
petitions are premature and not maintainable since the National 
E 
Judicial Appointments Commission has not been constituted 
and so there is no adverse impact of the 99th Constitution 
Amendment Act and the NJAC and no facts have been pleaded 
by the petitioners in this regard; (3) This batch of cases ought 
to be heard by a Bench of 9 (nine) or more judges since the 
F 
decision of this Court in the Second Judges case161 and the 
Third Judges
case162 do not lay down the correct law but 
require reconsideration. It was submitted that the decisions 
have the effect of usurping the powers of the President under 
Article 124(2) and Article 217(1) of the Constitution and that G 
the judiciary has effectively converted the appointment of judges 
160 Supreme But Not Infallible, Essays in Honour of the Supreme Court of 
India page 48, 53 
161 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 
4 SCC 441 (Nine Judges Bench) 
162 Special Reference No. 1 of 1998, (1998) 7 sec 739 (Nine Judges Bench) 
H
740 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A to the Supreme Court and the High Courts from 'consultation' 
between the President and the Chief Justice of India (as 
occurring in Article 124(2) of the Constitution) into 'concurrence' 
of the Chief Justice of India and giving birth to a 'right to insist' 
on the acceptance of a recommendation of the Chief Justice 
B of India. Moreover, the doctrine of separation of powers 
between the Legislature, the Executive and the Judiciary has 
been thrown overboard as also the system of checks and 
balances inherent in the Constitution. To decide this particular 
preliminary issue, the learned Attorney-General referred to the 
C 
separation of powers in our Constitution, the law and the 
principles on which this Court should proceed to decide 
whether an earlier or prior decision rendered requires to be 
reconsidered. 
o 
193. As far as the first preliminary objection is concerned, 
it was raised before the 99lh Constitution Amendment Act and 
the NJAC Act came into force. Now the preliminary objection 
does not survive since the ggih Constitution Amendment Act 
and the NJAC Act have in fact been brought into force. The 
E second preliminary objection has no substance since the 
question in these petitions relates to the basic structure of the 
Constitution and the independence of the judiciary. It would be 
facetious to say that the writ petitions should have been filed 
after an adverse impact is felt by the alteration of the basic
F 
structure of the Constitution and after the independence of the 
judiciary is bartered away. If the petitioners were expected to 
wait that long it would perhaps be too late. That apart, since 
we have heard these petitions at length, it is advisable to 
pronounce on the substantive issues raised. Really speaking, 
G it is only the third preliminary objection that needs 
consideration. 
H 
The third preliminary objection and the separation 
of powers
SUPREME COURT ADVOCATES-ON-RECORD 
741 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
194. The issue of the separation of powers has been the A 
subject matter of discussion in several cases. Broadly, the 
consistent vie"'! of this Court has been that while the Constitution 
recognizes the separation of powers, it .is not a rigid separation 
and there is some overlap. 
B 
195. In Ram Jawaya Kapur v. State of Punjab163 it 
was held by Chief Justice Mukherjea speaking for this Court: 
"It may not be possible to frame an exhaustive definition 
of what executive function means and implies. Ordinarily 
the executive power connotes the residue of C 
governmental functions that remain after legislative and 
judicial functions are taken away. The Indian Constitution 
has not indeed recognised the doctrine of separation of 
powers in its absolute rigidity but the functions of the 
different parts or branches of the Government have been 
D 
sufficiently differentiated and consequently it can very well 
be said that our Constitution does not contemplate 
assumption, by one organ or part of the State, of functions 
that essentially belong to another. The executive indeed 
can exercise the powers of departmental or subordinate 
E 
legislation when such powers are delegated to it by the 
legislature. It can also, when so empowered exercise 
judicial functions in a limited way. The executive 
_ Government, however, can never go against the F 
provisions of the Constitution or of any law."164
196, The separation of powers in our Constitution is not 
as rigid as in the United States. One of the elements of the 
separation of powers is the system of checks and balances. 
This too is recognized by our Constitution and Article 226 and G 
Article 32 Oudicial review) is one of the features of checks and 
balances. It was so held in Kesavananda Bharati v. State of 
163 [1955] 2 SCR 225 (Five Judges Bench) 
164 Paragraph 12 
H
742 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A Kera/a165 where it was said by Justice Shelat and Justice 
B 
c 
D 
Grover as follows: 
"There is ample evidence in the ConstitlJtion itself to 
indicate that it creates a system of checks and balances 
by reason of which powers are so distributed that none 
of the three organs it sets up can become so pre-
dominant as to disable the others from exercising and 
discharging powers and functions entrusted to them. 
Though the Constitution does not lay down the principle 
of separation of powers in all its rigidity as is the case in 
the United States Constitution yet it envisages such a 
separation to a degree as was found in Ranasinghe 
case. 166 The judicial review provided expressly in our 
Constitution by means of Articles 226 and 32 is one of 
the features upon which hinges the system of checks and 
balances."167 
197. In Indira Nehru Gandhi v. Raj Narain 168 the 
constitutional validity of the Constitution (Thirty-ninth 
Amendment) Act, 1975 was challenged. By this Amendment 
E Act, Article 39-A was inserted in the Constitution and the 
challenge was, inter alia, to clause (4) thereof.169 While striking 
F 
165 (1973) 4 SCC 225 (Thirteen Judges Bench) 
166 1965AC 172 
167 Paragraph 577 
166 1975 Supp SCC 1 (Five Judges Bench) 
169 (4) No law made by Parliament before the commencement of the 
Constitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates to election 
petitions and matters connected therewith shall
apply or shall be deemed 
ever to have applied to or in relation to the election of any such person as is 
referred to in clause ( 1) to either House of Parliament and such election shall 
G 
not be deemed to be void or ever to have become void on any ground on 
which such election could be declared to be void, or has, before such 
commencement, been declared to be void under any such law and 
notwithstanding any order made by any court, before such commencement, 
declaring such election to be void, such election shall continue to be valid in 
all respects and any such order and any finding on which such order is 
based shall be and shall be deemed always to have been void and of no 
H 
effect.
SUPREME COURT ADVOCATES-ON-RECORD 
743 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
down the offending clause, it was held by Justice H.R. Khanna: 
A 
"A declaration that an order made by a court of law is 
void is normally part of the judicial function and is not a 
legislative function. Although there is in the Constitution 
of India no rigid separation of powers, by and large the 
6 
spheres of judicial function and legislative function have 
been demarcated and it is not permissible for the 
legislature to encroach upon the judicial sphere. It has 
accordingly been held that a legislature while it is entitled 
to change with retrospective effect the law which formed c 
the basis of the judicial decision, it is not permissible to 
the legislature to declare the judgment of the court to be 
void or not binding (see Shri Prithvi Cotton Mills Ltd. v. 
Broach Borough Municipality, Janapada Sabha, 
Chhindwara v. Central Provinces Syndicate Ltd., D 
Municipal Corporation of the City of Ahmedabad v. New 
Shorock Spg. & Wvg. Co. Ltd. and State of Tamil Nadu 
v. M. Rayappa Gounder)."170 (Internal citations omitted). 
198. Justice Mathew held that ours is a cooperative 
federalism that does not contain any rigid separation of powers E 
and there exists a system of checks and balances. Harold Laski 
was quoted as saying that 'Separation of powers does not 
mean the equal balance of powers. '171 In that context it was 
held that the exercise of judicial power by the Legislature is 
F
impermissible. The learned judge expressed the view that: 
"Montesquieu was the first to conceive of the three 
functions of Government as exercised by three organs, 
each juxtaposed against others. He realised that the 
efficient operation of Government involved a certain G 
degree of overlapping and that the theory of checks and 
balances required each organ to impede too great an 
aggrandizement of authority by the other two powers. As 
110 Paragraph 190 
111 A Grammar of Politics (Works of Harold J. Laski), 297 
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Holdsworth says, Montesquieu convinced the world that 
he had discovered a new constitutional principle which 
was universally valid. The doctrine of separation of 
governmental powers is not a mere theoretical, 
philosophical concept. It is a practical, work-a-day 
principle. The division of Governmentinto three branches 
does not imply, as its critics would have us think, three 
watertight compartments. Thus, legislative impeachment 
of executive officers or judges, executive veto over 
legislation, judicial review of administrative or legislative 
actions are treated as partial exceptions which need 
explanation."172 
199. Justice Y.V. Chandrachud made a distinction 
between the separation of powers as understood in the United 
o States and Australia and as understood in India and expressed 
the following view in this regard: 
E 
F 
G 
"The American Constitution provides for a rigid 
separation of governmental powers into three basic 
divisions, the executive, legislative and judicial. It is an 
essential principle of that Constitution that powers 
entrusted to one department should not be exercised by 
any other department. The Australian Constitution follows 
the same pattern of distribution of powers. Unlike these 
Constitutions, the Indian Constitution does not expressly 
vest the three kinds of power in three different organs of 
the State. But the principle of separation of powers is 
not a magic formula for
keeping the three organs of the 
State within the strict confines of their functions. As 
observed by Cardozo, J. in his dissenting opinion in 
Panama Refining Company v. Ryan173 the principle of 
separation of powers "is not a doctrinaire concept to be 
. made use of with pedantic rigour. There must be sensible 
172 Paragraph 318 
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173 293 U.S. 388 (1935)
SUPREME COURT ADVOCATES-ON-RECORD 
745 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
approximation, there must be elasticity of adjustment in 
A 
response to the practical necessities of Government 
which cannot foresee today the developments of 
tomorrow in their nearly infinite variety". Thus, even in 
America, despite the theory that the legislature cannot 
delegate its power to the executive, a host of rules and 
B 
regulations are passed by non-legislative bodies, which 
have been judicially recognized as valid."174 
200. In Minerva Mills Ltd. v. Union of lndia 175 Justice 
Bhagwati opined that the Constitution has devised a structure c 
for the separation of powers and checks and balances and 
held: 
"It is clear from the majority decision in Kesavananda 
Bharati case that our Constitution is a controlled 
Constitution which confers powers on the various D 
authorities created and recognised by it and defines the 
limits of those powers. The Constitution is suprema lex, 
the paramount law of the land and there is no authority, 
no department or branch of the State which is above or 
beyond the Constitution or has powers unfettered and 
E 
unrestricted by the Constitution. The Constitution has 
devised a structure of power relationship with checks and 
balances and limits are placed on the powers of every 
authority or instrumentality under the Constitution. Every 
F 
organ of the State, be it the executive or the legislature 
or the judiciary, derives its authority from
the Constitution 
and it has to act within the limits of such authority."176 
201. A little later, it was observed by the learned judge: 
"It is a fundamental principle of our constitutional scheme, 
G 
and I have pointed this out in the preceding paragraph, 
' 74 Paragraph 87 
175 (1980) 3 SCC 625 (Five Judges Bench) 
176 Paragraph 86 
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that every organ of the State, every authority under the 
Constitution, derives its power from the Constitution and 
has to act within the limits of such power. But then the 
question arises as to which authority must decide what 
are the limits on the power conferred upon each organ 
or instrumentality of the State and whether such limits 
are transgressed or exceeded. Now there are three main 
departments of the State amongst which the powers of 
government are divided; the executive, the legislature and 
the judiciary. Under our Constitution we have no rigid 
. separation of powers as in the United States of America, 
but there is a broad demarcation, though, having regard 
to the complex nature of governmental functions, certain 
degree of overlapping is inevitable. The reason for this 
broad separation of powers is that "the concentration of 
powers in any one organ may" to quote the words of 
Chandrachud, J;, (as he then was) in Indira Gandhi case 
'by upsetting that fine balance between the three organs, 
destroy the fundamental premises of a democratic 
government to which we are pledged'."177 
202. In l.R. Coelho v. State of Tamil Nadu 176 it was 
held by Chief Justice Sabharwal speaking for the Court that 
the doctrine of separation bf powers is a part of the basic 
structure of the Constitution. It was held: 
"The separation of powers between Legislature, 
Executive and the Judiciary constitutes
basic structure, 
has been found in Kesavananda Bharati case by the 
majority. Later, it was reiterated in Indira Gandhi case. A 
large number of judgments have reiterated that the 
separation of powers is one of the basic features of the 
Constitution."179 
177 Paragraph 87 
178 (2007) 2 SCC 1 (Nine Judges Bench) 
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179 Paragraph 63. This has been reiterated in paragraphs 67, 125 and 129.
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
203. In Bhim Singh v. Union of lndia180 it was held that .. A 
separation of powers is an essential feature of the Constitution 
and in modern governance strict separation is neither possible 
nor desirable. There is no violation of the principle of separation 
of powers if there is an overlap of the function of one branch of 
governance with another, but if one branch takes over an 
B 
essential function of another branch, then there is a violation 
of the principle. It was observed by Justice Sathasivam 
speaking for the Court, while considering the constitutional 
validity of the Members of Parliament Local Area Development 
Scheme: 
C 
"The concept of separation of powers, even though not 
found in any particular constitutional provision, is inherent 
in the polity the Constitution has adopted. The aim of 
separation of powers is to achieve the maximum extent D 
of accountability of each branch of the Government. 
While understanding this concept [of separation of 
powers], two aspects must be borne in mind. One, that 
separation of powers is an essential feature of the 
Constitution. Two, that in modern governance, a strict E 
separation is neither possible, nor desirable. 
Nevertheless, till this principle of accountability is 
preserved, there is no violation of separation of powers. 
We arrive at the same conclusion when we assess the 
F 
position within the constitutional text. The
Constitution 
does not prohibit overlap of functions, but in fact provides 
for some overlap as a parliamentary democracy. But what 
it prohibits is such exercise offunction of the other branch 
which results in wresting away of the regime of G 
constitutional accountability. 
Thus, the test for the violation of separation of powers 
must be precisely this. A law would be violative of 
180 (2010) 5 SCC 538 (Five Judges Bench) 
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A 
separation of powers not if it results in some overlap of 
functions of different branches of the State, but if it takes 
over an essential function of the other branch leading to 
lapse in constitutional accountability."181 
8 
204. Finally, in State of Tamil Nadu v. State of Kerala182 
there is an elaborate discussion on the separation of powers 
with reference to several cases decided by this Court. 183 It was 
held therein that in view of the doctrine of the, separation of 
powers (and for other reasons as well) the Kerala Irrigation 
c and Water Conservation (Amendment) Act, 2006 passed by 
the Kera la Legislature is unconstitutional since it seeks to nullify 
the decision of this Court in Mul/aperiyar Environmental 
Protection Forum v. Union oflndia. 184 
205. The submission of the learned Attorney-General was 
D that the appointment of a judge of the Supreme Court or a 
High Court is an executive function and this has been so held 
even in the Second Judges case. Justice Ahmadi held that 
the appointment of judges is an executive function 185 as did 
Justice Verma. 186 By an unsustainable interpretation of the 
E 
Constitution (an interpretation which, according to the learned 
Attorney-General must have made Dr. Ambedkar turn in his 
grave), this executive function has been taken over or usurped 
by the judiciary and that is the reason why the Second Judges 
F case requires to be reconsidered and the correct
constitutional 
position deserves to be restored. In other words, by a process 
of judicial encroachment, the separation of power theory has 
been broken down by this Court, in violation of the basic 
structure of the Constitution. 
G 
181 Paragraphs 77 and 78 
162 (2014) 12 SCC 696 (Five Judges Bench) 
163 Paragraphs 98 to 126.7. The conclusions are stated in paragraphs 126.1 
to 126.7. 
184 (2006) 3 SCC 643 (Five Judges Bench) 
185 Paragraph 298 and 304 
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186 Paragraph 443
SUPREME COURT ADVOCATES-ON-RECORD 
749 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Constituent Assembly Debates and the third A 
preliminary issue 
206. In further support of his contention that the Second 
Judges case and the Third Judges case do not lay down the 
correct law and need reconsideration, the learned Attorney-
8 
General placed great reliance on the CAD. It is necessary, 
therefore, to consider the law on the subject and then the 
debates. 
207. In Administrator-General of Bengal v. Prem Lal 
Mullick187 the Privy Council did not approve of a reference to C 
debates in the Legislature as a legitimate aid to the 
construction of a statute. It was held: 
"Their Lordships observe that the two learned Judges 
who constituted the majority in the Appellate Court, 
D 
although they do not base their judgment upon them, refer 
to the proceedings of the Legislature which resulted in 
the passing of the Act of 187 4 [Administrator-General's 
Act] as legitimate aids to the construction of Section 31. 
Their Lordships think it right to express their dissent from 
E 
that proposition. The same reasons which exclude these 
considerations when the clauses of an Act of the British 
Legislature are under construction are equally cogent in 
the case of an Indian statute." 
208. This view was partially accepted, with reference to 
F 
the CAD in A.K. Gopalan v. State of Madras188 by Chief 
Justice Harilal Kania who held that reference may be made to 
the CAD with great caution and
only when 'latent ambiguities 
are to be resolved.'189 The learned Chief Justice observed: 
G 
"Our attention was drawn to the debates and report of 
the drafting committee of the Constituent Assembly in 
187 (1894-95) 221.A. 107, 118 
188 1950 SCR 88 (6 Judges Bench) 
169 Quoted from Willoughby on the Constitution of the United States, page 64 
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respect of the wording of this clause. The report may be 
read not to control the meaning of the article, but may be 
seen in case of ambiguity. In Municipal Council of 
Sydney v. The Commonwea/th 190 it was thought that 
individual opinion of members of the Convention 
expressed in the debate cannot be referred to for the 
purpose of construing the Constitution. The same opinion 
was expressed in United States v. Wong Kim Ark. 191 The 
result appears to be that while it is not proper to take into 
consideration the individual opinions of Members of 
Parliament or Convention to construe the meaning of the 
particular clause, when a question is raised whether a 
certain phrase or expression was up for consideration 
at all or not, a reference to the debates may be permitted. 
In the present case the debates were referred to show 
that the expression "due process of law" was known to 
exist in the American Constitution and after a discussion 
was not adopted by the Constituent Assembly in our 
Constitution. In Administrator General of Bengal v. 
Prem/al Mullick a reference to the proceedings of the 
legislature which resulted in the passing of the Act was 
not considered legitimate aid in the construction of a 
particular section. The same reasons were held as cogent 
for excluding a reference to such debates in construing 
an Indian statute. Resort may be had to these sources 
with great caution and only when
latent ambiguities are 
to be resolved."192 
209. This view was endorsed by Fazl Ali, J who referred 
to the expression 'due process of law' which was originally 
G interpreted by the United States Supreme Court as referring 
to matters of procedure but was subsequently widened to cover 
substantive law as well. The learned judge held: 
190 (1904) 1 Com LR 208 
191 169 us 649, 699 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.J 
"In the course of the arguments, the learned Attorney-
A 
General referred us to the proceedings in the Constituent 
Assembly for the purpose of showing that the article as 
originally drafted contained the words "without due 
process of law" but these words were subsequently 
replaced by the words "except according to procedure B 
established by law". In my opinion, though the 
proceedings or discussions in the Assembly are not 
relevant for the purpose of construing the meaning of the 
expressions used in Article 21 , especially when they are 
plain and unambiguous, they are relevant to show that C 
the Assembly intended to avoid the use of the expression 
"without due process of law" ....... In the earliest times, 
the American Supreme Court construed "due process 
of law" to cover matters of procedure only, but gradually D 
the meaning of the expression was widened so as to 
cover substantive law also, by laying emphasis on the 
word "due".193 
210. Justice Patanjali Sastri was of the same opinion 
and so the learned judge held as follows: 
E 
"Learned counsel drew attention to the speeches made 
by several members of the Assembly on the floor of the 
House for explaining, as he put it, the "historical 
background".Aspeech·made in the course of the debate 
F 
on a bill could at best be indicative of the subjective intent 
of the speaker, but it could not reflect the inarticulate 
mental
processes lying behind the majority vote which 
carried the bill. Nor is it reasonable to assume that the 
minds of all those legislators were in accord. The Court G 
could only search for the objective intent of the legislature 
primarily in the words used in the enactment, aided by 
such historical material as reports of statutory 
· 1" Page 158 and 159 
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committees, preambles etc. I attach no importance, 
therefore, to the speeches made by some of the 
members of the ConstituentAssembly in the course of 
the debate on Article 15 (now Article 21 )". 194 
8 
211. Justice Mukherjea noted the concession of the 
learned Attorney-General that the CAD are not admissible to 
explain the meaning of the words used - a position quite the 
opposite from what is now taken by the learned Attorney-
General. The learned judge then observed that such extrinsic 
c evidence is best left out of account and held as follows: 
D 
E 
F 
G 
'The learned Attorney-General has placed before us the 
debates in the Constituent Assembly centering round the 
adoption of this recommendation of the Drafting 
Committee and he has referred us to the speeches of · 
several members of the Assembly who played an 
important part in the shaping of the Constitution. As an 
aid to discover the meaning of the words in a Constitution, 
these debates are of doubtful value. "Resort can be had 
to them"' says Willoughby, "with great caution and only 
when latent ambiguities are to be solved. The 
proceedings may be of some value when they clearly 
point out the purpose of the provision. But when the 
question is of abstract meaning, it will be difficult to derive 
from this source much· material assistance in 
interpretation." 
The learned Attorney-General concedes that these 
debates are not admissible to explain the
meaning of 
the words used and he wanted to use them only for the 
purpose of showing that the Constituent Assembly when 
they finally adopted the recommendation of the Drafting 
Committee, were fully aware of the implications of the 
differences between the old form of expression and the 
194 Page 201 and 202 
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753 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
new. In my opinion, in interpreting the Constitution, it will A 
be better if such extrinsic evidence is left out of account. 
In matters like this, different members act upon different 
impulses and from different motives and it is quite 
possible that some members accepted certain words in 
a particular sense, while others took them in a different B 
light."195 
212. Justice S.R. Das specifically stated that he 
expresses no opinion on the question of admissibility or 
otherwise of the CAD to interpret the Constitution. 
c 
213. In State .of Travancore-Cochin v. The Bombay 
Co. Ltd.196 it was unanimously held that reference to the CAD 
is unwarranted and such an extrinsic aid to the interpretation 
of statutes is not admissible. Speaking for the Court, Chief 
Justice Patanjali Sastri held: 
D 
"It remains only to point out that the use made by the 
learned Judges below of the speeches made by the 
members of the Constituent Assembly in the course of 
the debates on the draft Constitution is unwarranted. That E 
this form of extrinsic aid to the interpretation of statutes 
is not admissible has been generally accepted in 
England, and the same rule has been observed in the 
construction of Indian statutes -
see Administrator-
General of Bengal v. Prem Lal Mallick. The reason 
F 
behind the rule was explained by one of us in Gopalan 
case thus: 
"A speech made in the course of the debate on a
bill 
could at best be indicative of the subjective intent of G 
the speaker, but it could not reflect the inarticulate 
mental process lying behind the majority vote which 
carried the bill. Nor is it reasonable to assume that 
195 Page 273 and 27 4 
196 1952 SCR 1112 (5 Judges Bench) 
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A 
the minds of all those legislators were in accord," 
or, as it is more tersely put in an American case-
''Those who did not speak may not have agreed with 
those who did; and those who spoke might differfrom 
B 
each other- United States v. Trans-Missouri Freight 
Association. 197" 198 
c 
214. In Golak Nath v. State of Punjab199 Chief Justice 
Subba Rao noted the submissions of the petitioners, one of 
which was: 
'The debates in the Constituent Assembly, particularly. 
the speech of Mr Jawahar Lal Nehru, the first Prime 
Minister of India, and the reply of Dr Ambedkar, who 
piloted the Bill disclose clearly that it was never the 
D 
intention of the makers of the Constitution by putting in 
Article 368 to enable the Parliament to repeal the 
fundamental rights; the circumstances under which the 
amendment moved by Mr H.V. Karnath, one of the 
members of Constituent Assembly, was withdrawn and 
E 
Article 368 was finally adopted, support the contention 
that amendment of Part Ill is outside the scope of Article 
368."200 
215. The submissions of the learned Attorney-General 
F were also noted and one of which was, again, diametrically 
opposed to the submission made before us by the learned 
Attorney-General: 
G 
"Debates in the Constituent Assembly cannot be relied 
upon for construing Article 368 of the Constitution and 
even if they can be, there is nothing in the debates to 
prove positively that fundamental rights were
excluded 
197 169 us 290, 318 
'"Page 1121 
199 (1967) 2 SCR 762 (11 Judges Bench) 
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200 Page 782
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755 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
from amendment."201 
A 
216. The learned Chief Justice (speaking for the majority) 
referred to the CAD and observed: 
"We have referred to the speeches of Pandit Jawaharlal 
Nehru and Dr. Ambedkar not with a view to interpret the 
B 
provisions of Art. 368, which we propose to do on its 
own terms, but only to notice the transcendental character 
given to the fundamental rights by two of the important 
architects of the Constitution."202 
. 
217. Justice Wanchoo dealt with the issue a bit more C 
elaborately and on a consideration of the law (drawing support 
from Prem Lal Mullick and A.K. Gopalan) held that the CAD 
could not be looked into for interpreting Article 368 of the 
Constitution and that the said Article 'must be interpreted on 
D 
the words thereof as they finally found place in the Constitution.' 
It was said: 
"Copious references were made during the course of 
arguments to debates in Parliament and it is urged that 
it is open to this Court to look into the debates in order to E 
interpret Article 368 to find out the intention of the 
Constitution-makers. We are of opinion that we cannot 
and should not look into the debates that took place in 
the Constituent Assembly to determine the interpretation 
of Article 368 and the scope and extent of the provision 
F 
contained therein. It may be conceded that historical 
background and perhaps what was accepted or what 
was
rejected by the Constituent Assembly while the 
Constitution was being framed, may be taken into 
account in finding out the scope and extent of Article 368. 
G 
But we have no doubt that what was spoken in the 
debates in the Constituent Assembly cannot and should 
201 Page 783 
202 Page 792 
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not be looked into in order to interpretArticle 368 .......... . 
We are therefore of opinion that it is not possible to read 
the speeches made in the Constituent Assembly in order 
to interpret Article 368 or to define its extent and scope 
and to determine what it takes in and what it does not. 
As to the historical facts, namely, what was accepted or 
what was avoided in the Constituent Assembly in 
connection with Article 368, it is enough to say that we 
have not been able to find any help from the material 
relating to this. There were proposals for restricting the 
power of amendment under Article 368 and making 
fundamental rights immune therefrom and there were 
counter proposals before the Constituent Assembly for 
making the power of amendment all-embracing. They 
were all either dropped or negatived and in the 
circumstances are of no help in determining the 
interpretation of Article 368 which must be interpreted 
on the words thereof as they finally found place in the 
Constitution, and on those words we have no doubt that 
there are no implied limitations of any kind on the power 
to amend given therein."203 
218. Justice Bachawat concluded his judgment by 
referring to the issue of the CAD being an aid to interpreting 
F the Constitution. In rather terse words, the learned judge 
rejected the submission made in this regard and relied upon 
State of Travancore-Cochin. This is what was said: 
"Before
concluding this judgment I must refer to some of 
the speeches made by the members of the Constituent 
G 
Assembly in the course of debates on the draft 
constitution. These speeches cannot be used as aids 
for interpreting the Constitution. See State of Travancore-
Cochin and others v. Bombay Co. Ltd. Accordingly, I do 
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SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
not rely on them as aids to construction."204 
219. Justice Bachawat also makes a rather interesting 
reference to a special article written by Sir 8.N. Rau 
(Constitutional Adviser) on 151h August, 1948. Sir Senegal 
remarked: 
757 
A 
8 
"It seems rather illogical that a constitution should be 
settled by simple majority by an assembly elected 
indirectly on a very limited franchise and that it should . 
not be capable of being amended in the same way by a 
Parliament elected - and perhaps for the most part C 
elected directly by adult suffrage."205 
This is mentioned, without any comment, only to throw 
open the thought whether the interpretation of the Constitution 
can be tied down forever to the views expressed by a few D 
Hon'ble Members of the Constituent Assembly, who were 
undoubtedly extremely learned and visionary but who 
nevertheless constituted 'an assembly elected indirectly on a 
very limited franchise'. 
220. In Kesavananda Bharati it was held by Chief E 
Justice Sikri that 'speeches made by members of the 
legislature in the course of debates relating to the enactment 
of a statute cannot be used as aids for interpreting any 
provisions of the statute.' The learned Chief Justice held that 
the same rule is applicable to provisions of the Constitution 
F 
as well and for this reliance was placed, inter alia, on Prem 
Lal Mullick, A.K Gopalan, State ofTravancore-Cochin and 
Golak
Nath. Explaining Union of India v. H.S. Dhillon206 the 
learned Chief Justice said: 
"In Union oflndia v. H.S. Dhillon I, on behalf of the majority, 
before referring to the speeches observed at p. 58 that 
20' Page 922 
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20s (1972) 2 SCR 331 
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"we are however, glad to find from the following extracts 
from the debates that our interpretation accords with what 
was intended". There is no harm in finding confirmation 
of one's interpretation in debates but it is quite a different 
thing to interpret the provisions of the Constitution in the 
B 
light of the debates."207 
221. Apart from relying on case law, the learned Chief 
Justice gave an additional reason for concluding that reliance 
on the CAD was not advisable for interpreting the provisions 
c of the Constitution. This is best understood in the words of the 
D 
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F 
G 
H 
learned Chief Justice: 
'There is an additional reason for not referring to debates 
for the purpose of interpretation. The Constitution, as far 
as most of the Indian States were concerned, came into 
operation only because of the acceptance by the Ruler 
or Rajpramukh. This is borne out by the following extract 
from the statement of Sardar Vallabhbhai Patel in the 
Constituent Assembly on October 12, 1949, (CAD, Vol. 
X, pp. 161-63): 
"Unfortunately we have no properly constituted 
legislatures in the rest of the States (apart from Mysore, 
Saurashtra and Travancore and Cochin Union) nor will 
it be possible to have legislatures constituted in them 
before the Constitution of India emerges in its final 
form. We have, therefore, no option but to make the 
Constitution operative in these States on the basis of 
its acceptance by the Rulers
or the Rajpramukh, as 
the case may be, who will no doubt consult his Council 
of Ministers." 
In accordance with this statement, declarations were 
issued by the Rulers or Rajpramukhs accepting the 
201 Paragraph 183
SUPREME COURT ADVOCATES-ON-RECORD 
759 
ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
Constitution. 
A 
It seems to me that wh.en a Ruler or Rajpramukh or the 
people of the State accepted the Constitution of India in 
its final form, he did not accept it subject to the speeches 
made during the Constituent Assembly debates. The 
8 
speeches can, in my view, be relied on only in order to 
see if the course of the progress of a particular provision 
or provisions throws any light on the historical background 
or shows that a common understanding or agreement 
was arrived at between certain sections of the people."208 c 
222. Justice Hegde and Justice AK Mukherjea also held 
that reliance could not be placed on the CAD to interpret any 
provision of the Constitution. Reference was made to State 
of Travancore-Cochin and it was held: 
D 
"For finding out the true scope of Article 31(2) as it stands 
now, the learned Advocate-General of Maharashtra as 
well as the Solicitor-General has taken us through the 
history of this article. According to them the article as it 
stands now truly represents the intention of the 
E 
Constitution-makers. In support of that contention, we 
were asked to go through the Constituent Assembly 
debates relating to that article. In particular we were 
invited to go through the speeches made by Pandit 
Nehru, Sir Alladi Krishnaswami Ayyar, Dr Munshi and Dr F 
Ambedkar. In our opinion, it is impermissible for us to do 
so. It is a well-settled rule
ofconstruction that speeches 
made by members of a Legislature in the course of 
debates relating to the enactment of a statute cannot be 
used as aids for interpreting any of the provisions of the G 
statute. The same rule is applicable when we are called 
upon to interpret the provisions of a Constitution."209 
20• Paragraph 184 to 186 
209 Paragraph 683 
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The learned judges observed that no decision was 
brought to their notice dissenting with the view mentioned 
above. 
223. Justice HR Khanna was also of the opinion that the 
8 
CAD could be referred only for the limited purpose of 
determining the history of the constitutional provision. The CAD 
'cannot form the basis for construing the provisions of the 
Constitution.' The learned judge further said that the intention 
of the draftsman of a statute would have to be gathered from 
c the words used. The learned judge said: 
D 
E 
F 
G 
"The speeches in the Constituent Assembly, in my 
opinion, can be referred to for finding the history of the 
Constitutional provision and the background against 
which the said provision was drafted. The speeches can 
also shed light to show as to what was the mischief which 
was sought to be remedied and what was the object which 
was sought to be attained in drafting the provision. The 
speeches cannot, however, form the basis for construing 
the provisions of the Constitution. The task of interpreting 
the provision of the Constitution has to be done 
independently and the reference to the speeches made 
in the Constituent Assembly does not absolve thecourt 
from performing that task. The draftsmen are supposed 
to have expressed their intentions in the words used by 
them in the provisions. Those words are final repositories 
of the intention and it would be ultimately from the words 
of
the provision that the intention of the draftsmen would 
have to be gathered."210 
224. Justice Y.V. Chandrachud relied upon State of 
Travancore-Cochin, A.K. Gopalan and Golak Nath to 
conclude: 
"Debates of the Constituent Assembly and of the First 
H 
210 Paragraph 1368
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Provisional Parliament were extensively read out to us A 
during the course of arguments. I read the speeches with 
interest, but in my opinion, the debates are not admissible 
as aids to construction of constitutional provisions."211 
A little later it was said: 
"It is hazar-dous to rely upon parliamentary debates as 
aids to statutory construction. Different speakers have 
different motives and the system of "Party Whip" leaves 
B 
no warrant for assuming that those who voted but did not 
speak were of identical persuasion. That assumption may C 
be difficult to make even in regard to those who speak. 
The safest course is to gather the intention of the 
legislature from the language it uses. Therefore, 
parliamentary proceedings can be used only for a limited 
purpose as explained in Gopalan case."212 
· 
D 
225. A contrary view was rhetorically expressed by 
Justice Jaganmohan Reddy but it was eventually held that the 
CAD could aid in interpretation, being 'valuable material' unlike 
legislative debates which could be motivated by partisan views E 
and party politics. Constituent Assembly Debates were not 
motivated by such partisan considerations. It was said: 
"Speaking for myself, why should we not look into them 
[CAD] boldly for ascertaining what was the intention of 
·our framers and how they translated that intention? What F 
is the rationale for treating them as forbidden or
forbidding material. The Court in a constitutional matter, 
where the intent of the framers of the Constitution as 
embodied in the written document is to be ascertained, 
should look into the proceedings, the relevant data G 
including any speech which may throw light on 
ascertaining it. It can reject them as unhelpful, if they throw 
211 Paragraph 2137 
212 Paragraph 2140 
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no light or throw only dim light in which nothing can be 
discerned ........... In proceedings of a legislature on an 
ordinary draft bill, as I said earlier, there may be a partisan 
and heated debate, which often times may not throw any 
light on the issues which come before the Court but the 
proceedings in a Constituent Assembly have no such 
partisan nuances and their only concern is to give the 
national a working instrument with its basic structure and 
human values sufficiently balanced and stable enough 
to allow an interplay of forces which will subserve the 
needs of future generations. The highest Court created 
under it and charged with the duty of understanding and 
expounding it, should not, if it has to catch the objectives 
of the framers, deny itself the benefit of the guidance 
derivable from the records of the proceedings and the 
deliberations of the Assembly. "213 
226. Justice K.K. Mathew supported the view of Justice 
Jaganmohan Reddy and observed that: 'Logically, there is no 
reason why we should exclude altogether the speeches made 
E 
in the Constituent Assembly by individual members if they throw 
any light which will resolve latent ambiguity in a provision of 
Constitution.' The learned judge went on to hold in a subsequent 
paragraph of the decision: 
F 
G 
H 
"If the debates in the Constituent Assembly can be looked 
into to understand the legislative history of a provision of 
the
Constitution including its derivation, that is, the various 
steps leading up to and attending its enactment, to 
ascertain the intention of the makers of the Constitution, 
it is difficult to see why the debates are inadmissible to 
throw light on the purpose and general intent of the 
provision. After all, legislative history only tends to reveal 
the legislative purpose in enacting the provision and 
213 Paragraph 1088
SUPREME COURT ADVOCATES-ON-RECORD 
763 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
thereby sheds light upon legislative intent. It would be A 
drawing an invisible distinction if resort to debates is 
permitted simply to show the legislative history and the 
same is not allowed to show the legislative intent in case 
of latent ambiguity in the provision."214 
227. In Samsher Singh in their concurring opinion, . 8 
Justice Krishna Iyer (for himself and Justice P.N. Bhagwati) 
extensively referred to the CAD for arriving at their conclusion, 
while Chief Justice Ray (for himself and four other learned 
judges) made no reference to the CAD. 
c 
228. Be that as it may, reference to the CAD again came 
up for consideration in Indra Sawhney v. Union oflndia.215 
Speaking for the learned Chief Justice, Justice M.N. 
Venkatachaliah, Justice Ahmadi and himself, Justice B.P. 
Jeevan Reddy clarified that though the CAD or the speeches D 
of Dr. Ambedkar cannot be ignored, they are not conclusive or 
binding on the Court but can be relied upon as an aid to 
interpreting a constitutional provision. The CAD were referred 
to for 'furnishing the context and the objective' to be achieved 
by clause (4) of Article 16 of the Constitution. Reference was 
E 
made, inter alia, to Go/aknath, Dhillon and Kesavananda 
Bharati and it was held: 
"We are aware that what is said during these debates is 
not conclusive or binding upon the Court because several 
F 
members may have expressed several
views, all of which 
may not be reflected in the provision finally enacted. The 
speech of Dr Ambedkar on this aspect, however, stands 
on a different footing. He was not only the Chairman of 
the Drafting Committee which inserted the expression 
G 
"backward" in draft Article 10(3) [it was not there in the 
original draft Article 10(3)], he was virtually piloting the 
214 Paragraph 1598 
215 1992 Supp (3) SCC 217 (9 Judges Bench) 
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draftArticle. In his speech, he explains the reason behind. 
draft clause (3) as also the reason for which the Drafting 
Committee added the expression "backward" in the 
clause. In this situation, we fail to understand how can 
anyone ignore his speech while trying tci ascertain the 
meaning of the said expression. That the debates in 
Constituent Assembly can be relied upon as an aid to 
interpretation of a constitutional provision is borne out 
by a series of decisions of this Court ......... Since the 
expression "backward" or "backward class of citizens" 
is not defined in the Constitution, reference to such 
debates is permissible to ascertain, at any rate, the 
context, background and objective behind them. 
Particularly, where the Court wants to ascertain the 
'original intent' such reference may be unavoidable."216 
229. In S.R. Chaudhuri v. State of Punjab217 it was 
held that it is settled that the CAD may be relied upon 'as an 
aid to interpret a constitutional provision ·because it is the 
function of the court to find out the intention of the framers of 
E the Constitution.' This view was followed by me in Manoj 
Narula v. Union of lndia.218 
230. In T.M.A. Pai Foundation v. State ofKarnataka219 
Justice Khare referred to Kesavananda Bharati and 
F observed therein that though the CAD are not conclusive, yet 
they can throw light into the intention of the framers in enacting 
provisions of the
Constitution. On this basis the learned judge 
held: 
"Thus, the accepted view appears to be that the report 
G 
of the Constituent Assembly debates can legitimately be 
taken into consideration for construction of the provisions 
216 Paragraph 772 
211 (2001 l 1 sec 126 
218 (2014) 9 SCC 1 (5 Judges Bench) 
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219 (2002) 8 sec 481 (11 Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
765 
ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 
of the Act or the Constitution."220 
A 
231. Justice Variava (for himself and Justice Bhan) also 
referred to Kesavananda Bharati and held that though the 
CAD are not conclusive, but 'in a constitutional matter where 
the intent of the framers of the Constitution is to be ascertained, 
8 
the Court should look into the proceedings and the relevant 
data, including the speeches, which throw light on ascertaining 
the intent.' 
232.Justice Syed Shah Quadri stated an interesting 
principle in the following words: 
C 
"The correct way to interpret an article is to go by its plain 
language and lay bare the meaning it conveys. It would 
no doubt be useful to refer to the historical and political 
background which supports the interpretation ·given by D 
the court and in that context the debates of the Constituent 
Assembly would be the best record of understanding all 
those aspects. A host of considerations might have 
prompted the people of India through Members of 
Constituent Assembly to adopt, enact and to give to 
E 
themselves the Constitution. We are really concerned 
with what they have adopted, enacted and given to 
themselves in these documents. We cannot and we 
should not cause scar on it which would take years for 
the coming generations to remove from its face.''221 
F 
233. The learned judge then went on to hold, relying on 
Prem Lal Mullick, A.K. Gopalan, State of Travancore-
Cochin, Kesavananda Bharati and Indra Sawhney that 
'admissibility of speeches made in the Constituent Assembly G 
for interpreting provisions of the Constitution is not permissible' 
and that 'The preponderance of opinion appears to me not to 
rely on the debates in the Constituent Assembly or the 
220 This conclusion appears to be doubtful 
221 Paragraph 286 
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A 
Parliament to interpret a constitutional provision although they 
may be relevant for other purposes.' The learned judge quoted 
a sentence from Black Clawson International Ltd. v. 
Papierwerke 
Waldhof 
Aschaffenburg 
B 
Aktiengesellschaff22 to the following effect: 
"We are seeking not what Parliament meant but the true 
meaning of what Parliament said.''223 
234. In re: Special Reference No. 1 of 2002 (Gujarat 
Assembly Election Matter)224 the issue of relying on the CAD 
C again came up for consideration. Justice Khare (for the Chief 
Justice, Justice Bhan and himself) referred to Kesavananda 
Bharati and held: 
D 
"Constituent Assembly Debates although not conclusive, 
yet show the intention of the framers of the Constitution 
in enacting provisions of the Constitution and the 
Constituent Assembly Debates can throw light in 
ascertaining the intention behind such provisions."225 
235. In a decision rendered by the Constitutional Court 
E of the Republic of South Africa in The State v. T. 
Makwanyane226 a brief survey of the law in the United States 
Supreme Court, German Constitutional Court, Canadian 
Supreme Court, this Court, European Court of Human Rights 
and the United Nations Committee on Human Rights was 
F carried out and it was held (per Justice Chaskalson): 
In countries in which the constitution is similarly the 
supreme law, it is not unusual for the courts to have regard 
to the circumstances existing at
the time the constitution 
G 
was adopted, including the debates and writings which 
formed part of the process. The United States Supreme 
222 [1975] AC 591 
223 Paragraph 297 
22• (2002i s sec 237 
225 Paragraph 16 
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226 1995 (3) SA 391 (CC) (Eleven Judges Bench) paragraph 16
SUPREME COURT ADVOCATES-ON-RECORD 
767 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Court pays attention to such matters, and its judgments A 
frequently contain reviews of the legislative history of the 
provision in question, including references to debates, 
and statements made, at the time the provision was 
adopted. The German Constitutional Court also has 
regard to such evidence. The Canadian Supreme Court B 
has held such evidence to be admissible, and has 
referred to the historical background including the pre-
confederation debates for the purpose of interpreting 
provisions of the Canadian Constitution, although it 
attaches less weight to such information than the United C 
States Supreme Court does. It also has regard to 
ministerial statements in Parliament in regard to the 
purpose of particular legislation. In India, whilst speeches 
of individual members of Parliament or the Convention 
are apparently not ordinarily admissible, the reports of 
drafting committees can, according to Seervai, "be a 
helpful extrinsic aid to construction." Seervai cites Kania 
D 
CJ in A. K. Gopalan v The State for the proposition that 
whilst not taking " ... into consideration the individual 
E 
opinions of Members of Parliament or Convention to 
construe the meaning of a particular clause, when a 
question is raised wl:lether a certain phrase or expression 
was up for consideration at all or not, a reference to 
debates may be permitted." The European Court of F 
Human
Rights and the United Nations Committee on 
Human Rights all allow their deliberations to be informed 
by travaux preparatoires."227 (Internal citations omitted) 
236. Earlier, on a consideration of the law in England it 
was held (per Justice Chaskalon): 
G 
"Debates in Parliament, including statements made by 
Ministers responsible for legislation, and explanatory 
227 Paragraph 16 
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memoranda providing reasons for new bills have not 
been admitted as background material. It is, however, 
permissible to take notice of the report of a judicial 
commission of enquiry for the limited purpose of 
ascertaining "the mischief aimed at the statutory 
enactment in question." These principles were derived 
in part from English law. In England, the courts have 
recently relaxed this exclusionary rule and have held, in 
Pepper (Inspector of Taxes) v Hart that, subject to the 
privileges of the House of Commons: 
... reference to Parliamentary material should be 
permitted as an aid to the construction of legislation 
which is ambiguous or obscure or t~e literal meaning 
of which leads to an absurdity. Even in such cases 
references in court to Parliamentary material should 
only be permitted where such material clearly 
discloses the mischief aimed at or the legislative 
intention lying behind the ambiguous or obscure 
words."228 (Internal citations omitted) 
237. It is quite clear that the overwhelming view of the 
various learned judges in different decisions rendered by this 
Court and in other jurisdictions as well is that: (1) A reference 
may be made to the CAD or to Parliamentary debates (as 
F 
indeed to any other 'relevant material') to understand the context 
in which the constitutional or statutory provisions were framed 
and to gather the intent of the law makers but only if there is 
some
ambiguity or uncertainty or incongruity or obscurity in 
the language of the provision. A reference to the CAD or the 
G Parliamentary debates ought not to be made only because 
they are there;229 (2) The CAD or Parliamentary debates ought 
not to be relied upon to interpret the provisions of the 
228 Paragraph 14 
229 With due apologies to George Mallory who is famously quoted as having 
replied to the question "Why do you want to climb Mount Everest?" with the 
H 
retort "Because it's there."
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Constitution or the statute if there is no ambiguity in the A 
language used. These provisions ought to be interpreted 
independently- or at least, if reference is made to the CAD or 
Parliamentary debates, the Court should not be unduly 
influenced by the speeches made. Confirmation of the 
interpretation may be sought from the CAD or the Parliamentary B 
debates but not vice versa. 
238. This discussion has been necessitated by the 
submission of the learned Attorney-General that the Constituent 
Assembly did not intend that for the appointment of a judge of c 
the Supreme Court or of the High Court the concurrence of the 
Chief Justice of India is necessary. The word 'consultation' in 
Article 124 of the Constitution and in Article 217 of the 
Constitution did not and could not mean 'concurrence'. This, 
according to the learned Attorney-General is specifically and D 
clearly borne out from the CAD. In fact, the learned Atti,irney-
General drew our attention to the discussion that took place in 
the Constituent Assembly on 23rc1 and 241h May, 1949. 
239. It was submitted that under the circumstances there 
was no ambiguity in the meaning of the word 'consultation' 
E 
and a reference to the CAD was necessary, applying the dictum 
of Chief Justice Sikri, only to confirm the interpretation of 
'consultation' as not meaning 'concurrence'. It is for this reason, 
apart from others that the
Second Judges case and the Third F 
Judges case required reconsideration. 
240. The learned Attorney-General also drew our attention 
to the following expression of opinion by Mr. T.T. 
Krishnamachari in the ConstituentAssembly on 271h May, 1949 
in relation to clause (3) of the draft Article 122 concerning the G 
officers and servants and expenses of the Supreme Court. 230 
230 (3) The administrative expenses of the Supreme Court, including all 
salaries, allowances and pensions payable to or in respect of the officers 
and servants of the court, shall be charged upon the revenues of India. and 
any fees or other moneys taken by the court shall form part of those revenues. H
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The contention was that it was not the intention of the Constituent 
Assembly to make the Chief Justice of India or the Supreme 
Court above the executive or the Legislature thereby discarding 
the theory of separation of powers, and if 'consultation' is 
interpreted to mean 'concurrence', then that would be the 
B 
inevitable result. Reliance was placed on the following speech: 
c 
D 
E 
F 
G 
H 
"While I undoubtedly support the amendment moved by 
Dr. Ambedkar, I think it should be understood by the 
Members of this House, and I do hope by those people 
who will be administering justice and also administering 
the country in the future that this is a safeguard rather 
than an operative provision. The only thing about it is that 
a matter like the employment of staff by the Judges should 
be placed ordinarily outside the purview of the Executive 
which would otherwise have to take the initiative to include 
these items in the budget for the reason that the 
independence of the Judiciary should be maintained and 
that the Judiciary should not feel that they are subject to 
favours that the Executive might grant to them from time 
to time and which would naturally influence their decision 
in any matter they have to take where the interests of the 
Executive of the time being happens to be concerned. 
At the same time, Sir, I think it should be made clear that 
it is not the intention of this House or of the framers of 
. this
Constitution that they want to create specially 
favoured bodies which in themselves becomes an 
lmperium in /mperio, completely independent of the 
Executive and the Legislature and operating as a sort of 
superior body to the general body politic. If that were so, 
I think we should be rather chary of introducing a provision 
of this nature, not merely in regard to the Supreme Court 
. but also in regard to the Auditor-General, in regard to the 
Union Public Service Commission, in regard to the 
Speaker and the President of the two House of
SUPREME COURT ADVOCATES-ON-RECORD 
771 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Parliament and so on, as we will thereby be creating a A 
number of bodies which are placed in such a position 
that they are bound to come into conflict with the 
Executive in every attempt they make to display their 
superiority. In actual practice, it is better for all these 
bodies to more or less fall in line with the regulations that 
B 
obtain in matters of recruitment to the public services, 
conditions of promotion and salaries paid to their staff."231 
Replying to this debate, Dr. Ambedkar clarified the 
position that there was no question of creating an /mperium c 
in lmperio. Dr. Ambedkar said: 
"Mr. President, Sir, I would just like to make a few 
observations in order to clear the position. Sir, there is 
no doubt that the House in general, has agreed that the 
independence of the Judiciary from the Executive should 
be made as clear and definite as we could make it by 
law. At the same time, there is the fear that in the name 
D . 
of the independence of the Judiciary, we might be 
creating, what my Friend Mr. T. T. Krishnamachari very 
aptly called an "lmperium in lmperio". We do not want to 
E 
create an lmperium in lmperio, and at the same time 
we want to give the Judiciary ample independence so 
that it can act without fearorfavourofthe Executive. My 
friend, if they will carefully examine the provisions of the 
F 
new amendment which I have proposed in place of the
original article 122, will find that the new article proposes 
to steer a middle course. It refuses to create an lmperium 
in lmperio, and I think it gives the Judiciary as much 
independence as is necessary for the purpose of G 
administering justice without fear or favour. I need not 
therefore, dilate on all the provisions contained in this 
new article 122 ..... "232 
231 http://parliamentofindia nic.in/ls/debates/vol8p1 Ob.him 
232 http·Uparliamentofindia.njc jn/ls/debates/vol8p10b htm 
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241. It is quite clear from the above that the endeavour 
of Dr. Ambedkar was to ensure the independence of the 
judiciary from the executive witho.ut creating any power 
imbalance and this, therefore, needed steering a middle course 
whether in the appointment of judges or the officers of the 
B Supreme Court. There can be no doubt about this at all. But 
what is the 'independence of the judiciary' and how can it be 
. maintained and does the 991h Constitution Amendment Act 
impact on that independence? These are some troubling 
questions that need an answer with reference to the issue 
C before us, namely, the constitutional validity of the ggth 
Constitution Amendment Act. 
Judicial pronouncements and the third preliminary 
issue 
D 
242. The learned Attorney-General submitted that in any 
event the Second Judges case requires reconsideration. 
There is large volume of case law which gives guidance on 
the circumstances when an earlier decision of this Court should 
be reconsidered. It is necessary to consider these cases 
E before deciding whether a platform for reconsideration of the 
Second Judges case has been made. 
243. Beng~l Immunity Co. Ltd. v. State of Bihar & 
Ors.233 concerned the interpretation of Article 286 of the 
F 
Constitution which, it was contended, had been incorrectly 
interpreted in State of Bombay v. The United Motors {India) 
Ltd. 234 This Court addressed the issue of reconsideration of a 
previous
decision rendered by it. Chief Justice Das (speaking 
for himself, Justice Vivian Bose and Justice Syed Jafer Imam) 
G discussed the judgments delivered in England, Australia, the 
United States and by the Privy Council and was of the view 
(for several reasons) that a previous decision rendered by this 
Court could be departed from. It was observed that it was not 
233 AIR 1955 SC 661 (7 Judges Bench) 
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234 (1953) 4 SCR 1069 (5 Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
773 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
easy to amend the Constitution and if an erroneous A 
interpretation was put upon a provision thereof it could 
'conceivably be perpetuated or may at any rate remain 
unrectified for a considerable time to the great detriment to 
public well being.' It was held, inter alia, that if this Court was 
convinced of its error and 'baneful effect' on the general 
B 
interests of the public of an erroneous interpretation of a 
provision of the Constitution, then there is nothing in the 
Constitution that prevents this Court in departing from its earlier 
decision. It could also depart from a previous decision if it was 
vague or inconsistent or plainly erroneous. It was held that the C 
doctrine of stare decisis 'is not an inflexible rule of law and 
cannot be permitted to perpetuate our errors to the detriment 
to the general welfare of the public or a considerable section 
thereof.' 
D 
244. In a significant passage (one that will have a bearing 
on this subject), it was observed: 
''The majority decision does not merely determine the 
rights of the two contending parties to the Bombay appeal. 
Its effect is far reaching as it affects the rights of all 
E 
consuming public. It authorises the imposition and levying 
of a tax by the State on an interpretation of a constitutional 
provision which appears to us to be unsupportable. To 
follow that interpretation will result in perpetuating what, 
F
with humility we say, is an error and in perpetuating a tax 
burden imposed on the people which, according to our 
considered opinion, is manifestly and wholly 
unauthorised. 
It is not an ordinary pronouncement declaring the rights G 
of two private individuals inter se. It involves an 
adjudication on the taxing power of the States as against 
the consuming public generally. If the decision is 
erroneous, as indeed we conceive it to be, we owe it to 
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that public to protect them against the illegal tax burdens 
which the States are seeking to impose on the strength 
of that erroneous recent decision."235 
245. Justice N.H. Bhagwati also reviewed several 
B decisions from various jurisdictions and agreed with Chief 
Justice Das but drew a distinction between reconsideration 
of a previous decision concerning the interpretation of a 
provision of a legislative enactment and the interpretation of a 
provision of the Constitution. While an erroneous interpretation 
c of the former by the Court could be corrected by the Legislature, 
it was not easy to amend the Constitution to correct its 
erroneous interpretation by the Court. It is for this reason tha.t 
Justice N.H. Bhagwati held that if the previous decision 
interpreting the provisions of the Constitution was 'manifestly 
D wrong or erroneous' and that 'public interest' demanded its 
reconsideration then the Court should have no hesitation in 
·doing so. 
246. Justice Jagannadhadas also held that this Court is 
competent to reconsider its earlier decisions. It was added 
E that: 'But, it does not follow that such power can be exercised 
without restriction or limitation or that a prior decision can be 
reversed on the ground that, on later consideration, the Court 
disagrees with the prior decision and thinks it erroneous.' It 
F was held that though the power to reconsider a prior decision 
does exist, the actual exercise
of that power should be confined 
'within very narrow limits.' The learned Judge preferred to adopt 
the view expressed by Justice Dixon of the High Court of 
Australia in Attorney-General for N.S. W. v. The Perpetual 
G Trustee Co. Ltd. 236 to the effect that a prior decision should 
not be reconsidered simply because an opposite conclusion 
is to be preferred. 
24 7. Justice Venkatarama Aiyar also held the view that 
235 Paragraph 17 
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SUPREME COURT ADVOCATES-ON-RECORD 
775 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
this Court could reconsider an earlier decision rendered by it. 
A 
However, the learned Judge was of the opinion that the power 
to reconsider should be 'exercised very sparingly and only in 
exceptional circumstances, such as when a material provision 
of law had been overlooked, or where a fundamental 
assumption on which the decision is based, turns out to be 
B 
mistaken.' Agreeing with the view canvassed by Justice 
Jagannadhadas (and Justice Dixon) the learned Judge posed 
the following question and also answered it: 'Can we differ 
from a previous decision of this Court, because a view contrary 
to the one taken therein appears to be preferable? I would 
C 
unhesitatingly answer it in the negative, not because the view 
previously taken must necessarily be infallible but because it 
is important in public interest that the law declared should be 
certain and final rather than that it should be declared in one 
D 
sense or the other.' 
248. Justice B.P. Sinha agreed with Justice 
Jagannadhadas and Justice VenkataramaAiyar and held that 
a previous judgment of this Court ought not to be reviewed 
simply because another view may be taken of the points in 
E 
controversy. This Court should review its previous decisions 
only in exceptional circumstances. It was observed that 
'Definiteness and certainty of the legal position are essential 
conditions for the growth of the rule of law.'
249. Lt. Col. Khajoor Singh v. Union of lndia 237 
concerned the interpretation of Article 226 of the Constitution 
and Article 32(2-A) of the Constitution (as applicable to Jammu 
F 
& Kashmir). Though Justice Subba Rao (dissenting) and 
Justice Das Gupta (concurring) delivered separate judgments, G 
they did not advert to the question of reconsideration of a 
decision of this Court. Chief Justice B.P. Sinha speaking for 
the remaining learned judges took the view that a previous 
decision rendered by this Court may be reconsidered if there 
237 AIR 1961 SC 532 (7 Judges Bench) 
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are 'clear and compelling reasons' to do so or if there is a fair 
amount of unanimity that the previous decision is 'manifestly 
wrong' or if it is demonstrated that the earlier decision was 
erroneous 'beyond all reasonable doubt' particularly on a 
constitutional issue. If any inconvenience is felt on the 
B interpretations of the provisions of the Constitution under 
consideration. then the remedy 'seems to be a constitutional 
amendment.' 
250. In Keshav Mills v. C/P-38 the question for 
c consideration was the scope of the High Court's powers under 
Section 66(4) of the Income Tax Act, 1922. It was submitted by 
the learned Attorney-General that two earlier decisions on the 
subject, that is, New Jehangir Vakil Mills Ltd. v. CIP-39 and 
Pet/ad Turkey Red Dye Works Co. Ltd., Pet/ad v. C/P-40 
o needed reconsideration. In considering this submission, it was 
held that when this Court interprets a statutory provision, merely 
because an alternative view different from an opinion earlier 
expressed by this Court is more reasonable is not necessarily 
an adequate reason for reconsidering the earlier opinion. This 
E 
Court should ask itself the question whether in the interests of 
the public good or for any other valid and compulsive reasons. 
it is necessary that the earlier decision should be revised. This 
Court held: 
F 
G 
"When this Court decides questions of law, its decisions 
are, under Article 141 binding on all
courts within the 
territory of India and so it must be the constant endeavour 
and concern of this Court to introduce and maintain an 
element of certainty and continuity in the interpretation of 
law in the country ..... That is not to say that if on a 
subsequent occasion, the Court is satisfied that its earlier 
decision was clearly erroneous, it should hesitate to 
236 AIR 1965 SC 1636 (7 Judges Bench) 
239 (1960) 1 SCR 249 
H 
240 (1963) Supp 1 SCR 871
SUPREME COURT ADVOCATES-ON-RECORD 
777 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
correct the error; but before a previous decision is 
A 
pronounced to be plainly erroneous, the Court must be 
satisfied with a fair amount of unanimity amongst its . 
members that a revision of the said view is fully 
justified."241 
251. Magan/al Chhaganlal v. Municipal Corporation B 
of Greater Bombay242 concerned the validity of proceedings 
under Chapter V-A of the Bombay Municipal Corporation Act, 
1888 and the Bombay Government Premises (Eviction)Act, 
1955 in the context of the decision of this Court in Northern c 
India Caterers v. State of Punjab. 243 Justice H.R. Khanna 
alone considered the question of overruling an earlier decision 
of this Court, namely, in Northern India Caterers. It was 
observed that certainty in law would be eroded if a decision 
that 'held the field' for several years is readily overruled -
D 
'certainty and continuity are essential ingredients of rule of law.' 
It was held that if two views are possible then, simply because 
the earlier decision does not take a view that is more 
acceptable would not be a ground for overruling the earlier 
decision. An earlier decision ought to be overruled only for E 
compelling reasons otherwise it would create 'uncertainty, 
instability and confusion if the law propounded by this Court 
on the basis of which numerous cases have been decided 
and many transactions have taken place is held to be not the 
correct law.'
Justice Khanna observed that new ideas and 
F 
developments in the field of law and that the fullness of 
experience and indeed subsequent experience cannot be 
wished away. The learned judge held: 
"As in life so in law things are not static. Fresh vistas and G 
horizons may reveal themselves as a result of the impact 
of new ideas and developments in different fields of life. 
241 Paragraph 23 
242 (1974) 2 SCC 402 (7 Judges Bench) 
243 AIR 1967 SC 1581 
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778 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Law, if it has to satisfy human needs and to meet the 
problems of life, must adapt itself to cope with new 
situations. Nobody is so gifted with foresight that he can 
divine all possible human events in advance and 
prescribe proper rules for each of them. There are, 
however, certain verities which are of the essence of the 
rule of law and no law can afford to do away with them. At 
the same time it has to be recognized that there is a 
continuing process of the growth of law and one can 
retard it only at the risk of alienating law from life itself. 
There should not be much hesitation to abandon an 
untenable position when the rule to be discarded was in 
its origin the product of institutions or conditions which 
have gained a new significance or development with the 
progress of years. It sometimes happens that the rule of 
law which grew up in remote generations may in the 
fuHness of ·experience be found to serve another 
generation badly. The Court cannot allow itself to be tied 
down by and become captive of a view which in the light 
of the subsequent experience has been found to be 
patently erroneous, manifestly unreasonable or to cause 
hardship or to result in plain iniquity or public 
inconvenience."244 
252. Ganga Sugar Corporation v. State of Uttar 
F 
Pradesh245 related to the constitutional validity of a levy under 
the U.P. Sugarcane (Purchase Tax) Act, 1961. The decision 
does not contain
any detailed discussion on the subject of 
reconsideration of an earlier decision of this Court. But it was 
nevertheless held that decisions of a Constitution Bench must 
G be acceptea as final unless the subject is of fundamental 
importance to national life or the reasoning of the previous 
decision is so plainly erroneous that 'it is wiser to be ultimately 
244 Paragraph 22 
245 (1980) 1 SCC 223 (5 Judges Bench) 
H
SUPREME COURT ADVOCATES-ON-RECORD 
779 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
right rather than to be consistently wrong. Stare decisis is not A 
a ritual of convenience but a rule with limited exceptions. 
Pronouncements by Constitution Benches should not be 
treated so cavalierly as to be revised frequently.' 
253. A rather exhaustive reference to the cases and the 
8 
law laid down in different jurisdictions was adverted to in Union 
of India v. Raghubir Singh.246 This decision concerned itself 
with the grant of solatium under the Land Acquisition Act, 1894 
as amended by the Land Acquisition (Amendment) Act, 1984. 
Reference was made to the 'guidelines' culled out from the c 
decisions of the House of Lords247 which suggest that the 
freedom to reconsider an earlier decision ought to be 
exercised sparingly; a decision ought not to be overruled if it 
upsets the legitimate expectation of persons who have made 
arrangements based on the earlier decision or causes great D 
uncertainty in the law; decisions involving the interpretation of 
statutes or documents ought not to be overruled except in rare 
or exceptional circumstances; if the consequences of 
departing from an earlier decision are not foreseeable; merely 
because an earlier decision was wrongly taken is not a good 
E 
enough justification for overruling it. On the other hand, a prior 
decision ought to be overruled 'if in relation to some broad 
issue or principle it is not considered just or in keeping
with 
contemporary social conditions or modern conceptions of 
public policy.' 
F 
254. Reference was also made to several decisions 
earlier rendered by this Court (including those mentioned 
above) and though no new or different principles or guidelines 
were laid down, the law as stated by this Court was iterated, G 
and it was observed: 'It is not necessary to refer to all the cases 
on the point. The broad guidelines are easily deducible from 
246 (1989) 2 SCC 754 (5 Judges Bench) 
. 
247 Reference was made to Dr. Alan Paterson's Law Lords. This reference is 
not at all clear and is simply stated as '1982 at pp. 156-157' 
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A what has gone before. The possibility of further defining these 
guiding principles can be envisaged with further juridical 
experience, and when common jurisprudential values linking 
different national systems of law may make a consensual 
B 
c 
D 
E 
F 
G 
pattern possible. But that lies in the future.' 
255. Echoing the views expressed in Magan/al 
Chhaganlal and Raghubir Singh with regard to 
acknowledging changes with the passage of time and modern 
conceptions of public policy, it was said: 
"Not infrequently, in the nature of things there is a gravity-
heavy inclination to follow the groove set by precedential 
law. Yet a sensitive judicial conscience often persuades 
the mind to search for a different set of norms more 
responsive to the changed social context. The dilemma 
before the Judge poses the task of finding a new 
equilibrium prompted not seldom by the desire to 
reconcile opposing mobilities. The competing goals, 
according to Dean Roscoe Pound, invest the Judge with 
the responsibility "of proving to mankind that the law was 
something fixed and settled, whose authority was beyond 
question, while at the same time enabling it to make 
constant readjustments and occasional radical changes 
under the pressure of infinite and variable human desires". 
The reconciliation suggested by Lord Reid in The Judge 
as Law Maker lies in keeping both objectives in view, 
"that the law shall be certain, and that it shall
be just and 
shall move with the times"." 248 (Internal citations have been 
omitted). 
256. In Gannon Dunkerley & Co. v. State of 
Rajasthan249 the question related to 'the imposition of tax on 
the transfer of property in goods involved in the execution of 
works contracts. The power to impose this tax became 
248 Paragraph 13 
H ,., (1993) 1 sec 364
SUPREME COURT ADVOCATES-ON-RECORD 
781 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
available to the State Legislatures as a result of the 
A 
amendments introduced in the Constitution by the Constitution 
(Forty-sixth Amendment) Act, 1982.' The constitutional validity 
of this Amendment Act had been upheld in Builders' 
Association of India v. Union of India. 250 One of the issues 
raised was whether Builders' Association had been correctly B 
decided or not. This Court did not add to the discourse on the 
subject but concluded, relying upon Khajoor Singh, Keshav 
Mills and Ganga Sugar Corporation that there was no 
occasion to reconsider the decision in Builders' Association. c 
257. Another decision (which is rather interesting) on the 
subject of reconsideration of an earlier decision is Pradeep 
Kumar Biswas v. /ndian Institute of Chemical Biology.251 
The question before this Court was whether the Council for 
Scientific and Industrial Research was 'the State' as 'defined' 
D 
in Article 12 of the Constitution. The answer to this question 
required consideration of an earlier unanimous decision of this 
Court in Sabhajit Tewary v. Union of lndia252 which had stood 
undisturbed for about 25 years. While answering this question, 
this Court did not detail the law on the subject of reconsideration 
E 
of an earlier decision of this Court, but on a consideration of 
,.,. 
the facts (and the law) concluded that Sabhajit Tewary had 
been wrongly decided and was overruled.
This Court referred 
to Magan/a/ Chhagan/al and Raghubir Singh and held: 
"From whichever perspective the facts are considered, 
F 
there can be no doubt that the conclusion reached in 
Sabhajit Tewaty was erroneous ........ 
In the assessment of the facts, the Court had assumed 
certain principles, and sought precedential support from 
G 
decisions which were irrelevant and had "followed a 
groove chased amidst a context which has long since 
250 (1989) 2 sec 645 
251 (2002) 5 SCC 111 (7 Judges Bench) 
252 (1975) 1 SCC 485 (5 Judges Bench) 
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A 
crumbled."253 Had the facts been closely scrutinised in 
the proper perspective, it could have led and can only 
lead to the conclusion that CSIR is a State within the 
meaning of Article 12. 
B 
c 
Should Sabhajit Te wary still stand as an authority even 
on the facts merely because it has stood for 25 years? 
We think not. Parallels may be drawn even on the facts 
leading to an untenable interpretation of Article 12 and a 
consequential denial of the benefits offundamental rights 
to individuals who would otherwise be entitled to them 
and 
"[T]here is nothing in our Constitution which prevents 
us from departing from a previous decision if we are 
convinced of its error and its baneful effect on the 
D 
general interests of the public". 
Since on a re-examination of the question we have come 
to the conclusion that the decision was plainly erroneous, 
it is our duty to say so and not perpetuate our mistake." 
E 
254 (Internal citations have been omitted). 
258. One of the more interesting aspects of Pradeep 
Kumar Biswas is that out of the 7 (seven) learned judges 
constituting the Bench, 5 learned judges overruled the 
unanimous decision of another set of 5 learned judges in 
F Sabhajit Tewary. Two of the learned judges in Pradeep 
Kumar Biswas found that Sabhajit Tewary had been correctly 
decided. In other words, while a total of 7 learned judges took 
a particular view on an issue of fact and law, that view was 
found
to be incorrect by 5 learned judges, whose decision 
G actually holds the field today. Is the weight of numbers irrelevant? 
Is it that only the numbers in a subsequent Bench are what 
253 Sabhajit Tewary was a unanimous decision of 5 learned judges of this 
Court. To conclude that it "sought precedential support from decisions which 
were irrelevant" is, with respect, rather uncharitable. 
H 
254 Paragraph 59 to 61
SUPREME COURT ADVOCATES-ON-RECORD 
783 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
really matters? What would have been the position if only 4 
A 
learned judges in Pradeep Kumar Biswas had decided to 
overrule Sabhajit Tewarywhile the remaining 3 leamed judges 
found no error in that decision? Would a decision rendered 
unanimously by a Bench of 5 learned judges stand overruled 
by the decision of 4 learned judges in a subsequent Bench of B 
7 learned judges? Pradeep Kumar Biswas presents a rather 
anomalous situation Which needs to be addressed by 
appropriate rules of procedure. If this anomaly is perpetuated 
then the unanimous decision of 9 leamed judges in the Third 
Judges case can be overruled (as sought by the learned 
C 
Attorney-General) by 6 leamed judges in a Bench of 11 learned 
judges, with 5 of them taking a different view, bringing the total 
tally of judges having one view to 14 and having another view 
to 6, with the view of the 6 learned judges being taken as the 
D 
law! 
259. Be that as it may, two other decisions of importance 
on the subject of reconsidering a prior decision of this Court 
are Kesavananda Bharati and the Second Judges case. 
260. In Kesavananda Bharati it was pithily stated by E 
Chief Justice S.M. Sikri that the question before the Court was 
whether Golak Nath was correctly decided. The learned Chief 
Justice observed: 
"However, as I see it, the question whether Golak Nath 
F 
. case was rightly decided or not does not matter
because 
the real issue is different and of much greater importance, 
the issue being: what is the extent of the amending power 
conferred by Article 368 of the Constitution, apart from 
Article 13(2), on Parliament ?"255 
G 
.261. It follows from this that where a matter is of 'great 
importance', this Court may refer the issue to a larger Bench 
to reconsider an earlier decision of this Court. 
255 Paragraph 1 O 
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SUPREME COURT REPORTS 
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A 
262. In the Second Judges case it was observed by 
Justice Pandian that an earlier decision rendered by this Court 
may be reconsidered if, amongst others, 'exceptional and 
extraordinarily compelling' circumstances so warrant. It was 
observed that 'no decision enjoys absolute immunity from 
B judicial review or reconsideration on a fresh outlook of the 
constitutional or legal interpretation and in the light of the 
development of innovative ideas, principles and perception 
grown along with the passage of time.' 256 Recalling the 
observations in Magan/a/ Chhaganlal, Raghubir Singh and 
C Pradeep Kumar Biswas it was held that: 
"Therefore, in exceptional and extraordinarily compelling 
circumstances or under new set of conditions, the court 
is on a fresh outlook and in the light of the development 
o 
of innovative ideas, principles and perception grown 
along with the passage of time, obliged by legal and 
moral forces to reconsider its earlier ruling or decision 
and if necessitated even to overrule or reverse the 
mistaken decision by the application of the 'principle of 
E 
retroactive invalidity'. Otherwise even the wrong judicial 
interpretation that the Constitution or law has received 
over decades will be holding the field for ages to come 
without that wrong being corrected. Indeed, no historic 
precedent and long-term practice can supply a rule of 
F 
unalterable decision."257 
263. There is absolutely no
dispute or doubt that this Court 
can reconsider (and set aside) an earlier decision rendered 
by it. But what are the circumstances under which the 
G reconsideration can be sought? This Court has debated and 
discussed the issue on several occasions as mentioned above 
and the broad principles that can be culled out from the various 
decisions suggest that: 
256 Paragraph 17 
H 
257 Paragraph 19
SUPREME COURT ADVOCATES~ON-RECORD 
785 
ASSOCIATION v. U.0.1. [MADAN B. LQKUR, J.] 
(1) If the decision concerns an interpretation of the 
A 
Constitution, perhaps the bar for reconsideration might be 
lowered a bit (as in Kesavananda Bharati). Although the 
remedy of amending the Constitution is available to Parliament, 
not all amendments are easy to carry out. Some amendments 
require following the procedure of ratification by the States. 
B 
Nevertheless, where a constitutional issue is involved, the 
necessity of reconsideration should be shown beyond all 
reasonable doubt, the remedy of amending the Constitution 
always being available to Parliament. 
c 
(2) If the decision concerns the imposition of a tax, then 
too the bar might be lowered a bit since the tax burden would 
affect a large section of the public. However, the general 
principles for requiring reconsideration do not necessarily fall 
by the wayside. 
(3) If the decision concerns the fundamental rights of the 
people, then too the bar might be lowered for obvious reasons. 
However again, the general principles for requiring 
reconsideration must be adhered to. 
(4) In other cases, the Court must be convinced that the 
earlier decision is plainly erroneous and has a baneful effect 
on the public; that it is vague or inconsistent or manifestly 
wrong. 
D 
E 
(5) If the decision only concerns two contending private 
F 
parties or individuals, then perhaps it might not be advisable 
to reconsider it. Each and
every error of law cannot obviously 
be corrected by this Court. 
(6) The power to reconsider is not unrestricted or G 
unlimited, but is confined within narrow limits and must be 
exercised sparingly and under exceptional circumstances for 
clear and compelling reasons. Therefore, merely because a 
view different from or contrary to what has been expressed 
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SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A earlier. is preferable is no reason to reconsider an earlier 
decision. The endeavour of this Court must always be to ensure 
that the law is definite and certain and continuity in the 
interpretation of the law is maintained. 
8 
In this regard, Raghubir Singh presents an interesting 
picture. Section 23(2) of the Land Acquisition Act, 1894 (as 
amended in 1984) was interpreted by this Court on 141h 
February, 1985 in K. Kamalajammanniavaru v. Special 
Land Acquisition Officer. 258 That decision was overruled six 
c months later on 141h August, 1985 in Bhag Singh v. Union 
Territory of Chandigarh. 259 That decision was in turn 
overruled on 161h May, 1989 in Raghubir Singh and the law 
laid in Kamalajammanniavaru was reiterated. It is this 
uncertainly and absence of continuity in the law that is required 
D to be avoided. 
(7) An earlier decision may be reconsidered if a material 
provision of law is overlooked260 or a fundamental assumption 
is found to be erroneous or if there are valid and compulsive 
or compelling reasons or if the issue is of fundamental 
E importance to national life. However, it might not be wise to 
overrule a decision if people have changed their position on 
the basis of the existing law. This is because it might upset the 
legitimate expectation of persons who have made 
F arrangements based on the earlier decision and also because 
the consequences of such a decision might not be foreseeable. 
(8)
Whether a decision has held the field for a long time 
or not is not of much consequence. In Bengal Immunity a 
recent decision delivered by the Constitution Bench was 
G overruled; in Pradeep Kumar Biswas a decision holding the 
field for a quarter of a century was overruled. 
(9) Significantly, this Court has taken note of and 
2" (1985) 1 sec 582 
2'• (1985) 3 sec 737 
H 
260 How is this to be ascertained?
SUPREME COURT ADVOCATES-ON-RECORD 
787 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
approved the view that the changing times might require the 
A 
interpretation of the law to be readjusted keeping in mind the 
'infinite and variable human desires' and changed conditions 
due to 'development with the progress of years.' The 
interpretation of the law, valid for one generation may not 
necessarily be valid for subsequent generations. This is a reality 
B 
that ought to be acknowledged as has been done by this Court 
in Magan/al Chhaganlal and by Chief Justice Dickson of the 
Canadian Supreme Court in The Queen v. Beauregard.261 
Similarly, the social context or 'contemporary social conditions 
or modern conceptions of public policy' cannot be overlooked. 
C 
Oliver Wendell Holmes later a judge of the Supreme Court of 
the United States put it rather pithily when he said that: 'But the 
present has a right to govern itself so far as it can; and it ought 
always to be remembered that histOric continuity with the past D 
is not a duty, it is only a necessity.'262 
264. It is trite that the Constitution is a living document263 . 
261 [1986) 2 SCR 56 wherein it is stated: With respect to the first of these 
arguments, I do not think s.100 [of the Constitution Act. 1867) imposes on 
Parliament the duty to continue to provide judges with precisely the same type of 
• pension they received in 1867. The Canadian Constitution is not locked forever E 
in a 119 year old casket. It lives
and breathes and is capable of growing to keep 
pace with the growth of the country and its people. Accordingly, if the Constitution 
can accommodate, as it has, many subjects unknown in 1867 airplanes, nuclear 
energy, hydroelectric power it is surely not straining s. 100 too much to say that 
the word 'pensions', admittedly understood in one sense in 1867, can today 
support federal legislation based on a different understanding of 'pensions'. 
262 "The law, so far as it depends on learning, is indeed, as it has been called, 
the government of the living by the dead. To a very considerable extent no 
doubt it is inevitable that the living should be so governed. The past gives us 
our vocabulary and fixes the. limits of our imagination; we cannot get away 
from it. There is, too, a peculiar logical pleasure in making manifest the 
continuity between what we are doing and what has been done before. But 
F 
the present has a right to govern itself so far as it can; and it ought always to G 
be remembered that historic continuity with the past is not a duty, it is only a 
necessity." 
"Learning and Science", speech at a dinner of the Harvard Law School 
Association in honor of Professor C. C. Langdell (June 25, 1895); reported 
in Speeches by Oliver Wendell Holmes (1896). p. 67-68 
263 l.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42 
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A 
and it is also wise to remember, in this context, what was said 
B 
c 
in R. C. Poudya/ v. Union of Jndia264 that: 
"In the interpretation of a constitutional document, 'words 
are but the framework of concepts and concepts may 
change more than words themselves'. The significance 
of the change of the concepts themselves is vital and the 
constitutional issues are not solved by a mere appeal to 
the meaning of the words without an acceptance of the 
line of their g"rowth. It is aptly said that 'the intention of a 
Constitution is rather to outline principles than to engrave 
details' ."265 
265. On the oasis of the law as laid down by this Court 
and considering the historical developments over the last six 
decades, it was submitted by the learned Attorney-General 
D that a fundamental and significant question as to the 
interpretation of the Constitution has arisen; that the Second 
Judges case and the Third Judges case did not correctly_ 
appreciate the Constituent Assembly Debates on the Judiciary 
and that the time has now come to make a course correction. 
E 
Conclusions on the preliminary issue 
266. It is quite clear that there is a .distribution of power 
through a system of checks and balances rather than a classical 
separation of power between the Legislature, the Executive 
F and the Judiciary. These three organs of the State are not in a 
silo and therefore there is an occasional overlap - but every 
overlap
does not necessarily lead to a violation of the 
separation of powers theory. 266 
G 
267. There are several examples of this 'overlap' and 
the learned Attorney-General has taken us through the various 
26' 1994 supp (1 J sec 324 
265 -1994 Supp (1) SCC 324 paragraph 124 
266 In his concluding speech, Br. Rajendra Prasad used the expression 
'distribution of powers' and not 'separation of powers'. See: hlliLlf 
H 
parHamentofindja.nic jo/lsldebates/vol11 012.htm
. SUPREME COURT ADVOCATES-ON-RECORD 
789 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
provisions of the Constitution in this regard: Article 124(1) of A 
the Constitution enables Parliament to pass a law prescribing 
the composition of the Supreme Court as consisting of more 
than seven judges. Pursuant to this the Supreme Court 
(Number of Judges) Act, 1956 was passed; Article 124(4) 
provides for the impeachment process for the removal of a 
B 
judge; Article 124(5) enables Parliament to legislate for 
regulating the procedure for the presentation of an address in 
the impeachment process and in the investigation and proof 
of the misbehavior or incapacity of a judge; Article 125(1) 
enables Parliament by law to determine the salary of a judge C 
while Article 125(2) enables Parliament to pass a law with 
regard to the privileges, allowances, etc. of a judge. Pursuant 
to this the Supreme Court Judges (Conditions of Service)Act, 
1958 has been enacted; Article 134(2) enables Parliament to D 
confer on the Supreme Court by legislation, further powers to 
entertain and hear appeals and criminal proceedings. Pursuant 
to this, Parliament has enacted the Supreme Court 
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970; 
Article 135 enables Parliament to make a law with regard to 
E 
the jurisdiction and power of the Supreme Court with respect 
of any matter to which the provisions of Article 133 and Article 
134 do not apply; Article 137 provides that subject to any
law 
made by Parliament the Supreme Court shall have the power 
to review any judgment pronounced or order made by it; Article 
F 
138 enables Parliament by law to enlarge the jurisdiction of 
the Supreme Court with respect to any matter as the 
Government of India and the Government of any State may by 
special agreement confer and Article 139 enables Parliament 
to make a law to issue writs other than those mentioned in 
G 
Article 32 of the Constitution; Article 140 enables Parliament 
to make a law conferring upon the Supreme Court 
supplementary powers; Article 142 enables Parliament to 
make a law for the enforcement of a decree or order of the 
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A 
Supreme Court and the exercise of power by the Supreme 
Court to make any order for the purpose of securing the 
attendance of any person, the discovery or production of any 
documents, or the investigation or punishment of any contempt, 
Article 145 enables Parliaf!lent to make any law for regulating 
B the practice and procedure of Supreme Court while Article 
146(2) enables Parliament to lay down the conditions of 
service of officers and servants of.the Supreme Court. Article 
130 of the Constitution permits the Supreme Court to sit at 
any place other than Delhi with the approval of the President 
C while Article 145 enables the Supreme Court to make rules 
for regulating the practice and procedure of the Court with the 
approval of the President. 
268. There is quite clearly an entire host of parliamentary 
o and legislative checks placed on the judiciary whereby its 
administrative functioning can be and is controlled, but these 
do not necessarily violate the theory of separation of powers 
or infringe the independence of the judiciary as far as decision 
making is concerned. As has been repeatedly held, the theory 
E of separation of powers is not rigidly implemented in our 
Constitution, but if there is an overlap in the form of a check 
with reference to an essential or a basic function or element of 
one organ of State as against another, a constitutional issue 
does arise. It is in this context that the 99 1h
Constitution 
F Amendment Act has to be viewed -whether it impacts on a 
basic or an essential element of the independence of the 
judiciary, namely, its decisional independence. 
269. The learned Attorney-General is not right in his 
G submission that the· Second Judges case overlooked the 
separation of powers and the CAD and incorrectly interpreted 
the provisions of the Constitution particularly Article 124(2) 
thereof. This is a rather narrow understanding of the Second 
Judges case which, amongst others, considered the. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
791 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
interpretation of Article 50 of the Constitution, constitutional A 
history and conventions, the entire spectrum of issues relating 
to the appointment of judges in the context of the independence 
of the judiciary, transparency and sharing of information 
between the constitutional authorities, the primacy of the 
President or the Judiciary in the appointment process B 
(depending on the circumstances), the importance of the 
President in the integrated consultative process derived from 
the debates in the Constituent Assembly and several other 
related aspects. All this involved a pragmatic and workable 
interpretation of the Constitution, which is the task only of the C 
judiciary and there can be no doubt about this. This was pithily 
stated in Marbury v. Madison267 : 'It is emphatically the 
province and duty of the Judicial Department to say what the 
law is.' It was also explicitly held in Re: Powers, Privileges D 
and Immunities of State Legislatures268 where it was said: 
"[W]hether or not there is distinct and rigid separation of 
powers under the Indian Constitution, there is no doubt 
that the Constitution has entrusted to the Judicature in 
this country the task of construing the provisions of the 
E 
Constitution and of safeguarding the fundamental rights 
of the citizens. When a statute is challenged on the ground 
that it has been passed by a legislature without authority, 
or
has otherwise unconstitutionally trespassed on 
fundamental rights, it is for the courts to determine the 
F 
dispute and decide whether the law passed by the 
legislature is valid or not. Just as the legislatures a_re 
conferred legislative authority and their functions are 
normally confined to legislative functions, and the 
functions and authority of the executive lie within the G 
domain of executive authority, so the jurisdiction and 
authority of the Judicature in this country lie within the 
267 5 U.S. (1 Cranch} 137, 177 (1803) 
268 [1965] 1 SCR 413 (Seven Judges Bench) 
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A 
domain of adjudication. If the validity of any law is 
challenged before the courts, it is never suggested that 
the material question as to whether legislative authority 
has been exceeded or fundamental rights have been 
contravened, can be decided by the legislatures 
B 
themselves."269 
270. The learned Attorney-General is also not right in 
reducing the Second Judges case to only one aspect- the 
decision of this Court has to be appreciated as a part of the 
c larger constitutional scheme relating to the independence of 
the judiciary. The learned Attorney-General may or may not 
agree with the interpretation given by this Court to the 
constitutional scheme but that is no indication that the theory 
of the separation of powers has broken down. If there is an 
o interpretation al error, it can be corrected only by the judiciary, 
or by a suitable amendment to the Constitution that does not 
violate its basic structure. 
271. No one thought that this Court, in the Second 
Judges case, had erroneously interpreted or misunderstood 
E the constitutional scheme concerning the appointment of 
judges and the independence of the judiciary. There were some 
problem areas and these were referred to this Court in the 
form of questions raised by the President seeking the advisory 
F opinion of this Court in the Third Judges case. The 
correctness of the decision rendered in the Second Judges 
case was not in doubt and to remove any
misunderstanding in 
this regard the learned Attorney-General categorically stated 
in the Third Judges case that 'the Union of India is not seeking 
G a review or reconsideration of the judgment in the Second 
Judges case.' Therefore, neitherthe President nor the Union 
of India nor anybody else for that matter sought a 
reconsideration of the Second Judges case. There is no 
269 Page 446 
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SUPREME COURT ADVOCATES-ON-RECORD ' 
793 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
reason (apart from an absence of a reason at law) why such a A 
request should be entertained at this stage, except on a fanciful 
· misunderstanding of the law by the Union of India. 
272. The contention of the learned Attorney-General is 
that the appointment of a judge of the Supreme Court or a . 8 
High Court is an executive function and that has been taken 
over by the judiciary by a process of judicial encroachment 
through a 'right to insist' thereby breaking down the separation 
of power theory. It is not possible to accept this line of thought. 
The appointment of a judge is an executive function of the c 
President and it continues to be so. However, the constitutional 
convention established even before Independence has been 
that a judge is appointed only if the Chief Justice of India or 
the Chief Justice of the High Court gives his/her nod to the 
appointment. This position continued even after D 
Independence. Justice Kuldip Singh summarized the 
appointments position in the Second Judges case in the 
following words: 
"(i) The executive had absolute power to appoint the 
Judges under the Government of India Act, 1935. 
E 
Despite that all the appointments made thereunder were 
made with the concurrence of the Chief Justice of India. 
(ii)Aconvention had come to be established by the year 
1948 that appointment of a Judge could only be made F 
with the concurrence of the
Chief Justice of India. 
(iii) All the appointments to the Supreme Court from 1950 
to 1959 were made with the concurrence of the Chief 
Justice of India. 210 out of 211 appointments made to 
the High Courts during that period were also with the G 
concurrence of the Chief Justice of India. 
(iv) Mr Gobind Ballabh Pant, Home Minister of India, 
declared on the floor of the Parliament on November 24, 
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794 
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B 
' SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
1959 that appointment of Judges were virtually being 
made by the Chief Justice of India and the executive was 
only an order-issuing authority. 
(v) Mr Ashoke Sen, the Law Minister reiterated in the 
Parliament on November 25, 1959 that almost all the 
appointments made to the Supreme Court and the High 
Courts were made with the concurrence of the Chief 
Justice of India. 
(iv) Out of 54 7 appointments of Judges made during the 
C 
period January 1, 1983 to April 10, 1993 only 7 were not 
in consonance with the views expressed by the Chief 
Justice of lndia."270 
273. These facts and figures clearly indicate that at least 
0 
since 1935, if not earlier, the appointment of judges was made 
in accordance with the view of the Chief Justice of India or the 
Chief Justice of the High Court as the case may be. There 
were aberrations but these appear to have mainly taken place 
only after Independence, as mentioned above. But even in 
E those cases where there were aberrations pre-1959 (with the 
Chief Justice of the High Court having been by-passed) the 
concurrence of the Chief Justice of India was taken. The 
executive, therefore, never had real primacy in the matter of 
appointment of judges. But, post the First Judges case the 
F executive exerted its newly given absolute primacy in the 
appointment of judges and the aberrations increased. Surely, 
the executive cannottake advantage of the aberrations caused 
at its
instance and then employ them as an argument that no 
constitutional convention existed regarding the concurrence 
G of the Chief Justice of India. On the contrary, the aberrations 
indicate the stealthy attempt of the political executive to sub¥ert 
the independence of the judiciary through appointments that 
were not necessarily merit-based, and the submissions 
H 
210 Paragraph 371.
SUPREME COURT ADVOCATES-ON-RECORD 
795 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
advanced before us suggest that henceforth the independence A 
of the judiciary may not necessarily be sacrosanct. It is for this 
reason that the Bar has fought back to preserve and protect 
the existing conventions and practices and will, hopefully 
maintain its vigil. 
27 4. In The Pocket Veto case271 the US Supreme Court 
referred to a long standing practice as an interpretation to a 
constitutional provision, which would be equally applicable to 
India. It was said: 
B 
"The views which we have expressed as to the C 
construction and effect of the constitutional provision here 
in question are confirmed by the practical construction 
that has been given to it by the Presidents through a long 
course of years, in which Congress has acquiesced. 
Long settled and established practice is a consideration D 
of great weight in a proper interpretation of constitutional 
provisions of this character. Compare Missouri Pac. Ry. 
Co. v. Kansas272 ; Myers v. United States273 ; and State v. 
South Norwalk274 in which the court said that a practice 
of at least twenty years' duration on the part of the 
E 
executive department, acquiesced in by the legislative 
department, while not absolutely binding on the judicial 
department, is entitled to great regard in determining the 
true construction of a constitutional provision the 
F 
phraseology of which is in any respect of doubtful 
meaning." 
275. By
claiming absolute executive primacy, the learned 
Attorney-General is, in effect, propagating the view that the 
President can exercise a veto on the proposal to appoint a G 
judge, even if that proposal has the approval of all other 
271 279 U.S. 655, 689 (1929) 
272 248 U.S. 276 
273 272 U.S. 52 
274 77 Conn. 257 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A constitutional authorities. Such a view was not acceptable to 
Dr. Ambedkar and the Constituent Assembly and it is 
impermissible to introduce it through the back door. The Chief 
Justice of India has no 'right to insist' on an appointment nor 
does the President have the 'right to reject' or a veto. The 
B Constitution postulates a consultative and participatory 
process between the constitutional functionaries for appointing 
the 'best' possible person as a judge of a High Court or the 
Supreme Court. In this consultative process the final word is 
given, by a constitutional convention and practice developed 
C over the years, to the Chief Justice of India since that 
constitutional functionary is b~st equipped to appreciate the 
requirements of effective justice delivery, to maintain the 
independence of the judiciary, to keep at bay external 
0 
influences, 'eliminate political influence even at the stage of 
initial appointment of a Judge'275 and as the head of the 
judiciary, his/her judgment ought to be trusted in this regard. 
That this could be characterized as a 'right to insist' is not at all 
justified, nor can any voice of disagreement by the executive 
E be construed as a 'right to reject' or a veto. These expressions 
do not gel with the constitutional scheme or the responsibilities 
of constitutional functionaries. 
276. What did the Second Judges case and the Third 
Judges case decide that should lead the
political executive 
F to misunderstand the views expressed and misunderstand the 
law interpreted or call for a reconsideration of the law laid 
down? In essence, all that was decided was that the Chief 
Justice of India (in an individual capacity) could not recommend 
a person for appointment as a judge, but must do so in 
G consultation with the other judges (and if necessary with non-
judges ). Such a recommendation of the Chief Justice of India, 
if made unanimously, ought normally to be accepted by the 
President. However, the President can return the 
275 Second Judges case, paragraph 450 
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