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
SUPREME COURT ADVOCATES-ON-RECORD 
1001 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
decisions so that the law remains certain. 36 In exceptional A 
circumstances or under new set of conditions in the light of 
new ideas, earlier view, if considered mistaken, can be 
reversed. While march of law continues and new systems can 
be developed whenever needed, it can be done only if earlier 
systems are considered unworkable37. 
B 
17.4 No such situation has arisen. On settled principles, 
no case for revisiting earlier decisions by larger Benches is 
made out. As regards the contention that there was patent 
error in the earlier decisions, the Second Judges' case shows c 
that the Constituent Assembly Debates are exhaustively quoted 
and considered. Neither the debates nor the text adopted by 
the Constitution show that the power of appointment of Judges 
was intended to be conferred on the Executive or the 
Legislature. The word 'consultation' as interpreted and 
D 
·understood meant that the final word on the subject of 
appointment of Judges was with the CJI. The practice and 
convention ever since the commencement of the Constitution 
showed that proposal for appointment was always initiated by 
the Judiciary and the last word on the subject belonged to the 
E 
CJI. This scheme was consistent with the intention of the 
Constitution makers. All the points now sought to be raised by 
learned Attorney General have been exhaustively considered 
in the Second Judges case. The
contention that earlier 
situation of Executive interference has now changed also does ·F 
not justify reconsideration of the earlier view. If the situation 
has changed, there can be no reason for change of the system 
which is functioning as per the intention of the Constitution 
makers when such change will be contrary to basic structure 
which is not constitutionally permissible. The objection as to G 
deficiencies in the working of the collegium system will be 
subject matter of discussion in the later part of this judgment. 
36 Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28 to 31 
37 2"" Judges' case, Paras 19 to 22 
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Individual failings may never be ruled out in functioning of any 
system. The Judicial Appointment Commissions earlier 
considered were not on the same pattern. Initially proposal to 
set up Judicial Commission was made prior to Second 
Judges case, with the object of doing away with the primacy 
B of the Executive as laid down in First Judges case. In Sixty-
Seventh Amen9ment Bill, in the Statement of Objects and 
Reasons, it is mentioned that the object of setting up of 
Commission was to 'obviate the criticism of arbitrariness on 
the part of the Executive'38. Ninety-Eighth Amendment Bill, 
C 2003 was introduc~d with a different composition on 
recommendation of National Commission to review the 
working of the Constitution. One-Twentieth Amendment Bill, 
2013 did. not provide for any composition and left the 
0 
composition to be provided for by the Parliament. Validity of 
such proposed Commissions was never tested as such 
Commissions never came into existence. 
17 .5 The Judicial Commissions in other countries and 
provisions of Constitutions of other countries conferring power 
E on the Executive to appoint Judges may also not call for 
reconsideration of the Second Judges' case as many of such 
and similar provisions were duly considered in the Second 
Judges' case to which reference will be made. No case is 
thus made out for revisiting the earlier decisions in Second 
F and Third Judges' cases. 
D. Consequential
consideration of issue of primacy 
of iudiciary in appointment of judges as part of 
basic structure. 
G 
18. The earlier decisions in Secot:Jd and Third Judges' 
H 
case have to be taken as binding precedents. Once it is so, 
it has to be held that primacy of the judiciary in appointment of 
judges is part of the basic structure. Appointment of judges is 
38 The Bill was introduced in the light of 121" Report of the Law Commission.
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.O.L [ADARSH KUMAR GOEL, J.] 
part of independence of judiciary. It is also essential to uphold A 
balance of powers between Legislature, Executive and 
Judiciary which by itself is key to the functioning of the entire 
Constitution. The judiciary is entrusted the power to control 
the power of the Executive and the Legislature whenever it is 
alleged that the said organs have exceeded their B 
constitutionally assigned authority. This is the esse,,nce of the 
democracy. Learned counsel for the petitioners highlighted 
that at times exercise of powers of Judicial Review by the 
Constitutional Courts may not be to the liking of the Executive 
or the Legislature. Particular instances have been given of C 
decisions of this Court in 2G Spectrum case39 and Coal Scam 
case4°where actions of the Executive were found to be violative 
of constitutional obligations causing huge loss to public 
exchequer. It was submitted that arbitrary distribution of State D. 
largess by way of giving scarce resources or contracts or jobs 
or positions of importance akin to 'spoil system' have been 
held by this Court to be in violation of the Constitution. Policies 
of the State for arbitrary acquisition of land or in violation of 
environmental laws have been struck down by this Court. 
E 
Dissolution of State Assemblies and dismissal of State 
Governments have also been struck down by this Court41• This 
Court also had to deal with the
issues arising out of decisions 
of Speakers in recognizing or otherwise the defections in 
Central or State Legislatures42• There are enumerable 
F 
instances when the Courts have to deal with validity of 
Legislative or Executive decisions of far reaching nature. It is 
the faith of the people in the impartiality and competence of 
judiciary which sustains democracy. If appointment of judges, 
which is integral to functioning of judiciary is influenced or G 
controlled by the Executive, it will certainly affect impartiality of 
39 Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1 
40 Manohar Lal Sharma vs. UOI (2014) 2 SCC 532 
"S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006) 
2 SCC 1; M.C. Me~ta vs. Kamal Nath (1997) 1 SCC 388 
42 Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651 
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A judges and their functioning. Faith of people in impartiality and 
effectiveness of judiciary in protecting their constitutional rights 
will be eroded. 
18.1 Submissions of learned Attorney General are that 
8 
even if appointment of judges is held to be part of 
independence of judiciary, choice of a particular model is not 
part of basic structure. The role of the Executive cannot be 
denied altogether nor there can be any objection to members 
of civil society being included in the process of appointment. 
C The primacy of judiciary in appointment of judges is not an 
absolutist ideal. Power of appointment has to be seen in the 
light of need for checks and balances. Independence of 
judiciary is not a uni- dimensional test. There could be inter 
mingling of other wings in the process of appointment of judges. 
o After repeal of Articles 124 and 217, basis of Second Judges' 
case did not survive. Primacy of judiciary in appointment of 
judges is only in the context of stopping wrong appointment or 
preventing pre-dominance of the Executive. Even if primacy 
of judiciary was recognized at a given point of time, the same 
E could apply only till the Constitution is amended. Two eminent 
persons could be laymen to give societal view point. The Law 
Minister was made a member of the Commission for 
accountability and transparency. As laid down in l.R. Coelho 
case, inspite of separation of powers, different branches of 
F the
Government could have overlapping functiohs43• In Sahara 
India Real Estate Corpn. Ltd. vs. SEB/44, it was observed 
that under the Constitution there are different values which must 
be balanced. Thus, independence of judiciary, checks and 
balances, democracy and separation of powers are to be 
G considered as a whole. He referred to the background of 
supersession of judges in the year 1973 and 1977 and 
selective transfer of judges during emergency as noted in 121•1 
43 Para 64 
44 (2012) 10 SC 603 
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SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Report of the Law Commission45• The report records that in 
A 
1976, sixteen judges were transferred from the respective High 
Courts in which they were functioning to other High Courts. 
This was perceived to be an act of interference with the 
judiciary. Circular of the then Law Minister providing for transfer 
and short term appointment of judges considered in First B 
Judges' case was taken in the said report as the executive 
interference. The report also mentioned the concern arising 
outofsupersession in appointmentofCJI, non confirmation of 
additional judges, transfer of judges giving rise to c 
apprehension of erosion of independence of judiciary at the 
hands of the Executive. It was concluded that the model then 
prevalent (with the primacy of the Executive) had failed to 
deliver the goods. This led to introduction of 671h Amendment 
Bill, 1990. 
D 
18.2 The contentions of learned Attorney General cannot 
be accepted. The matter having been gone into in great details 
in above binding precedents which do not require 
reconsideration, I do not consider it necessary to repeat in 
detail the discussion which has been recorded in the said 
E 
\ 
decisions. 
18.3 In Second Judges' case, following findings have 
been recordea : 
(i) The word 'consultation' used in Articles 124, 217 and F 
222 of the Constitution meant that the opinion of 
consultee was normally to be accepted
thereby 
according primacy to the judiciary; 
(ii) The Executive being major litigant and role of 
G 
judiciary being to impartially decide disputes 
between citizen and the State, the Executive could 
not have decisive say in appointing judges; 
45 Paras 1.21to1.23, 7.1and7.2 
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(iii) Doctrine of separation of powers under the 
Constitution required primacy of judiciary in 
appointing judges; 
(iv) Since traits of candidates could be better assessed 
by the Chief Justice, the view of the Chief Justice as 
to suitability and merit of the candidate had higher 
weight; 
(v) The Chief Justice of India was not to make a 
recommendation individually but as representing the 
judiciary in the manner laid down, that is, after 
consulting the co/legium; and 
(vi) Primacy of judiciary in appointment of judges is part 
of independence of judiciary and separation of 
powers under the Constitution. 
18.4 Referring to fhe constitutional scheme, its 
background and interpretation, irrespective of the literal 
meaning of the language employed in Articles 214 and 217 of 
the Constitution, it was observed that initiation of proposal must 
E always emanate from the Chief Justice of the High Court/CJ I 
(in representative capacity as laid down) and last word on any 
objection thereto should be normally of the CJl.46 
18.5 Reference was made to the interpretation of the 
F word 'consultation' in the context of appointment of judges in 
earlier judgments in Chandra MoulishwarPrasad vs. Patna 
High Court47, Shamsher Singh and Sankalchand cases. 
It was held that "in practice, the last word in such sensitive 
subject must belong to CJI, the rejection of his advice being 
G ordinarily regarded as prompted by
oblique considerations 
vitiating the order." 
46 Reasons for holding the primacy in appointment of judges to be with the 
judiciary have been summarized by Pandian, J. in Para 195 (Second Judges' 
case) 
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4' 1969 (3) sec 56
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
18.6 Reference was also made to the statement of Dr. 
A 
Ambedkar that it was dangerous to give power to appoint 
judges to the Executive or with concurrence of the Legislature.48 
Further statement that it was dangerous to give veto power to 
CJI was explained to mean that the CJI must act not in individual 
capacity but after consulting senior judges.49 
B 
18. 7 Needless to say that the Constitution of India is 
unique. While reference to other Constitutions can be made 
for certain purposes50, the basic features of Indian Cqnstitution 
(which may be distinctly different from other Constituti:ons) have c 
to be retained and cannot be given a go bye. In the above 
. 
judgment, in the context of working of Indian Constitution, it Q 
was held that the role of Executive and Legislature in 
appointment of judges could not be predominant. Even in the 
Constituent Assembly, models of other countries were not D 
found to be suitable to be followed in lndia51 • 
As already 
mentioned the Government of India appointed First Law 
Commission headed by Shri M.C. Stealvad to review the 
system of judicial administration and all its aspects. The 
Commission expres~ly mentioned that the Executive E 
interference in appointment of Judges has not been congenial 
to independence of judiciary. The Commission noted that the 
Chief Ministers were having direct or indirect hand in 
appointment of Judges
which results in appointments being 
made not on rn.erit but on considerations of community, caste, 
F 
political affiliations. The Chief Minister holding a political office 
is dependent on the goodwill of his party followers. The 
recommendation of the CJI is more likely to be on merit. An 
opinion noted in the report mentions that if the Executive 
48 Para 25(5), Pandian, J. 
49 Para 392, Verma, J. (Second Judges' case) 
50 Such as power of Judicial Review, content of right to life etc. 
51 Paras 184 & 192, Second Jud\Jes' case (In para 192 reference is made to 
famous statement of Dr. Ambedkar about unsuitability of UK and US models 
G 
in this regard) 
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continued to have powerful role, the independence of judiciary 
will disappear and the Courts will be filled with Judges who 
owe from appointments to politicians52• It was recommended 
that the hands of CJI should be strengthened and instead of 
requiring consultation it should require recommendation by the 
B CJl53• There should be requirement of concurrence of the CJl54• 
The Report was discussed in the Parliament and the then 
Home Minister declared that the Executive was only an order 
issuing authority and appointments were virtually being made 
by the CJI. This statement was reiterated by the then Law 
C Minister55• Again in 121 st Report, it was observed that 
appointment of Judges with Executive influence was not 
conducive to healthy growth of judicial review. Trends all over 
the world indicate that power of the Executive in appointment 
0 
of Judges was required to be diluted56• The Second Judges' 
case took care of the ground realities in the light of constitutional 
convention. It held that the CJI was better equipped to select 
the best and for appointments being free from Executive 
domination to inspire public confidence in impartiality and 
E consistent with the principle of separation of Judiciary from 
Executive and also consistent with the spirit of Constitution 
makers. The principle of primacy was recognised and 
appointment of Judges was held to be integral to the 
independence of judiciary57• To check
arbitrary exercise of 
F power by any individual, it was made mandatory that the Chief 
Justices consult senior Judges. Thus, primacy of judiciary was 
recognized in initiating proposal as well as in taking final 
decision58• However, participation of the Executive in giving 
inputs by suggesting names before the proposal was initiated 
G 
52 Para 14 
53 Para19 
54 Para 20 
55 Paras 362-371 (Second Judges' case) 
56 Paras 7.5- 7.11 (121" Law Commission Report) 
57 Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J. 
H 
58 Para 486
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
or giving feedback even after the proposal was initiated was A 
permissible. It was noted that right from beginning of the 
Constitution, all the proposals for appointments were always 
initiated by the Chief Justices59. View in First Judges' case 
that primacy in appointment of Judges was of the Central 
Government was held to be erroneous by larger Bench inter B 
alia for following reasons : 
(i) The judiciary has apolitical commitment and if power 
of appointment of judges is given to the Executive, 
this will affect independence of judiciary6°; 
c 
(ii) Rule of law requires that justice is impartial and people 
have confidence in judiciary being separate and 
independent of the Executive so that it can discharge 
its functions of keeping vigilant watch for protection of 
rights even against the Executive61; 
D 
(iii) Judiciary has key role in working of the democracy 
and for upholding the rule of law62; 
(iv) The constitutional scheme provides for mandatory 
consultation with the CJI since the CJI was better E 
equipped to assess the merit of the candidate which 
consultation was not provided for in respect of other 
high constitutional appointmerits63• 
(v) The appointment of judges was inextricably linked with 
F 
the independence of judiciary and even in the matter 
of appointment of district judges, the conclusive say 
was of the High Courts and not of the Government64• 
59 Para
505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376, Kuldip 
Singh, J. 
60 Paras 84 and 197; Pandian, J; Paras 428 and 439, \(erma, J; Para 334, 
G 
Kuldip Singh, J 
61 Paras 56, 72 to 74 and 207, Pandian, J. 
62 Paras 55 to 57, Pandian, J. 
63 Para 195 Pandian, J and Para 450, Verma, J.; 
64 Paras 447 to 463, Verma, J.; Paras 195 to 197, Pan<lian, J.; Paras 335 and 
380, Kuldip Singh, J. (Para 215, Pandian, J. -Appointments and control of H 
district judges is with the High Courts)
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(vi) Even in countries where power of appointment of 
judges was with the Executive, there is demand/ 
proposal for minimizing the role of the Executive65• 
(vii) The effort of the Executive to have say in appointment 
of judges was found by expert studies to be not 
congenial to the independence of judiciary 66• 
Reference was made to the 14th Report of the Law 
Commission that if the Executive had powerful voice 
in appointment of judges, the independence of 
;·~ 
judiciary will disappear and the courts will be filled with 
judges who owe their appointments to the politicians. 
Reference was also made to 121 st Report of the Law 
Commission to the effect theft even in UK there was 
thinking to create a check on the power of the Executive 
to select and appoint judges. 
(viii) Consultation with the CJ I was not envisaged by the 
Constitution makers to be of formal nature but implied 
that great weight was to be given so that the last word 
belonged to the CJl67• 
(ix) Article 50 and the background of its enactment spells 
out the mandate for appointment of judges being taken 
away from the Executive and its transference to the 
judiciary. 68 
18.8 In the above background, the forceful contention of 
learned Attorney General that the scheme of the Constitution 
did not envisage primacy of judiciary but only mandatory 
consultation with the CJI and optional consideration with such 
G 
65 Para 25(6), Pandian, J.
66 14'h Report of the Law Commission is referred to in paras 64 and 65 by 
Pandian. J.; 121'' Report of Law Commission is referred to in Paras 184 to 
191 and 204, Pandian, J. 
67 Paras 383 to 387. Kuldip Singh. J. (However, CJI was not to be the persona 
designata but as spoke.sman of the judiciary in the manner laid down in the 
judgment.) 
H 
68 Second Judges" case (Paras 74 to 81)
SUPREME COURT ADVOCATES-ON-RECORD 
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f'-SSOCIATION v. U.0.1. {ADARSH KUMAR GOEL, J.] 
other judges as may be considered necessary cannot be . A 
accepted, even if it is so suggested by the literal meaning of 
the words used in the text of the provision. It may be mentioned 
that the word 'consultation', on account of the scheme of the 
Constitution, was held to carry special meaning, on a purposive 
interpretation. The interpretation was not based solely on the 
B 
word 'consultation' but on scheme of independence of judiciary. 
The contention that independence of judiciary was not affected 
even when the Executive made the appointment is contrary to 
the expert studies and well considered decisions of this Court. 
The acknowledged scheme of the Constitution and its working 
C 
is not to allow domination of the Executive in appointment of 
Judges. Such domination affects independence of judiciary, 
public faith in its impartiality (when the Government is major 
litigant), brings in extraneous considerations, compromises D 
merit, weakens·the principles of checks and balances and 
separation of judiciary from the Executive. Thus, by substitution 
of the words, the Parliament could not interfere with the primacy 
of judiciary in appointment of judges and thereby interfer~ with 
the basic feature of the Constitution. It may be mentioned that E 
use of similar expression in Article 7 4 of the Constitution in the 
context of Executiye power of the President to act on "aid.and
advice" of Council of Ministers was held to mean that the 
President was only a formal head. 69 It cannot be suggested 
that by .amendment of the expression used, constitutional 
F 
scheme of the President being formal head can be changed 
as such amendment will be repugnant to the basic structure of 
the Constitution. Likewise, even by amendment primacy of 
judiciary in appointment of judges cannot be excluded. Such 
primacy existed not merely by word 'consultation' but by virtue G 
of role of judiciary in working of the Constitution, by CJI being 
bette·r suited to assess merit of the candidate and on account 
of Executive being major litigant. There is no change in these 
69 Paras 48 and 57-, Shamsher Singh case 
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A factors even after amendment. It is not thus a question of 
change of model or of available choice with the Parliament. 
Plea of presumption of constitutionality can be of no avail where 
an established basic feature of the Constitution is sought to 
be damaged. Similarly, the plea that Parliament is best 
B equipped to assess the needs of the people is not enough 
reason to extend the power of Parliament to amend the basic 
feature of the Constitution. The change of time does not justify 
greater role for the Executive in appointment of judges. The 
plea of overlapping role of different Departments of the 
C Government is against the basic structure as far as appointment 
of judges is concerned. 
18.9 While it is true that the Legislature can even 
retrospectively clarify its intention and thereby bring about a 
o change in law70, in the present context meaning of the 
unamended provision was not based merely ori the words used 
but also the entire scheme of the Constitution particularly the 
independence of judiciary. It has been held that in the context 
of the Indian Constitution, having regard to the consistent past 
E practice and to avoid political interference in appointment of 
judges, and also on account of the CJl/CJ being better 
equipped to assess the merit of a candidate, proposal must 
always be initiated by the CJl/CJ and the CJI must also have 
final word on the subject. It can hardly be doubted that the 
F
Constitution is a dynamic document and has to be interpreted 
to meet the felt needs of times and cannot bind all future 
generations. At the same time, it is also now well settled that 
the amending power is limited to non essential/non basic 
features and does not extend to altering the basic features 
G and framework of the Constitution. Primacy of judiciary is 
certainly a part of the basic feature of the Constitution. If 
primacy of judiciary in the appointment of judges is held to be 
70 Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality, 1969 (2) SCC 
H 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
not a part of basic feature, the Parliament may be free to confer A 
the said power on the Executive or the Legislature or to any 
other authority which can certainly compromise the 
independence of judiciary. It will also in turn disturb the doctrine 
ofseparation of powers and other basic features like rule of 
law, democracy and federalism and working of the Constitution 
B 
as a whole. Independence of judiciary is key element in the 
entire functioning of the Constitution and such independence 
is integrally linked with the appointment of judges free from 
Executive interference. The alternative submission of Shri 
Venugopal, learned senior counsel appearing for the State of C 
Madhya Pradesh in Pafas 4 and 8 (reproduced in para 13 
above) also supports the conclusion that appointment of 
judges is part of independence of judiciary and primacy of 
judiciary in appointment of judges is required to be retained. 
D 
The power of appointment of judges cannot be exercised by 
the Executive as the same will affect independence of judiciary. 
Even after the original provisions are amended, this principle 
is still applicable. 
18.10 At this stage, it may be mentioned that any E 
perceived shortcoming in the working of existing mechanism 
of appointment of judges cannot by itself justify alteration or 
damage of the existing scheme once it is held to be part of 
basic feature. As Dr. Ambedkar
observed 71 :-
F 
"The Constitution can provide only the organs of State 
such as the Legislature, the Executive and the Judiciary. 
The factors on which the working of those organs of the 
State depend are the people and the political parties 
they will set up as their instruments to carry out their G 
wishes and their politics." 
71 
In speech dated 25.11.1949 on conclusion of proceedings of the 
Constituent Assembly (Page 975 of the CAD). 
*In his speech as President of the Constituent Assembly quoted in Para 429 
of the Second Judges' case) 
· 
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To the same effect Dr. Rajendra Prasad* said :-
"If the people who are elected are capable and men o( 
charactefand integrity, they would be able to make the 
best even of a defective Constitution. If they are lacking 
in these, the Constitution cannot help the country. After 
all, a Constitution like a machine is a lifeless thing. It 
acquires life because of the men who control it and 
operate it, and India needs today nothing more than a 
set of honest men who will have the interest of the 
country before them." 
Even a good system may haye shortcomings in its 
working on account of individual failures. It may be mentioned 
that criticism of working may be leveled against working of 
every organ of the Constitution including the Executive and 
D the Legislature and while all efforts must be continuously made 
to bring about improvement in every sphere, the basic scheme 
set up by the Constitution cannot be given a go bye on that 
ground. It is not necessary to comment upon how good or bad 
any constitutional authorities have performed in discharge of 
E their duties or how good or bad the judiciary has performed, 
as the limited question for consideration of the Court is to 
identify and retain the basic structure of the Constitution in 
appointment of judges. The improvement in working of existing 
F system of appointment of judges can be the subject matter of 
separate consideration which is being proposed but
certainly 
without giving a go bye to the basic features of the Constitution 
of independence of judiciary. In Manoj Narula vs. Union of 
Jndia 72, question considered was how persons with criminal 
G antecedents could be prevented from being appointed as 
Ministers. There was also reference to the concern as to how 
persons with such antecedents could be prevented from being 
legislators. This Court held that the issue has to be dealt with 
by those to whom the Constit.ution has entrusted the 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
responsibility and this Court could only enforce the constitutional A 
scheme. 
18.11 At this stage, it may be mentioned that the claim 
of learned Attorney General that the Parliament represented 
the will of the people or that the amendment represented the 8 
will of the people and interference therewith will be undesirable 
is contrary to the law laid down in Kesavananda Bharti case 
(supra)73• The will of the people is the Constitution while the 
Parliament represents the will of the majority at a given point 
of time which is subordinate to the Constitution, that is, the will c 
of the people. The Constitution was supreme and even 
Parliament has no unlimited amending power. Learned 
Attorney General rightly submitted that the last word on the 
validity of a constitutional amendment is of this Court. Even if 
the judiciary is not an elected body, it discharges the o 
constitutional functions as per the will of the people'reflected 
in the Constitution and the task of determining the powers of 
various constitutional organs is entrusted to the judiciary74• 
Conclusion: 
18.12 Accordingly, I hold that primacy of judiciary and 
limited role of the Executive in appointment of judges is part of 
the basic structure of the Constitution. The primacy of judiciary 
is in initiating a proposal and finalising the same. The CJI has 
E 
the last word in the matter. The Executive is at liberty to
give 
F 
suggestions prior to initiation of proposal and to give feedback 
on character and antecedents of the candidates proposed and 
object to the appointment for disclosed reasons as held in 
Second and Third Judges' cases. 
E. Whether the Impugned Amendment alters or G 
damages the basic structure 
19. In the above background, the only question which 
73 Paras 652 amd 653 
74 Paras 328 and 334, Kuldip Singh, J. (Second Judges' case) 
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remains to be considered is whether under the impugned 
amendment the basic feature of primacy of judiciary in 
appointment of judges has been altered or damaged. 
19.1 Learned Attorney General submitted that basic 
8 
structure comprises many features like several pillars in a 
foundation, some of which are enumerated in opinions 
rendered in Kesavananda Bharti case. In judging the validity 
of a constitutional amendment, test is whether the amendment 
would lead to collapse of the Constitution. Merely affecting or 
c impinging upon an Article embodying a feature that is part of 
the basic structure was not sufficient to declare an amendment 
unconstitutional. Violation of basic structure of the constitution 
must be such that the structure itself would collapse. He also 
relied upon the observations in Bhim Singh Ji vs. Union of 
o /ndia75 particularly the following observations : 
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F 
G 
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"Therefore, what is a betrayal of the basic feature is not 
a mere violation of Article 14 but a shocking, 
unconscionable or unscrupulous travesty of the 
quintessence of equal justice. If a legislation does go 
that far it shakes the democratic foundation and must 
suffer the death penalty. But to permit the Bharatifl. ghost 
to haunt the corridors of the court brandishing fatal writs 
for every feature of inequality is judicial paralysation of 
parliamentary function. Nor can the constitutional 
fascination for the basic structure
doctrine be made a 
· trojan horse to penetrate the entire legislative camp 
fighting for a new social order and to overpower the battle 
for abolition of basic poverty by the 'basic structure' 
missile." 
and following observations in Ashoka Kumar Thakur 
vs. Union of/ndia76:-
,. (1981) 1 sec 166 
" (2008 J 6 sec 1
SUPREME COURT ADVOCATES-ON-RECORD 
1017 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
"There are large number of provisions in the A 
Constitution dealing with the federal character of the 
Constitution. If any one of the provisions is altered or 
modified, that does not amount to the alteration of the 
basic structure of the Constitution. Various fundamental 
rights are given in the Constitution dealing with various 
B 
aspects of human life. The Constitution itself sets out 
principles for an expanding future -and is obligated to 
endure for future ages to come and consequently it has 
to be adapted to the various changes that may take 
place in human affairs." 
C 
19.2. Applying the above 1ests it was submitted that the 
Ninety-Ninth Amendment was consonant with and strengthens 
the independence of judiciary while upholding the democracy, 
rule of law and checks and balances. NJAC is in sync with the D 
needs of time and is modelled on checks and balances to 
ensure a democratic process with plurality of views. NJAC 
dilutes power of executive in favour of the judiciary. He 
submitted that identity test was required to be applied which 
means that after the amendment the amended Constitution 
E 
loses the identity of the original Constitution. There is no bar 
to making changes and to adopt the Constitution to the 
requirements of changing times without touching the foundation 
or altering the basic constitutional pattern. He further relied 
upon the observations in the
Indira Gandhi and Minerva Mills F 
Ltd. cases (supra). 
19.3 The learned Attorney General further submitted that 
the object of the amendment is to broad base the collegiate 
body so as to provide for participatory and collective role to G 
the judiciary, the executive and the civil society. The executive 
has only one member, the Law Minister. The object of having 
the Law Minister is to provide information about the candidates 
which information the other members may not have. The 
H
1018 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A eminent persons will be independently appointed by a 
committee comprising of the PM, the CJI and the Leader of 
Opposition. In this way there is no abrogation of independence 
of judiciary. Moreover, three of the six members are from the 
judiciary and thus, the right to reject was available to the judges, 
B while the executive alone cannot exercise the right to reject. 
Even in Second Judges' case it is observed that the process 
of appointment is a participatory process. An area relating to 
suitability of candidates such as his antecedents and personal 
character may be better known to consultees other than the 
C CJI. The expression, 'eminent person' is well known and it 
means distinguished in charact~r or attainments or by success 
in any walk of life. The expression 'distinguished' is used in 
Article 124 (3) providing for eligibility criteria for judges of the 
0 
Supreme Court. Since the high powered committee 
comprising three high functionaries is to appoint an eminent 
person, there is sufficient safeguard against any uncanalised 
power. The principles of constitutional trust apply to the high 
powered committee which can be trusted to select the most 
E appropriate persons. Such eminent persons shall provide 
inputs for the· qualities which make a person suitable for 
appointment as a judge. Diversity in composition of the 
Commission will mitigate the danger of cloning. In other bodies 
also there are
provisions for non judges. For example, 
F Consumer Protection Act. Reservation in favour of minorities, 
women, Scheduled Castes, Scheduled Tribes and OBC will 
have the effect of sensitizing other members for the problems 
to be faced by these sections. Even in the report of National 
Commission to Review the Working of the Constitution 
G (NCRWC), also known as Venkatachalliah Commission, a 
provision for an eminent person was made without prescribing 
any criteria. The eminent person will be guided by the CJI, 
who will be the Chairman and best placed to access the legal 
merit of the candidates. The executive is a key stake holder in 
H
SUPREME COURT ADVOCATES-ON-RECORD 
1019 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
justice delivery system for which it is accountable to the A 
Parliament and it cannot be denied role in appointment of 
judges. Mere possibility of abuse of provision cannot be a 
ground for holding a provision unreasonable. Reliance has 
been placed on Mafat Lal Industries Ltd. vs. Union of lndia77 
which reads as under:-
B 
"To the same effect are the observations by Khanna, J. 
in Kesavananda Bharati v. State of Kera/a (SCR at p. 
755 : SCC p. 669). The learned Judge said: (SCC p. 
821, para 1535) 
c 
"In exercising the power of judicial review, the Courts 
cannot be oblivious of the practical needs of the 
government. The door has to be left open for trial and 
error. Constitutional law like other mortal contrivances 
has to take some chances. Opportunity must be allowed D 
for vindicating reasonable belief by experience." 
To the same effect are the observations in T.N. 
Education Deptt. Ministerial and General Subordinate 
Services Assn. v. State of TN. [(1980) 3 SCC 97] (SCR E 
at p. 1031) (Krishna Iyer, J.). It is equally well-settled 
that mere possibility of abuse of a provision by those in 
charge of administering it cannot be a ground for holding 
the provision procedurally or substantively 
unreasonable. In Collector of Customs v. Nathe/la 
F 
Sampathu Chetty [ 1962 (3) SCR 786], this Court 
observed: ''The possibility of abuse of a statute otherwise 
valid does not impart
to it any element of invalidity." It 
was said in State of Rajasthan v. Union of India [(1977) 
3 SCC 592] (SCR at p. 77), "it must be remembered G 
that merely because power may sometimes be abused, 
it is no ground for denying the existence of power. The 
wisdom of man has not yet been able to conceive of a 
11 (1997) 5 sec 536 
H
1020 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
government with power sufficient to answer all its 
legitimate needs and at the same time incapable of 
mischief'. (Also see Commr., H.R.E. v. Sri Lakshmindra 
Thirtha Swamiarof Sri Shirur Mutt [ (1954) SCR 1005] 
(SCR at p. 1030)." 
Transparency and accountability in the matter of 
appointment are essential for public confidence in the judiciary. 
In this connection reference has been made to lnderpreet 
Singh Kah/on vs. State of Punjab78 which reads as under :-
"This unfortunate episode teaches us an important 
lesson that before appointing the constitutional 
authorities, there should be a thorough and meticulous 
inquiry and scrutiny regarding their antecedents. 
Integrity and merit have to be properly considered and 
evaluated in the appointments to such high positions. 
It is an urgent need of the hour that in such 
appointments absolute transparency is required to be 
maintained and demonstrated. The impact of the deeds 
and misdeeds of the constitutional authorities (who are 
highly placed), affect a very large number of people for 
a very long time, therefore, it is absolutely imperative 
that only people of high integrity, merit, rectitude and 
honesty are appointed to these constitutional positions." 
19.4 These submissions cannot be accepted. It is 
obvious that pre-dominant role of the judiciary, as it exists in 
light of original Constitutional scheme in taking a final decision 
on the issue of
appointment of judges of the Supreme Court 
and appointment and transfer of judges of the High Courts, 
G has been given a go bye. Under the unamended scheme of 
appointment of judges, which is a basic feature of the 
Constitution, the President is to make appointment, after 
consultation with the CJI representing the judiciary. 
1• (2006) 11 sec 356 
H
SUPREME COURT ADVOCATES-ON-RECORD 
1021 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Disregarding the views of the CJI is permissible in exceptional A 
situations for recorded reasons having bearing on character 
and antecedents of a candidate and if such reasons are found 
to be acceptable to the CJJ. Under the amended scheme, no 
such final view can be taken by the CJI. Without giving any 
reason, the Minister or the nominated members can reject the 
B 
unanimous view of the judges. Chief Justice of the High Court 
is not a member of the Commission and has no Constitutional 
role in appointment/transfer of the judges of the High Courts. 
Mere fact that without the judges, the Minister and the 
nominated members cannot make an appointment is not at C 
par with the situation where a decision itself is taken by the 
CJI representing the judiciary. The Constitutional power of the 
Chief Justice of the High Court to initiate proposal for 
appointment as judge of the High Court has been done away D 
with, at least as far as the Constitutional provisions are 
concerned. 
19.5 The contention that the amendment strengthens the 
independence of judiciary or the democracy or brings about 
transparency or accountability is not shown to be based on 
E 
any logic beyond the words. Even if in appointing two eminent 
members CJI is also a member of-the Committee, the fact 
remains that the PM and the Leader of the Opposition have 
significant role in appointing such members, who will
have 
power not only equal to the CJI and two senior most judges of F 
the Supreme Court in making appointment of judges of the 
Supreme Court and appointment/transfer of judges of the High 
Courts but also right to reject the unanimous proposal of the 
CJI and the two senior most judges. Such composition of the 
Commission cannot be held to be conducive to the G 
independence of judiciary. Appointment of judges of the 
Supreme Court and appointment/transfer of judges of the High 
Courts, can certainly be influenced to a great extent by the 
Law Minister and two nominated members, thereby affecting H
1022 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A the independence of judiciary. 
19.6 Contention of learned Attorney General that there 
is a presumption that the Law Minister and the nominated 
members will conduct themselves in.dependently and will make 
8 
value addition in selecting the judges in a better way cannot 
be accepted. The views of the Constitution makers and 
eminent expert committees clearly show that role of the 
Executive in appointment of judges has to be minimum and by 
and large limited to check the character and antecedents of 
C the candidates and not to finally assess the merit and suitability 
of such candidates. In this view of the matter, even if the 
contention that no guideline was required for criteria for 
appointment of eminent persons when the Committee will be 
comprised of high dignitaries is accepted the fact remains 
o that such persons will play not merely supporting but pre-
dominant role in appointing Supreme Court and High Court 
judges which will not be congenial to the independence of 
judiciary. There is no justification for reservation for one of the 
nominated members being from specified categories. Such 
E provision is against the scheme of the Constitution and contrary 
to the object of selecting judges purely by merit. The nature of 
appointment does not justify any affirmative action for 
advancement of any socially and educationally backward 
classes or for the Scheduled Castes or Scheduled Tribes or 
F women. The
appointment of judges has to be on evaluation of 
merits and suitability of the candidates. Religion, caste or sex 
of the evaluator has no relevance. The plea that the Law 
Minister and the nominated members will provide feed back 
also does not provide any justification for their being members 
G of the Commission and thereby participating in evaluation and 
suitability of a candidate for appointment as judge of the 
Supreme Court or High Courts and having power to overrule 
unanimous view of judges. The appointment of a judge of the 
H Supreme Court is normally made out of Chief Justices of High
SUPREME COURT ADVOCATES-ON-RECORD 
1023 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Courts or senior judges or eminent lawyers or eminent jurists ·A 
whose merit is better known to senior judges. Their evaluation 
has to be impartial and free from any political or other 
considerations. Persons making selection are required to be 
best placed to assess their merit and suitability. Pre-dominant 
and de_cisive role of the judiciary is a requirement not only of B 
independence of judiciary and separation of powers but also 
for inspiring confidence of the people at large necessary for 
strength of the Democracy. The citizens having a grievance of 
violation of their fundamental and legal rights against the 
Executive or the Legislature expect that their grievance is 
C 
considered by persons whose appointments are not influenced 
by the Executive or the Legislature. If an appointment is 
perceived as being influenced by political consideration orany 
other extraneous influence, faith in impartiality, which is hall 
D 
mark of independence of judiciary, will be eroded. The scheme 
in other countries cannot be mechanically followed when it is 
in conflict with the basic scheme of the Indian Constitution. 
19.7 In this regard, it may be recalled that the word 
amendment literally means betterment or improvement and 
E 
sponsor of amendment may always claim improvement. Such 
claim has to be tested by applying the 'identity test' and the 
'impact test'. The said tests have
already been mentioned in 
the earlier part of its opinion. The amendment should not affect 
the identity of an essential feature of the Constitution. The 
F 
impact of the amendment on the working of the scheme of the 
Constitution has to be taken into account79• This brings to some 
extent subjective element which is unavoidable even while 
testing any legislation which is alleged to be violative of 
fundamental rights and justified on the concept of 'reasonable G 
restrictions'80• In.this regard, effect of Executive interference 
79 Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOJ (1978) 1 
SCC 248- Para 19; LR. Coelho case - Para 149 
80 V.G. Row vs. State of Madras (1952) SCR 597 
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1024 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
. A 
which has been documented by expert studies cannot be held 
to be irrelevant or ignored on the ground that this is a subject 
of wisdom of Parliament. As already mentioned, the working 
of the Judiciary has affected the Executive and Legislature on 
several occasions, including (by way of illustration) Privy 
B Purses case81, Bank Nationalisation Case82, Freed<;>m of 
Press case83, Kesavananda Bharati case (supra), Indira 
Gandhi case (supra), Minerva Mills case (supra), L. 
Chandrakumar case (supra), M. Nagaraj case (supra), l.R. 
Coelho case (supra), S.R. Bommai case84• 
c 
19.8 The new structure provides for decisive voice with 
the Commission which apart from judges comprises of Law 
Minister and two eminent persons to be nominated by a 
specified committee. Before examining the said structure, it 
o may be noted that it is not merely the text of the amendment 
but also its impact and potential which has to be kept in mind 
on 'identity' of the original scheme and the 'width' of the power 
under the new scheme85• In a similar context when an alternative 
judicial forum was sought to be created to deal with the 
E 
company matters in place of High Courts, this Court held that 
the concept of rule of law required that the new mechanism 
should, as nearly as possible, have same standards86• Same 
view was taken in the context of setting up of National Tax 
Tribunals to substitute the jurisdiction of the High Courts in tax
F 
matters87• The new scheme may iron out the creases but the 
mechanism should be comparable to the substituted scheme. 
19.9 As already mentioned under the unamended 
scheme, as authoritatively interpreted by this Court, power of 
G 
81 Madhav Rao Jivaji Rao Scindia vs. UOI [1971 (1) SCC 85], 
82 Rustom Cavasjee Cooper vs. Union of India [1970 (1) SCC 248] 
83 Bennett Coleman & Co. Ltd. vs. Union of India [1972 (2) SCC 788] 
84 S.R. Bommai vs. UOI [(1994) 3 SCC 1] 
. 
85 Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOI (1978) 1 
SCC 248 - Para 19; l.R. Coelho case - Para 149 
86 Union of India vs. Madras Bar Asson. (2010) 11 SCC 1 - Para 108 
H 
87 Madras Bar Asson. vs. UOI (2014) 10 SCC 1 - Pars 136 and 137
SUPREME COURT ADVOCATES-ON-RECORD 
1025 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
initiating a proposal was always with the judiciary. At the time A 
of making of the Constitution, the draft of the Constitution was 
circulated to the Federal Court and High Courts to elicit views 
of the judges. In the memorandum representing the views of 
the judges, it was mentioned that the existing convention was 
that appointment of judges was made after referring the matter B 
to the Chief Justice and obtaining his concurrence88. 
19.10 In CAD, various models were considered but the 
system applicable in other countries providing for final say of 
the Executive or concurrence of Legislature (as in UK and USA) c 
were found to be unsuitable. It was stated by Dr. Ambedkar 
that the power could not be left to be exercised on the advice 
of the Executive or be made subject to concurrence of the 
Legislature. It was further stated that the Chief Justice could 
also not be given a veto upon the appointment of judges89• 
D 
The Law Commission in its 141h Report criticised the 
interference by the Executive in appointment of judges. The 
matter came up for discussion before the Parliament and the 
Home Minister and the Law Minister made a statement that all 
appointments were made on the recommendation of the CJI 
E 
as the CJI was familiar with the merits of the candidates. Out 
of 211, 210 appointments were made with the consent and 
concurrence of the CJl90• It was noted that the
procedure for 
appointment of judges applicable prior to Second Judge's 
case was that a proposal for appointment was initiated by the 
F 
CJI in case of the Supreme Court and by Chief Justice of the 
High Court in case of the High Court Judges91 • This mechanism 
was held to be a part of the convention 92• 
19.11 In Shamsher Singh case (supra) this Court G 
86 Second Judges' case - Paras 360 and 361 
89 Statement of Dr. Ambedkar referred in Para 192 in Second Judges' case 
90 Debates reproduced in Paras 362 - 368 in Second Judges' case 
91 Para 98 Se.cond Judges' case 
92 Para 370, Kuldip Singh, J. and Para 505, Punchhi, J. in Second Judges' 
case 
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1026 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
observed that in practice the last word in matters of judiciary 
must belong to the CJI. The same view was expressed in 
Sankalchand case (supra) in the context of transfer of 
judges93 • In 801h Report of the Law Commission headed by 
Justice H.R. Khanna, J. (1979), a Commission was proposed 
B with a pre-dominant voice of judiciary to deal with the 
appointment and transfer of judges. The Report was significant . 
in the background of supersession of judges in appointment 
of the CJ I and selective transfer of judges which were perceived 
to be interference with the independence of judiciary. However, 
C contrary to the said recommendations, a circular was issued 
by the Law Minister in 1981 proposing transfer of judges and 
making appointment of judges for short period which itself was 
perceived to be interference with the independence of judiciary 
0 
and was challenged in First Judges' case. As already 
mentioned, the majority held that primacy in such matters rested 
with the Central Government94 • The said view was subject 
matter of severe criticism. Eminent constitutional expert 
Seervai commented that the Executive was not qualified to 
E assess the merits or demerits of a candidate. Initiation of a 
proposal by the Executive was against the intention of the 
framers of the Constitution. Political, Executive or Legislative 
pressure should not enter into the appointment of a judge95• 
The Law Commission headed by
Justice D.A. Desai in its 
F 
121•1 Report also criticised the system where the Executive 
had overriding powers in the matter of appointment of judges. 
He stated that power to appoint and transfer judges of superior 
courts by the Executive affects independence of judiciary and 
is not conducive to its healthy growth. He recommended a 
G Judicial Commission to check the arbitrariness on the part of 
the Executive in such appointments and transfers96• 
93 Paras 39, 41 Chandrachud, J.; 50-52 Bhagwati, J.; 103, 115 Krishna Iyer, J., 
94 Para 30 - First Judges' case 
95 Seervai, 41h Edition, Constitutional Law of India - Paras 25.350, 25.353 and 
25.354 
H 
96 Para 7 .5 and 7 .8 - 121" Report of the Law Commission
SUPREME COURT ADVOCATES-ON-RECORD 
1027 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
19.12 The interpretation in the Second Judge's case A 
was in the above historical background. In the context of 
working of the Indian Constitution, the dominant role of the 
Executive in appointment of judges adversely affected the 
independence of judiciary. The judiciary is assigned important 
role for upholding the rule of law and democracy. Its 
B 
independence and its power of judicial review are part of basic 
structure. Primacy of judiciary in appointment of judges is part 
of basic structure. In this background question is whether the 
new scheme retains the said primacy of judiciary in 
appointment of judges. 
C 
19.13 Under the new scheme, the Law Minister has been 
given role equal to the CJI. Right from the commencement of 
the Constitution, this role of the Law Minister was never 
envisaged while initiating the process and finalizing it. Law D 
Minister, in participatory scheme, could at best suggest a name 
or give his comments on the names proposed but the proposal 
could and was always initiated by the CJI. At the stage of 
initiation, if equal authority is conferred, this will erode the 
primacy of judiciary as declared by this Court authoritatively. 
E 
Any deviation in the past was always adversely commented 
upon and held to be undesirable amounting to interference 
with the independence of judiciary97• Other two persons to be 
nominated by a Committee which also has
predominant 
political voice to be placed at par with the CJI in initiating and 
F 
finalizing a proposal destroys the original scheme beyond its 
identity. Any suggestion before initiation of a name or feedback 
even after initiation may be useful and may not affect 
independence of judiciary but equal participation by the Law 
Minister and two outsiders in final decision for initiation or G 
appointment can be detrimental to the independence of 
judiciary. It cannot be wished away by presuming that the Law 
Minister and the two distributors will not be influenced by any 
97 Para 505, Punchhi, J.; Paras 210,214, Pandian. J.; Paras 361 to 376, 
Kuldip Singh, J. in Second Judges' case 
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1028 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
extrameous consideration. Such a presumption will be contrary 
to the acknowledged factual experience. It will also be against 
the concept of separation of jt 1diciary from the Executive. More 
over this will be contrary to the basic intention of the Constitution 
makers. The amendment is not an insignificant amendment 
B and is not within the basic framework of the working of the 
Constitution. The very premise and object of the amendment 
as reflected in the Statement of Objects and Reasons and the 
stand of the Union of India in its pleadings and during the course 
of arguments is that the primacy of judiciary was evolved by 
C 
erroneous interpretation which is sought to be corrected. It is 
stated that the primacy of judiciary was undemocratic and 
denied the Executive a meaningful role. These reasons are 
untenable for reasons already discussed. As regards the plea 
0 
of transparency and accountability, the same has to be 
achieved without compromising independence of judiciary. If 
on the perceived plea of transparency and accountability, the 
independence of judiciary is sought to be adversely affected 
by the Amendment, this will cause severe damage to the 
E functioning of the Constitution. The primacy of judiciary, as 
already noticed, is integral to the independence of judiciary, 
separation of powers, federalism and democracy, rule of law 
and supremacy of the Constitution. The amendment does away 
with the
primacy of even unanimous opinion of the judicial 
F 
members as such opinion is not enough to finalise an 
appointment. While Shri Venugopal has rightly stated in his 
alternative submission that primacy of judiciary is part of judicial 
independence and if Executive has pre-dominant voice, it could 
subvert independence of-judiciary, his submission that the 
G situation could be retrieved by giving the suggested 
interpretation cannot be accepted. Such interpretation is not 
warranted by the text of the amendment or by the principles of 
interpretation. It is difficult to hold that primacy of judiciary is 
still retained as a wrong proposal can still be stalled by any 
H
SUPREME COURT ADVOCATES-ON-RECORD 
1029 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
two members, including two judges. The primacy of judiciary A 
as always understood in binding judicial precedents comprises 
of initiation of name and taking a final call 98• These two core 
features constitute identity of the primacy of judiciary. Subject 
to these two features, any amendment could have been made 
and if these two features are compromised, the basic identity B 
of the Constitution can be held to have been altered or 
damaged. 
19.14 There can be no doubt about the propositions 
forcefully canvassed by the respondents that the legislative c 
wisdom of the choice of the Parliament was not open to 
question and that possibility of abuse of power could not affect 
the existence and exercise of power but these submissions 
cannot ignore the limitation of basic features. Examining 
whether basic feature was sought to be altered, is different D 
from questioning the wisdom of the Parliament. It is testing 
the power of Parliament conferred by the Constitution. Similarly 
determining whether the new mechanism complied with the 
framework of the Constifution is different from the issue of 
possibility of abuse. In the present case, question is of E 
independence of judiciary which implies having judges not 
influenced by any political consideration as per the intention 
of framers of the Constitution. Even assuming the best of 
intention, can the power of judicial review by the
constitutional 
courts be subjected to scrutiny by any 'eminent persons' on 
F 
the ground that working of the judiciary was perceived to be 
unsatisfactory. Obviously it will be clear interference with 
independence of judiciary99• Same way, constitutionally 
conferred judicial primacy in appointment of judges cannot be 
whittled down or sought to be controlled by those who are not G 
given or allowed to take over such functions. Even granting 
98 Paras 471, 478, 486(2), 486 (3), 486(4 and 5) , Verma, J. 
99 By way of illustration : P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]; 
. Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of India vs. Madras 
Bar Asson. (2010) 11 sec 1; Madras Bar Asson. VS. UOI (2014) 10 sec 1 
H
1030 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
the best of intentions, the Parliament could not act beyond the 
authority conferred on it by the Constitution. Thus, taking away 
primacy of judiciary or conferring such primacy on a body which 
is not at par with the said concept is certainly not a choice 
available with the Parliament. As already mentioned, the 
B concept of primacy of judiciary comprises of initiating the 
proposal and taking a final decision in case any adverse feed 
back is received after the proposal is initiated. This concept 
of primacy is compromised if the judiciary is unable to initiate 
a proposal in the first instance or if such proposal can be 
C effectively rejected. The impact thereof being that the 
appointment of judges could be made under the influence of 
the Executive represented by the Law Minister or the non-judge 
members in whose appointment the pre-dominant voice is not 
0 
of the judiciary. The impact of such appointments will be that 
the judges appointed will owe their appointments to the 
Executive which may be destructive of the public confidence 
and impartiality of judiciary and adversely affect the role of the 
judiciary as an important impartial ·constitutional organ. As 
E already noted, the role of the judiciary is to define and regulate 
working of other constitutional authorities within the scope of 
roles assigned to them 100• 
19.15 If the amendment had merely provided for advisory 
or recommendatory role to the Law
Minister or the non-judicial 
F 
members with the professed object of transparency and 
accountability, the situation may have been different. It may 
not have, in that case, interfered with the primacy of the judiciary 
in appointment of judges which is the mandate of the 
Constitution. Such power cannot be justified under the doctrine 
G of wisdom of Parliament nor on the principles of trust once 
such power is in violation of principle of primacy of judiciary in 
appointment of judges. No individual instance either of working 
of the Executive or Legislature or the existing system of 
H 
100 Special Reference No.1 (1965) 1 SCC 413 at 446
SUPREME COURT ADVOCATES-ON-RECORD 
1031 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
appointment of judges need be discussed as the issue A 
involved here is of interpretation of the Constitution and not of 
success or failure of any individual or persons. As already 
mentioned, the shortcomings in working of every institution may 
need to be removed by constant efforts constitutionally 
permissible but cannot justify the altering of the framework of B 
the Constitution or the same being damaged. 
20. Reference may now be made to the submission of 
learned counsel for the respondents that in many countries 
without primacy of judiciary in appointment of judges, c 
independent judiciary is functioning and thus unfettered judicial 
primacy was inconsistent with the international trend. Particular 
mention has been made of 15 countries, namely, Kenya, 
Pakistan, South Africa, UK, Israel, France, Italy, Nigeria, Sri 
Lanka, Australia, Canada, New Zealand, Bangladesh, 
D 
Germany and United States. 
20.1 The submission of learned Attorney General in 
relation to judicial appointments in the said 15 countries is as 
follows: 
E 
"a. 9 countries conduct appointment of judges through 
either judicial appointment commissions (Kenya, 
Pakistan, South Africa and UK}, committees (Israel) or 
councils (France, Italy, Nigeria and Sir Lanka); 4 
countries appoint judges through a direct order of the 
F 
Governor General (Australia, Canada, New Zealand) 
or the President (Bangladesh),
where applicable; 1 
(Germany) follows a multi-stage process of nomination 
by the Minister of Justice, confirmation by 
Parliamentary Committees and final appointment by G 
the President; and 1 (United States) follows a process 
of nomination by the President (executive) and 
confirmation by the Senate (legislature). 
b. In all 15 countries, the executive is the final or H
1032 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
determinative appointing authority. 
Out of the 9 
countries with commissions, in 2 countries (South Africa 
and Sri Lanka) the executive has absolute majority in 
comparison with members of other groups ljudiciary, 
legislature and independent persons). In 4 countries 
(France, Israel, Kenya and UK) there is a balanced 
representation of various stakeholders, including the 
executive. Out of 3 countries where the number of 
judges are in a majority (Italy, Nigeria and Pakistan), in 
2 countries (Nigeria and Pakistan) the decision of the 
commission is subject to the vote of a parliamentary 
committee/Senate, while in 1 (Italy), the President of 
the Republic is the final appointing authority and the 
chairman of the judicial appointment body. In 5 of the 
countries without commissions (Canada, Australia, New 
Zealand, Bangladesh and United States of America), 
the decision is taken by the Executive without any formal 
process of consultation with the judiciary, while in 1 
(Germany), the appointment process is conducted by 
the Parliament, and later confirmed by the President. 
c. In 8 countries (France, Israel, Italy, Kenya, Nigeria, 
Pakistan, South Africa and UK) with bodies for judicial 
appointments, independent members have a mandated 
role in the selection process through representation on 
the said bodies. In 4 countries where independent 
members do not play a formal role in the appointment
process (Canada, USA, Australia and New Zealand), 
the appointing authority (body or person) consults 
independent members at various stages of the 
appointment process for their feedback on the selection 
or recommendation of a prospective candidate. In 3 
countries (Bangladesh, Germany and Sri Lanka) no 
documented process of consultation with independent 
members is provided for."
SUPREME COURT ADVOCATES-ON-RECORD 
1033 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
20 .2 Learned counsel for the respondents also referred 
A 
to criticism of the collegium system by some jurists including 
the eminent jurist Shri Nariman, appearing in the present case 
for the petitioners. 
20.3 On the other hand, Shri Nariman opposed the above 
8 
submissions and referred to decisions of this Court particularly 
Kesavananda Bharti case, Indira Gandhi case and 
Minerva Mills case, where the Constitution amendments were 
struck down. He also referred to expert studies including 
reports of the 141h and 121•1 Law Commissions and the C 
National Commission to Review the Working of the Constitution 
(NCRWC), headed by Justice M.N. Venkatachaliah (retired 
CJI), wherein it was observed that independence of judiciary 
was basic feature of the Constitution and composition of a 
National Commission was required to be consistent with the D 
concept of independence of judiciary. Method of appointment 
of judges could not be altered in such a way as may impinge 
upon the independence of judiciary. Composition of a Judicial 
Commission has to uphold the primacy of judiciary. 101 
20.4 Shri Nariman also submitted that the impugned 
E 
amendment was introduced in response to decisions of this 
Court affecting certain legislators. He submitted that 
independent functioning of the judiciary often comes in conflict 
with the Executive and the Legislature but mandate of the 
F
Constitution of upholding the independence of judiciary was 
necessary to inspire faith of citizens in impartial justice and to 
uphold the constitutional values like the Rule of law and the 
Democracy, by upholding protection of fundamental rights even 
against the State. He particularly made reference to the history G 
of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to 
provide in Article 368 that an Amendment compromising the 
independence of judiciary could be made by approval by 
101 (Paras 9.6 and 9.7 of the Report dated 26.9.2001 as included in Vol. II of 
the Report of the NCRWC, 2002) 
H
1034 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
majority at a referendum. The same was brought about by the 
Janta Government led by leaders who were arrested during 
emergency. It was not approved for want of majority in Rajya 
Sabha. He also referred to decisions of this Court Lily Thomas 
vs. Union of lndia 102 and Chief Election Commissioner 
B vs. Jan Chaukidar103 holding that a member of a Legislature 
will stand qualified onconviction and that a person confined in 
jail could not contest an election and efforts to undo such 
decisions. He also referred to the treatise, Constitutional 
Law of India by Seervai; 4th Edition, to the effect that the 
C 
decision of First Judges' case put the judicial independence 
at the mercy of the Executive 104• 
20.5 He also gave a personal note, in response to 
reliance on behalf of the respondents on his own biography 
D "Before Memory Fades" as follows:-
E 
F 
"/ have been, and I continue to be, a supporter of the 
"Judicial-Appointment-Commission-system" and so 
are my clients whom I represent (this is so stated in the 
Writ Petition at page 26 to 31, and 44 to 45). BUT I am 
definitely opposed to a pretence of a Judicial 
Appointments Commission - which in reality is not 
;udicial, onlv partlv or quasi iudicial. 
The "Judicial 
Appointments Commission system" (so called) as 
embodied in the ggrh Constitutional Amendment, 2014 
and along with the NJAC Act, 2014, is opposed 
BECAUSE is not in accordance with and does not 
conform
to the Beiiing Principles on Independence of 
the Judiciary (by which we in India are governed). The 
G 
principles were formulated after long deliberation by 
Heads of the Judiciary in the LA WAS/A region 
(including India's Chief Justice) - who are all signatories 
102 2013 (7) sec 653 
103 2013 (7) sec 507 
H 
104 Paras 25.350 to 25.354
SUPREME COURT ADVOCATES-ON-RECORD 
1035 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
to the Beijing Principle. Principles No. 15 reads as A 
fol/ows:-
"15. In some societies, the appointment of judges, 
by, with the consent of, or after consultation with a 
Judicial Services Commission has been seen as a 
8 
means of ensuring that those chosen judges are 
appropriate for the purpose. 
Where a Judicial 
Services Commission is adopted, it should include 
representatives of the higher Judiciary and the 
independent legal profession as a means of ensuring c 
that judicial competence, integrity and independence 
are maintained." 
Note - NOT OUTSIDERS, not representatives of the 
EXECUTIVE: because this is not helpful in the interests 
of maintaining the INDEPENDENCE OF THE D 
JUDICIARY. Text of Beijing Principles are annexed 
as Exhibit-II. 
The then Law Minister had stated in Parliament, when 
these measures were first introduced, that he had E 
consulted named persons including mvself - and as to 
what I said is accurately recorded in the Minutes of the 
Meeting prepared by the office of the Law Minister. This 
is what the minutes record: 
Constitutional Expert and Senior Advocate, 
F 
Shri Fali Nariman stated that it is important to 
remember the independence of the judiciary and the 
separation of powers. The basic structure doctrine 
as laid dowr-1 by the Supreme Court in the 
Keshavananda Bharti case could not be violated and G 
any proposal for appointment of judges
must be in 
conformity with the basic structure. He felt that the 
Government should consider following the model of 
the Appointments Commission as suggested bv the H
1036 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
Justice Venkatchaliah Commission that gave 
dominance to the judiciarv in the appointment 
process. 
He stated that composition of the 
Commission is the basic issue and a Commission 
with non-Judge domination would not be viable in 
B 
India ........................ " 
21. As already mentioned, the Constitution of India has 
its own background and personality 105. 
Models of other 
countries could not be blindly followed so as to damage the 
C 
identity and personality of the Indian Constitution. The Judicial 
Commissions referred to by learned Attorney General do not 
show the trend of reducing the pre-existing role of judiciary. In 
fact, the trend is for reducing the pre-existing role of the 
Executive. In the impugned amendment it is the reverse. Thus, 
o the contention of working of other Constitutions or setting up 
of judicial Commissions with varying compositions in other 
countries does not justify the impugned amendment which is 
contrary to the basic structure of the Indian Constitution. 
22. There is also no merit in the contention that in the 
E 
present case mere alteration in a constitutional provision does 
not amount to damage of a basic feature. It is_ not a case of 
simple amendment to iron out creases. Its impact clearly affects 
the independence of judiciary. As already mentioned, 
F 
appointment of judges has always been considered in the 
scheme of the working of the Indian Constitution to be integral
to the independence of judiciary. It is for this reason that 
primacy in appointment of judges has always been intended 
to be of the judiciary. Pre-dominant rol~ of the Executive is not 
G permissible. Such primacy comprises of initiating the proposal 
by the judiciary and final word being normally with the CJI (in 
representative capacity). This scheme is beyond the power 
of amendment available to the Parliament. 
H 
105 R.C. Poudyal vs. UOI (1994) Supp. 1 SCC 324, para 53
SUPREME COURT ADVOCATES-ON-RECORD 
1037 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
22.1 In the new s~heme, the Chief Justices of the High 
A 
Courts have not been provided any constitutional say. The 
Chief Justice of the High Court is in a better position to initially 
assess the merit of a candidate for appointment as judge of 
the High Court. The constitutional amendment does not provide 
for any role to the Chief Minister of the State. This may affect 
B 
the quality of the candidate selected and thereby the 
independence of judiciary. The statutory provision in the NJAC 
Act will be gone into separately. 
22.2 The contention of learned Attorney General that the c 
amendment was justified to uphold t.he principles of checks 
and balances and transparency which were equally important 
constitutional values cannot be accepted. Even assuming that 
there is a scope for improvement in the working of the collegium 
system, it can.not be held that under the existing system there D 
is no transparency or checks and balances. The procedure 
laid down in memoranda issued by the Central Government 
has been noted in the earlier part of this opinion. All 
proceedings in initiating a proposal are in writing and are 
forwarded to the constitutional functionaries. The Chief E 
Minister, the Governor, the Law Minister, the PM and the 
President have opportunity to give their views in the matter of 
appointment of Chief Justices and Judges of High Courts apart 
from judges and
non-judges involved in the process. The Law 
Minister, the PM and the President also have opportunity to 
F 
give their comment on appointment of CJI and the Judges of 
the Supreme Court. There is also an opportunity to suggest 
names before initiation of proposal. There is no bar to an 
expert feedback from the civil society through the constitutional 
functionaries involved. Thus, there is transparency as well as G 
checks C)nd balances. These considerations do not justify 
interference with the final initiation of proposal by the judiciary 
or in taking a final view in the matter by the judiciary, consistent 
with the mandate of the Constitution. 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
22.3 Learned Attorney Generarsought to compare the 
existing provision for veto by two members of collegium in 
appointment of Supreme Court Judges as per Third Judges' 
case to justify veto under Section 6 (6). As already mentioned, 
the role of the Law Minister and the non-judge members cannot 
B be placed at par with the Chief Justice and Judges of the 
Supreme Court. They cannot be compared for obvious 
reasons. The veto power with the Law Minister or with a non-
judge members, as against a Supreme Court Judge who is 
the member of the collegium, may involve interference with 
C the independence of judiciary. Similarly, requirement of special 
majority in any other ordinary situation was not comparable 
with the scheme of appointment of judges which is sui generis. 
Similarly, the plea of giving vital inputs does not justify 
0 
participation of the non-judge members with the Chief Justice 
and the Judges in discharging their functions of initiating a 
proposal or taking a final view. Though, formal act of 
appointment of judges may pe an executive function, there is 
a unique judicial element in the process of appointment of 
E judges of constitutional courts. The criticism against perceived 
short comings in the working of the collegium also does not 
justify the impugned provisions. As already observed, there 
may be criticism even against discharging of judicial functions 
by the aggrieved parties or otherwise. But
that does not justify 
F interference with the judicial decisions106. Needless to say that 
criticism can be against the working of any system but the 
systems can be changed only as per the Constitution. Efforts 
to improve all systems have to be continuously made. 
Conclusion:-
G 
22.4 I would conclude that the new scheme damages 
the basic feature of the Constitution under which primacy in 
100 P. Sambamurthy vs. State of A.P. (1987) 1 SCC 362 - Paras 3 and 4, 
striking down Article 3710(5), Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 
535 - Para 15 -
17, striking down Section 3470 of the Delhi Municipal 
H 
Corporation Act, 1957 (66 of 1957)
SUPREME COURT ADVOCATES-ON-RECORD 
1039 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
appointment of judges has to be with the judiciary. Under the A 
new scheme such primacy has been given a go-bye. Thus the 
impugned amendment cannot be sustained. 
F. Validity of the NJAC Act 
_ 23. In view of my conclusion about the amendment being 
B 
beyond the competence of the Parliament, I do not consider it 
necessary to discuss the validity of the NJAC Act in great detail 
as the said Act cannot survive once the amendment is struck 
down. However, consistent with my earlier view that primacy 
of judiciary in appointment of judges cannot be compromised C 
and on that ground not only Section 2 of the Amendment 
dispensing with the mandatory consultation with the judiciary 
as contemplated under the unamended provisions, Section 3 
conferring power on the NJAC (under Article 1248) and 
providing for composition of the Commission under Article D 
124A giving a role to the Law Minister and two eminent persons 
equal to the CJI in recommending appointments as CJI, Judges 
of Supreme Court, Chief Justices and other Judges of the High 
Courts and recommending transfer of Chief Justices and 
Judges of the High Courts are unconstitutional but also Article 
E 
124C giving power to the Parliament to regulate the procedure 
and to lay down the manner of selection was also 
unconstitutional, the impugned Act has to be struck down. It 
goes far beyond the procedural aspects. In Section 5 (2)
'suitability criteria' is left to be worked out by regulations. 
F 
Second proviso to Section 5 (2) and Section 6 (6) give veto to 
two members of the Commission which is not contemplated 
by the Amendment. Section 5 (3) and Section 6 (8) provide 
for conditions for selection to be laid down by regulations which 
G 
are not mere procedural matters. Section 6 authorises the 
recommendations for appointment as judges 9f the High Courts 
11 
without the proposal being first initiated by the Chief Justice of 
the High Court. Section 6 (1) provides for recommendation 
H
1040 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
for appointment of Chief Justice of a High Court on the basis 
of inter se seniority of High Court Judges. This may affect 
giving representation to as many High Courts as viable as, in 
inter se seniority, many judges of only one High Court may be 
senior most. Section 6 (2) provides for seeking nomination 
B from Chief Justices of High Courts, but Section 6 (3) empowers 
the Commission itself to make recommendation for 
appointment as Judge of the High Court and see!:< comments 
from Chief Justice after short listing the candidates by itself. 
Section 8 enables the Central Government to appoint officers 
C and employees of the Commission and to lay down their 
conditions of service. The Secretary of the Government is the 
Convenor of the Commission. Section 13 requires all 
regulations to be approved by the Parliament. These 
provisions in the Act impinge upon the independence of 
D judiciary. Even if the dc;ictrine of basic structure is not applied 
in judging the validity of a parliamentary statute, independence 
of judiciary and rule of law are parts of Articles 14, 19 and 21 
of the Constitution and absence of independence of judiciary 
E affects the said Fundamental Rights. The NJAC Act is thus 
liable to be struck down. 
G. Effect of Amendment being struck down 
24. The contention that even if Amendment is held to be 
F 
void, the pre-existing system cannot be restored has no logic. 
In exercise of power of judicial
review, a provision can be 
declared void in which case the legal position as it stands 
without such void provision can be held to prevail. It is not a 
situation when position has not been made clear While deciding 
G an issue. Power of this Court to declare the effect of its order 
cannot be doubted nor the decisions relied upon by the 
respondents show otherwise. I hold that on amendment being 
struck down, the pre-existing system stands revived. 
H. Review of Working of the Existing System 
H
SUPREME COURT ADVOCATES-ON-RECORD 
1041 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 
25. Since the system existing prior to amendment will 
A 
stand revived on the amendment being struck down and 
grievances have been expressed about its functioning, I am of 
the view that such grievances ought to be considered. It is 
made clear that grievances have not been expressed by the 
petitioners about the existence of the pre-existing system of B 
appointment but about its functioning in practice. It has been 
argued that this Court can go into this aspect without re-visiting 
the earlier decisions of the larger Benches. I am of the view 
that such grievances ought to be gone into for which the matter 
needs to be listed for hearing. 
C 
Conclusion 
26. The impugned Amendment and the Act are struck 
down as unconstitutional. Pre-existing scheme of appointment 
of judges stands revived. 
The matter be )isted for D 
consideration of the surviving issue of grievances as to working 
of pre-existing system. 
APPENDIX 
(I) Key Provisions of the Unamended Constitution 
E 
"124. Establishment and constitution of Supreme 
Court - (1) There shall be a Supreme Court of India 
consisting of a Chief Justice of India. and, until 
Parliament by law prescribes a larger number, of not F 
more than seven other Judges. 
(2) Every Judge of the Supreme Court shall be 
appointed by the President by warrant under his hand 
and seal after consultation with such of the Judges of 
t~e Supreme Court and
of the High Courts in the States G 
as the President may deem necessary for the purpose 
and shall hold office until he attains the age of sixty-
five years: 
H

1042 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
Provided that in the case of appointment of a Judge 
other than the Chief Justice, the Chief Justice of India 
shall always be consulted: 
Provided further that-
s 
(a) a Judge may, by writing under his hand addressed 
to the President, resign his office; 
(b) a Judge may be removed from his office in the 
manner provided in clause (4). 
c 
xxxxxxx 
D 
E. 
217. Appointment and conditions of the office of a 
Judge of a High Court- Every Judge of a High Court 
shall be appointed by the President by warrant under 
his hand and seal after consultation with the Chief 
Justice of India, the Governor of the State, and, in the 
case of appointment of a Judge other than the Chief 
Justice, the Chief Justice of the High court, and shall 
hold office, in the case of an additional or acting Judge, 
as provided in Article 224, and in any other case, until 
he attains the age of sixty two years: 
xxxxxx 
222. Transfer of a Judge from one High Court to 
another- The President may, after consultation with the 
F 
Chief Justice of India, transfer a Judge from one High 
Court to any other High Court. 
xxxxx" 
(II) The 991h Amendment Act 
G 
''THE CONSTITUTION (NINETY-NINTH AMENDM~NT) 
. H 
ACT, 2014 
[31 51 December, 2014] 
An Act further to amend the Constitution of India .
SUPREME COURT ADVOCATES-ON-RECORD 
1043 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Be it enacted by Parliament in the Sixty-fifth Year of A 
the Republic of India as follows:-
1. (1) This Act may be called the Constitution (Ninety-
ninth Amendment) Act, 2014. 
(2) It shall come into force on such date as the Central 8 
Government may, by notification in the Official 
Gazette, appoint. 
2. In article 124 of the Constitution, in clause (2),-
(a for the words "after consultation with such of the C 
Judges of the Supreme Court and of the High Courts 
in the States as the President may deem necessary for 
the purpose", the words, figures and letter "on the 
recommendation of the National Judicial Appointments 
Commission referred to in article 124A" shall be 
D 
substituted; 
(b) the first proviso shall be omitted; 
(c) in the second proviso, for the words "Provided further 
that", the words "Provided that" shall be substituted. 
3. After article 124 of the Constitution, the following 
articles shall be inserted, namely:-
E 
"124A. (1) There shall be a Commission to be known 
as the National Judicial Appointments Commission 
consisting of the following, namely:-
F 
(a) the Chief Justice of India, Chairperson, ex officio; 
(b two other senior Judges of the Supreme Court 
next to the Chief Justice of India -Members, ex 
officio; 
G 
(c) the Union Minister in charge of Law and Justice-
-Member, ex officio; 
(d) two eminent persons to be nominated by the 
H
1044 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
committee consisting of the Prime Minister, the Chief 
Justice of India and the Leader of Opposition in the 
House of the People or where there is no such Leader 
of Opposition, then, the Leader of single largest 
Opposition Party in the House of the People -
Members: 
Provided that one of the eminent person shall be 
nominated from amongst the persons belonging to 
the Scheduled Castes, the Scheduled Tribes, Other 
Backward Classes, Minorities or Women: 
Provided further that an eminent person shall be 
nominated for a period of three years and shall not 
be eligible for renomination. 
(2) No act or proceedings of the National Judicial 
Appointments Commission shall be questioned or 
be invalidated merely on the ground of the existence 
of any vacancy or defect in the constitution of the 
Commission. 
1248. It shall be the duty of the National Judicial 
Appointments Commission to-
(a) recommend persons for appointment as Chief 
Justice of India, Judges of the Supreme Court, Chief 
Justices of High Courts and other Judges of High 
Courts; 
(b) recommend transfer of Chief Justices and other 
Judges of High Courts from one High Court to any 
other High Court; and 
(c) ensure that the person recommended is of ability 
and integrity. 
124C. Parliament may, by law, regulate the procedure 
for the appointment of Chief Justice of India and other
~ 
SUPREME COURT ADVOCATES-ON-RECORD 
1045 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
Judges of the Supreme Court and Chief Justices and A 
other Judges of High Courts and empower the 
Commission to lay down by regulations the procedure 
for the discharge of its functions, the manner of selection 
of persons for appointment and such other matters as 
may be considered necessary by it.". 
B 
4. In article 127 of the Constitution, in clause (1 ), for the 
words "the Chief Justice of India may, with the previous 
consent of the President", the words "the National 
Judicial Appointments Commission on a reference c 
made to it by the Chief Justice of India, may with the 
previous consent of the President" shall be substituted. 
5. In article 128 of the Constitution, for the words "the 
Chief Justice of India", the words "the National Judicial 
Appointments Commission" shall be substituted. 
D 
6. In article 217 of the Constitution, in clause (1), for the 
portion beginning with the words "after consultation", 
and ending with the words "the High Court", the words, 
figures and letter "on the recommendation of the 
E 
National Judicial Appointments Commission referred 
to in article 124A" shall be substituted. 
7. In article 222 of the Constitution, in clause (1), for the 
words "after consultation with the Chief Justice of India'; 
the words, figures and letter "on the recommendation 
F 
of the National Judicial Appointments Commission 
referred to in article 124A '.'shall
be substituted. 
8. In article 224 of the Constitution,-
(a) in clause (1), for the words "the President may G 
appoint", the words "the President may, in 
consultation with the National Judicial Appointments 
Commission, appoint" shall be substituted; 
H
1046 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
(b) in clause (2), for the words "the President may 
appoint", the words "the President may, in 
consultation with the National Judicial Appointments 
Commission, appoint" shall be substituted. 
9. In article 224A of the Constitution, for the words "the 
Chief Justice of a High Court for any State may at any 
time, with the previous consent of the President", the 
words "the National Judicial Appointments Commission 
on a reference made to it by the Chief Justice of a High 
Court for any State, may with the previous consent of 
the President" shall be substituted. 
10. In article 231 of the Constitution, in clause (2), sub-
clause (a) shall be omitted." 
{II) The NJAC Act 
"THE NATIONAL JUDICIAL APPOINTMENTS 
COMMISSION ACT, 2014 NO. 40 OF 2014 
{31 51 December, 2014] 
E 
An Act to regulate the procedure to be followed by the 
National Judicial Appointments Commission for 
recommending persons for appointment as the Chief 
Justice of India and other Judges of the Supreme Court 
and Chief Justices and other Judges of High Courts 
F 
and for their transfers and for matters connected 
G 
H 
therewith or incidental thereto. 
Be it enacted by Parliament in the Sixty-fifth Year of 
the Republic of India as follows:-
1. (1) This Act may be called the National Judicial 
Appointments Commission Act, 2014. 
(2) It shall come into force on such date as the Central 
Government may, by notification in the Official Gazette,

appoint.
SUPREME COURT ADVOCATES-ON-RECORD 
1047 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
2. In this Act, unless the context otherwise requires,-
A 
(a) "Chairperson" means the Chairperson of the 
Commission; 
(b) "Commission" means the National Judicial 
Appointments Commission referred to in article 124A 
B 
of the Constitution; 
(c) "High Court" means the High Court in respect of 
which recommendation for appointment of a Judge is 
proposed to be made by the Commission; 
( d) "Member" means a Member of the Commission and 
includes its. Chairperson; 
· 
(e) "prescribed" means prescribed by the rules made 
under this Act; 
(f) "regulations" means the regulations made by the 
Commission under this Act. 
3. The Headquarters of the Commission shall be at 
Delhi. 
4. (1) The Central Government shall, within a period of 
thirty days from the date of coming into force of this Act, 
intimate the vacancies existing in the posts of Judges 
c 
D 
E 
in the Supreme Court and in a High Court to the 
Commission for making its recommendations to fill up 
F 
such vacancies. 
(2) The Central Government shall, six months prior to . 
the date of occurrence of any vacancy by reason of 
completion of the term of a Judge of the Supreme Court 
or of a High Court, make a reference to the Commission G 
for making its recommenda.tion to fill up such vacancy. 
(3) The Central Government shall, within a period of 
thirty days from the date of occurrence of any vacancy 
H
1048 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
by reason of death or resignation of a Judge of the 
Supreme Court or of a High Court, make a reference to 
the Commission for making its recommendations to 
fill up such vacancy. 
5. (1) The Commission shall recommend for 
appointment the senior-most Judge of the Supreme 
Court as the Chief Justice of India if he is considered fit 
to hold the office: Provided that a member of the 
Commission whose name is being considered for 
recommendation shall not participate in the meeting. 
(2) The Commission shall, on the basis of ability, merit 
and any other criteria of suitability as-may be specified 
by regulations, recommend the name for appointment 
as a Judge of the Supreme Court from amongst 
persons who are eligible to be appointed as such under 
clause (3) of article 124 of the Constitution: 
'Provided that while making recommendation for 
appointment of a High Court Judge, apart from seniority, 
the ability and merit of such Judge shall be considered: 
Provided further that the Commission shall not 
recommend a person for appointment if any two 
members of the Commission do not agree for such 
recommendation. 
(3) The Commission may, by regulations, specify such 
other procedure and conditions for selection and 
appointment of a Judge of the Supreme Court as it may 
consider necessary. 
6. (1) The Commission shall recommend for 
appointment a Judge of a High Court to be the Chief 
Justice of a High
Court on the basis of inter se seniority 
of High Court Judges and ability, merit and any other 
criteria of suitability as may be specified by regulations.
SUPREME COURT ADVOCATES-ON-RECORD 
1049 
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 
(2) The Commission shall seek nomination from the 
A 
Chief Justice of the concerned High Court for the 
purpose of recommending for appointment a person 
to be a Judge of that High Court. 
(3) The Commission shall also on the basis of ability, 
8 
merit and any other criteria of suitability as may be 
specified by regulations, nominate name for 
appointment as a Judge of a High Court from amongst 
persons who are eligible to be appointed as such under 
clause (2) of article 217 of the Constitution and forward c 
such names to the Chief Justice of the concerned High 
Court for its views. 
(4) Before making any nomination under sub-section 
(2) or giving its views under sub-section (3), the Chief 
Justice of the concerned High Court shall consult two D 
senior-most Judges of that High Court and such other 
Judges and eminent advocates of that High Court as 
may be specified by regulations. 
' 
(5) After receiving views and nomination under sub-
E 
sections (2) and (3), the Commission may recommend 
for appointment the person who is found suitable on 
the basis of ability, merit and any other criteria of 
suitability as may be specified by regulations. 
(6) The Commission shall not recommend a person F 
for appointment under this section if any two members 
of the Commission do not agree for such 
recommendation. 
(7) The Commission shall elicit in writing the views of G 
the Governor and
the Chief Minister of the State 
concerned before making such recommendation in 
such manner as may be specified by regulations. 
(8) The Commission may, by regulations, specify such 
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other procedure and conditions for selection and 
appointment of a Chief Justice of a High Court and a 
Judge of a High Court as it may consider necessary. 
7. The President shall, on the recommendations made 
by the Commission, appoint the Chief Justice of India 
or a Judge of the Supreme Court or, as the case may 
be, the Chief Justice of a High Court or the Judge of a 
High Court: 
Provided that the President may, if considers 
necessary, require the Commission to reconsider, either 
generally or otherwise, the recommendation made by 
it: 
Provided further that if the Commission makes a 
recommendation after reconsideration in accordance 
with the provisions contained in sections 5 or 6, the 
President shall make the appointment accordingly. 
8. (1) The Central Government may, in consultation with 
the Commission, appoint such number of officers and 
other employees for the discharge of functions of the 
Commission under this Act. 
(2) The terms and other conditions of service of officers 
and other employees of the Commission appointed 
under sub-section (1) shall be such as may be 
prescribed. 
(3) The Convenor of the Commission shall be the 
Secretary to the Government of India in the Department 
of Justice. 
9. The Commission shallrecommend for transfer of 
Chief Justices and other Judges of High Courts from 
one High Court to any other High Court, and for this 
purpose, specify, by regulations,
the procedure for such
SUPREME. COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
. 
transfer. 
A 
10. (1) The Commission shall have the power to specify, 
by regulations, the procedure for the discharge of its 
functions. 
(2) The Commission shall meet at such time and place B 
as the Chairperson may direct and observe such rules 
of procedure in regard to the transaction of business at 
its meetings (including the quorum at its meeting), as it 
may specify by regulations. 
c 
11. (1) The Central Government may, by notification in 
the Official Gazette, make rules to carry out thf! 
provisions of this Act. 
(2) In particular and without prejudice to the generality 
of the foregoing power, such rules may provide for all D· 
or any of the following matters, namely:-
( a) the fees and allowances payable to the eminent 
persons nominated under sub-clause (d) of clause (1) · 
of article 124A of the Constitution; 
(b) the terms and other conditions of service of officers 
and other employees of the Commission under sub-
section (2) of section 8; 
E 
(c) any other matter which is to be, or may be, 
prescribed, in respect of which provision is to be made F 
by the rules. 
12. (1) The Commission may, by notification in the 
Official Gazette, make regulations consistent with this 
Act, and the rules made thereunder, to carry out the G 
provisions of this Act. 
(2) In particular, and without prejudice to the generality 
of the foregoing power, such regulations may provide 
for
all or any of the following matters, namely:-
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(a) the criteria of suitability with respect to appointment 
of a Judge of the Supreme Court under sub-section (2) 
of section 5; 
(b) other procedure and conditions for selection and 
appointment of a Judge of the Supreme Court under 
sub-section (3) of section 5; 
(c) the ~riteria of suitability with respect to appointment 
of a Judge of the High Court under sub-section (3) of 
section 6; 
(d) other Judges and eminent advocates who may be 
consulted by the Chief Justice under sub-section (4) of 
section 6; 
(e) the manner of eliciting views of the Governor and 
the Chief Minister under sub-section (7) of section 6; 
(f) other procedure and conditions for selection and 
appointment of a Judge of the High Court under sub-
section (8) of section 6; 
(g) the procedure for transfer of Chief Justices and other 
Judges from one High Court to any other High Court 
under section 9; 
(h) the procedure to be followed by the Commission in 
the discharge of its functions under sub-section (1) of 
section 10; 
(i) the rules of procedure in regard to the transaction of 
business at the meetings of Commission, including the 
quorum at its meeting, under sub-section (2) of section 
10; 
U) any other matter which is required to be, or may be, 
specified by regulations or in respect of which provision 
is to be made by regulations.
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
13. Every rule and regulation made under this Act shall A 
be laid, as soon as may be after it is made, before each 
House of Parliament, while it is in session, for a total 
period of thirty days, which may be comprised in one 
session or in two or more successive sessions, and if, 
before the expiry of the session immediately following 
B 
the session or the successive sessions aforesc;iid, both 
Houses agree in making any modification in the rule 
or regulation or both Houses agree that the rule or 
regulation should not be made, the rule or regulation 
shall thereafter have effect only in such modified form C 
or be of no effect, as the case may be; so, however, that 
any such modification or annulment shall be without 
prejudice to the validity of anything previously done 
under that rule or regulation. 
D 
14. (1) If any difficulty arises in giving effect to the 
provisions of this Act, the Central Government may, after 
consultat(on with the Commission, by an order 
published in the Official Gazette, make such provisions, 
not inconsistent with the provisions of this Act as appear E 
to it to be necessary or expedient for removing the 
difficulty: 
Provided that no such order shall be made after the 
expiry of a period of five years from the date of F 
commencement of this Act. 
(2) Every order made under this section shall, as soon 
as may be after it is made, be laid before each
House 
of Parliament." 
(Ill) The Statement of Objects and Reasons of the G 
Amendment Act 
"Statement of Objects and Reasons 
The Judges of the Supreme Court are appointed under H
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clause (2) of article 124 and the Judges of the High 
Courts are appointed under clause (1) of article 217 of 
the Constitution, by the President. The Ad-hoc Judges 
and retired Judges for the Supreme Court are appointed 
under clause (1) of article 127 and article 128 of the 
Constitution respectively. The appointment of 
Additional Judges and Acting Judges for the High Court 
is made under article 224 and the appointment of retired 
Judges for sittings of the High Courts is made under 
article 224A of the Constitution. The transfer of Judges 
from one High Court to another High Court is made by 
the President after consultation with the Chief Justice 
of India under clause (1) of article 222 of the 
Constitution. 
2. The Supreme Court in the matter of Supreme Court 
Advocates-on-Record Association Vs. Union of India 
in the year 1993, and in its Advisory Opinion in the year 
1998 in the Third Judges case, had interpreted clause 
(2) of article· 124 and clause (1) of article 217 of the 
Constitution with respect to the meaning of 
"consultation" as "concurrence". Consequently, a 
Memorandum of Procedure for appointment of Judges 
to the Supreme Court and High Courts was formulated, 
and is being followed for appointment. 
· 
3. After review of the relevant constitutional provisions, 
the pronouncements of the Supreme Court and 
consultations with eminent Jurists, it is felt that a broad 
based National
Judicial Appointmen~s Commission 
should be established for making recommendations 
for appointment of Judges of the Supreme Court and 
High Courts. The said CommissJOn would provide a 
meaningful role to the judiciary, the executive and 
eminent persons to present their view points and make
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ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 
the participants account?Jble, while also introducing A 
transparency in the selection process. 
4. The Constitution (One Hundred and Twenty-first 
Amendment) Bill, 2014 is an enabling constitutional 
amendment- for amending relevant provisions of the 
8 
Constitution and for setting up a National Judicial 
Appointments Commission. The proposed Bill seeks 
to insert new articles 124A, 124B and 124C after article 
124 of the Constitution. The said Bill also provides for 
the composition and the functions of the proposed c 
National Judicial Appointments Commission. Further, 
it provides that Parliament may, by law, regulate the 
procedure for appointment of Judges and empower the 
National Judicial Appointments Commission to lay 
down procedure by regulation for the discharge of its 
D 
functions, manner of selection of persons for 
appointment and such other matters as may be 
considered necessary. 
5. The proposed Bill seeks to broad base the method 
of appointment of Judges in the Supreme Court and 
E 
High Courts, enables participation of judiciary, 
executive and eminent persons and ensures greater 
transparency, accountability and objectivity in the 
appointment of the Judges in the Supreme Court and F 
High Court. 
6. The Bill seeks to achieve the above objectives." 
ORDER OF THE COURT 
1. The prayer for reference to a larger Bench, and for G 
reconsideration of the Second and Third
Judges cases [( 1993) 
4 sec 441, and (1998) 7 sec 739, respectively], is rejected. 
2. The Constitution (Ninety-ninthAmendment)Act, 2014 
is declared unconstitutional and void. 
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A 
3. The National Judicia!Appointments Commission Act, 
2014, is declared unconstitutional and void. 
4. The system of appointment of Judges to the Supreme 
Court, and Chief Justices and Judges to the High Courts; and 
8 
transfer of Chief Justices and Judges of High Courts from one 
High Court, to another, as existing prior to the Constitution 
(Ninety-ninth Amendment) Act, 2014 (called the "collegium 
system"), is declared to be operative. 
5. To consider introduction of appropriate measures, if 
C any, for an improved working of the "collegium system", list on 
3.11.2015. 
Bibhuti Bhushan Bose 
Adjudicatiion rendered on merits.