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 
491 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the President was obliged to appoint the individual A 
recommended as a Judge of the High Court under Article 
217(1 ). It was submitted, that the above position was identical 
to the position contemplated under Article 124(2), which also 
provides, that a candidate recommended by the NJAC would 
be appointed by the President, as a Judge of the Supreme 
B 
Court. It was submitted, that neither Article 124(2) nor Article 
217(1) postulate, that the President could require the NJAC to 
reconsider, the recommendation made by the NJAC, as has 
been provided for under the first proviso to Section 7 of the 
NJAC Act. It was accordingly the contention of the learned C 
counsel for the petitioners, that the first proviso to Section 7 
was ultra vires the provisions of Articles 124(2) and 217(1 ), 
by providing for reconsideration, and that, the same was 
beyond the pale and scope of the provisions referred to above. D 
241. Having considered the submission advanced by the 
learned counsel for the petitioners in the foregoing paragraph, 
it is not possible for us to accept that Section 7 of the NJAC 
Act, by providing that the President could require the NJAC to 
reconsider a recommendation made by it, would in any manner E 
violate Articles 124(2) and 217(1) (which mandate, that Judges 
would be appointed by the President on the recommendation 
of the NJAC). It would be improper to infer, that
the action of 
the President, requiring the NJAC to reconsider its proposal, 
amounted to rejecting the proposal made by the NJAC. For, if F 
the NJAC was to reiterate the proposal made earlier, the 
President even in terms of Section 7, was bound to act in 
consonance therewith (as is apparent from the second proviso 
under Section 7 of the NJAC Act). In our considered view, the 
instant submission advanced at the hands of the petitioners G 
deserves to be rejected, and is accordingly rejected. 
242. Learned counsel for the petitioners had also 
assailed the validity of Section 8 of the NJAC Act, which 
provides for the Secretary to the Government of India, in the 
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Department of Justice, to be the convener of the NJAC. It was 
contended, that the function of a convener, with reference to 
the NJAC, would entail the responsibility of inter alia preparing 
the agenda for the meetings of the NJAC, namely, to decide 
the names of the individuals to be taken up for consideration, 
B in the next meeting. This would also include, the decision to 
ignore names from being taken up for consideration in the next 
meeting. He may include or exclude names from consideration, 
at the behest of his superior. It would also be the responsibility 
of the convener, to compile data made available from various 
C quarters, as contemplated under the NJACAct, and in addition 
thereto, as may be required by the Union Minister in charge of 
Law and Justice, and the Chief Justice of India. It was 
submitted, that such an onerous responsibility, could not be 
left to the executive alone, because material could be 
D selectively placed by the convener before the NJAC, in 
deference to the desire of his superior- the Union Minister in 
charge of Law and Justice, by excluding favourable material, 
with reference to a candidate considered unsuitable by the 
E executive, and by excluding unfavourable material, with 
reference to a candidate who carried favour with the executive. 
243. It was additionally submitted, that it was imperative 
to exclude all executive participation in the proceedings of the 
NJAC for two
reasons. Firstly, the executive was the largest 
F 
individual litigant, in matters pending before the higher judiciary, 
and therefore, cannot have.any discretionary role in the process 
of selection and appointment of Judges to the higher judiciary 
(in the manner expressed in the preceding paragraph). And 
secondly, the same would undermine the concepts of 
G "separation of powers" and "independence of the judiciary", 
whereunder the judiciary has to be shielded from any possible 
interference, either from the executive or the legislature. 
244. We have given our thoughtful consideration to the 
H above two submissions, dealt with in the preceding two
SUPREME COURT ADVOCATES-ON-RECORD 
493 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
paragraphs. We have already concluded earlier, that the A 
participation of the Union Minister in charge of Law and Justice, 
as a Member of the NJAC, as contemplated under Article 
124A(1 ), in the matter of appointment of Judges to the higher 
judiciary, would breach the concepts of "separation of powers" 
and the "independence of the judiciary", which are both 
B 
undisputedly components of the "basic structure" of the 
Constitution of India. For exactly the same reasons, we are of 
the view, that Section 8 of the NJAC Act which provides, that 
the Secretary to the Government of India, in the Department of 
Justice, would be the convener of the NJAC, is not sustainable C 
in law. In a body like the NJAC, the administrative functioning 
cannot be under executive or legislative control. The only 
remaining alternative, is to vest the administrative control of 
such a body, with the judiciary. For the above reasons, Section 
D 
8 of the NJAC Act would likewise be unsustainable in law. 
245. Examined from the legal perspective, it was 
unnecessary for us to examine the individual provisions of the 
NJAC Act. Once the constitutional validity of Article 124A( 1) is 
held to be unsustainable, the impugned constitutional 
E 
amendment, as well as, the NJAC Act, would be rendered a 
nullity. The necessity of dealing with some of the issues was 
prompted by the consideration, that broad
parameters should 
·be expressed. 
V. THE EFFECT OF STRIKING DOWN THE IMPUGNED 
CONSTITUTIONAL AMENDMENT: 
246. Would the amended provisions of the Constitution 
revive, if the impugned constitutional amendment was to be 
F 
set aside, as being violative of the "basic structure" of the G 
Constitution? It would be relevant to mention, that the instant 
issue was not adverted to by the learned counsel for the 
petitioners, possibly on the assumption, that if on a 
consideration of the present controversy, this Court would strike 
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down the Constitution (99thAmendment)Act, then Articles 124, 
127, 128, 217, 222, 224, 224A and 231, as they existed prior 
to the impugned amendment, would revive. And on such 
revival, the judgments rendered in the Second and Third 
Judges cases, would again regulate selections and 
B appointments, as also, transfer of Judges of the higher judiciary. 
247. A serious objection to the aforesaid assumption, 
was raised on behalf of the respondents by the Solicitor 
General, who contended, that the striking down of the impugned 
C constitutional amendment, would not result in the revival of the 
provisions, which had been amended by the Parliament. In 
order to canvass the aforesaid proposition, reliance was 
placed on Article 367, which postulates, that the provisions of 
the General Clauses Act, 1897 had to be applied, for an 
o interpretation of the Articles of the Constitution, in the same 
manner, as the provisions of the General Clauses Act, are 
applicable for an interpretation of ordinary legislation. Insofar 
as the instant submission is concerned, we have no hesitation 
in affirming, that unless the context requires otherwise, the 
E provisions of the General Clauses Act, can be applied, for a 
rightful and effective understanding of the provisions of the 
Constitution. 
248. Founded on the submission noticed in the foregoing 
F 
paragraph, the Solicitor General placed reliance on Sections 
6, 7 and 8 of the General
Clauses Act, which are being extracted 
hereunder: 
"6. Effect of repeal.-Where this Act, or any Central Act or 
Regulation made after the commencement of this Act, 
G 
repeals any enactment hitherto made or hereafter to be 
made, then, unless a different intention appears, the repeal 
shall not-
H 
(a) revive anything not in force or existing at the time at 
which the repeal takes effect; or ..
SUPREME COURT ADVOCATES-ON-RECORD 
495 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEt-IAR, J.] 
(b) affect the previous operation of any enactment so 
A 
repealed or anything duly done or suffered thereunder; or 
(c) affect any right, privilege, obligation or liability acquired, 
accrued or incurred under any enactment so repealed; or 
(d) affect any penalty, forfeiture or punishment incurred in 
respect of any offence committed against any enactment 
B 
so repealed; or 
(e) affect any investigation, legal proceeding or remedy in 
respect of any such right, privilege, obligation, liability, 
penalty, forfeiture or punishment as aforesaid;· 
and any such investigation, legal proceeding or remedy C 
may be instituted, continued or enforced, and any such 
penalty, forfeiture or punishment may be imposed as ifthe 
repealing Act or Regulation had not been passed. 
7. Revival of repealed enactments.-(1) In any Central Act D 
or Regulation made after the commencement of this Act, 
it shall be necessary, for the purpose of reviving, either 
wholly or partially, any enactment wholly or partially 
repealed, expressly to state that purpose. 
(2) This section applies also to all Central Acts made after 
E 
the third day of January, 1868, and to all Regulations made 
on or after the fourteenth day of January, 1887. 
8. Construction of references to repealed enactments.-(1) 
Where this Act, or any Central Act or Regulation made after 
the commencement of this Act, repeals and re-enacts, with
F 
or without modification, any provision of a former 
enactment, then references in any other enactment or in 
any im;trument to the provision so repealed shall, unless a 
different intention appears, be construed as references to 
the provision so re-enacted. 
G 
(2) Where before the fifteenth day of August, 1947, any Act 
of Parliament of the United Kingdom repealed and re-
enacted, with or without modification, any provision of a 
former enactment, then reference in any Central Act or in 
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any Regulation or instrument to the provision so repealed 
shall, unless a different intention appears, be construed 
as references to the provision so re-enacted.'' 
249. Relying on Section 6, it was submitted, that the 
setting aside of the impugned constitutional amendment, 
B should be considered as setting aside of a repealing provision. 
And as such, the acceptance ofthe claim of the petitioners, 
would not lead to the automatic revival of the provisions as 
they existed prior to the amendment. Relying on Section 7 it 
was asserted, that if a repealed provision had to be revived, it 
C was imperative for the legislature to express such intendment, 
and unless so expressly indicated, the enactment wholly or 
partly repealed, would not stand revived. Finally relying on 
Section 8 of the General Clauses Act, it was submitted, that 
0 
when an existing provision was repealed and another provision 
was re-enacted as its replacement, no further reference could 
be made to the repealed enactment, and for all intents and 
purposes, reference must mandatorily be made, only to the 
re-enacted provision. Relying on the principles underlying 
E Sections 6, 7 and 8, it was submitted, that even ifthe prayers 
made by the petitioners were to be accepted, and the 
impugned constitutional amendment was to be set aside, the 
same would not result in the revival of the unamended 
provisions. 
F 
250. Learned Solicitor General also referred
to a number 
of judgments rendered by this Court, to support the inference 
drawn by him. We shall therefore, in the first instance, examine 
the judgments relied upon: 
(i) Reliance in the first instance was placed on theAmeer-
G un-Nissa Begum case70• Our pointed attention was drawn to 
the observations recorded in paragraph 24 thereof, which is 
reproduced hereunder: 
"24 The result will be the same even if we proceed on the 
H 
footing that the various 'Firmans' issued by the Nizam were
SUPREME COURT ADVOCATES-ON-RECORD 
497 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
in the nature of legislative enactments determining private A 
rights somewhat on the analogy of private Acts of 
Parliament. We may assume that the 'Firman' of 26-6-1947 
was repealed by the 'Firman' of 24-2-1949, and the latter 
'Firman' in its turn was repealed by that of 7-9-1949. Under 
the English Common Law when a repealing enactment 
B 
was repealed by another statute. the repeal of the second 
Act revived the former Act 'ab initio'. But this rule does not 
apply to repealing Acts passed since 1850 and now if an 
Act repealing a former Act is itself repealed, the last repeal 
does not revive the Act before repealed unless words are C 
added reviving it: vide Maxwell's lnteroretation of Statutes. 
p. 402 (10th Edition). 
It may indeed be said that the present rule is the result of 
the statutory provisions introduced by the lnteroretation Act 
D 
of 1889 and as we are not bound by the provisions of any 
English statute. we can still apply the English Common 
Law rule if it appears to us to be reasonable and proper. 
But even according to the Common Law doctrine, the repeal 
of the repealing enactment would not revive the original 
E 
Act if the second repealing enactment manifests an 
intention to the contrary .... " 
Having given our thoughtful consideration to the 
conclusions recorded in the judgment relied upon, we are 
satisfied, that the same does not support the cause of
the 
F 
respondents, because in the judgment relied upon, it was 
clearly concluded, that under the English Common Law when 
a repealing enactment was repealed by another law, the repeal 
of the second enactment would revive the former "ab initio". In 
the above view of the matter, based exclusively on the English G 
Common Law, on the setting aside of the impugned 
constitutional amendment, the unamended provision, would 
stand revived. It also needs to be noticed, that the final position 
to the contrary, expressed in the judgment relied upon, 
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emerged as a consequence of subsequent legislative 
enactment, made in England, which is inapplicable to India. 
Having taken the above subsequent amendments into 
consideration, it was coneluded, that the repeal of the repealing 
enactment would not revive the original enactment, except" ... 
B if the second repealing enactment manifests an intention to 
the contrary .... " In other words, the implication would be, that 
the original Act would revive, but for an intention to the contrary 
expressed in the repealing enactment. It is however needs to 
be kept in mind, that the above judgment, did not deal with an 
C 
exigency where the provision enacted by the legislation had 
been set aside by a Court order. 
(ii) Reliance was then placed on the Firm A.T.B. Mehtab Majid 
& Co. case71 , and more particularly, the conclusions drawn in 
o paragraph 20 thereof. A perusal of the above judgment would 
reveal, that this Court had recorded its conclusions, without 
relying on either the English Common Law, or the provisions 
of the General Clauses Act, which constituted the foundation 
of the contentions advanced at the hands of the respondents, 
E before us. We are therefore satisfied, that the conclusions 
drawn in the instant judgment, would not be applicable, to arrive 
at a conclusion one way or the other, insofar as the present 
controversy is concerned. 
F 
(iii) Reference was thereafter made to the B.N. Tewari case72, 
and our
attention was drawn to the following observations: 
"6. We shall first consider the question whether the carry 
forward rule of 1952 still exists. It is true that in 
Devadasan's case, AIR 1964 SC 179, the final order of 
G 
this Court was in these terms:-
H 
"ln the result the petition succeeds partially and the carry 
forward rule as modified in 1955 is declared invalid." 
That however does not mean that this Court held that 
the 1952-rule must be deemed to exist because this
SUPREME COURT ADVOCATES-ON-RECORD 
499 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Court said that the carry forward rule as modified in 1955 A 
was declared invalid. The carry forward rule of 1952 
was substituted by the carry forward rule of 1955. On 
this substitution the carry forward rule of 1952 clearly 
ceased to exist because its place was taken by the carry 
forward rule of 1955. Thus by promulgating the new B 
carry forward rule in 1955. the Government of India itself 
cancelled the carry forward rule of 1952. When therefore 
this Court struck down the carry forward rule as modified 
in 1955 that did not mean that the carry forward rule of 
1952 which had already ceased to exist, because the C 
Government of India itself cancelled it and had 
substituted a modified rule in 1955 in its place, could 
revive. We are therefore of opinion that after the 
judgment of this Court in Devadasan's case AIR 1964 D 
SC 179 there is no carry forward rule at all, for the carry 
forward rule of 1955 was struck down by this Court while 
the carry forward rule of 1952 had ceased to exist when 
the Government of India substituted the carry forward 
rule of 1955 in its place. But it must be made clear that E 
the judgment of this Court in Devadasan's case AIR 
1964 SC 179, is only concerned with that part of the 
instructions of the Government of India which deal with 
the carry forward rule; it does not in any way touch the 
reservation for scheduled castes and scheduled
tribes 
F 
at 12-1 /2% and 5%, respectively; nor does it touch the 
filling up of schedule tribes vacancies by scheduled 
caste candidates where sufficient number of scheduled 
tribes are not available in a particular year or vice versa. 
The effect of the judgment in Devadasan's case. AIR G 
1964 SC 179. therefore is only to strike down the carry 
forward rule and it does not affect the year to year 
reservation for scheduled castes and scheduled tribes 
or filling up of scheduled tribe vacancies by a member 
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[2015] 13 S.C.R. 
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of scheduled castes in a particular year if a sufficient 
number of scheduled tribe candidates are not available 
in that year of vice versa. This adjustment in the 
reservation between scheduled castes and tribes has 
B 
c 
nothing to do with the carry forward rule from year to 
year either of 1952 which had ceased to exist or of 1955 
· which was struck down by this Court. In this view of the 
matter it is unnecessary to consider whether the carry 
forward rule of 1952 would be unconstitutional. for that 
rule no longer exists." 
The non-revival of the carry-forward-rule of 1952, which 
was sought to be modified in 1955, determined in the instant 
judgment, wa~ not on account of the submissions, that have 
been advanced before us in the present controversy. But, on 
0 
account of the fact, that the Government of India had itself 
cancelled the carry-forward-rule of 1952. Moreover, the issue 
under consideration in the above judgment, was not akin to 
the controversy in hand. As such, we are satisfied that reliance. 
on the B.N. Tewari case72 is clearly misplaced. 
E (iv) Relying on the Koteswar Vittal Karnath case 73 , learned 
Solicitor General placed reliance on the following observations 
recorded therein: 
F 
G 
H 
"8. On that analogy, it was argued that, if we hold that the 
Prohibition Order of 1950, was invalid, the previous 
Prohibition Order of 1119, cannot be held to be revived. 
This argument ignores the
distinction between 
supersession of a rule, and substitution of a rule. In the 
case of Firm A. T. B. Mehtab Majid & Co. (supra), the new 
Rule 16 was substituted for the old Rule 16. The process 
of substitution consists of two steps. First, the old rule it 
made to cease to exist and, next, the new rule is brought 
into existence in its place. Even if the new rule be invalid, 
the first step of the old rule ceasing to exist comes into 
effect, and it was for this reason that the court held that, on 
\
SUPREME COURT ADVOCATES-ON-RECORD 
501 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
declaration of the new rule as invalid, the old rule could not A 
be held to be revived. In the case before us there was no 
substitution of the Prohibition Order of 1950. for the 
Prohibition Order of 1119. The Prohibition Order of 1950, 
was promulgated independently of the Prohibition Order 
of 1119 and because of the provisions of law it would have 
B 
had the effect of making the Prohibition Order of 1119 
inoperative if it had been a valid Order. If the Prohibition 
Order of 1950 is found to be void ab initio, it could never 
make the Prohibition Order of 1119 inoperative. 
Consequently on the 30th March. 1950. either the 
C 
Prohibition Order of 1119 or the Prohibition Order of 1950 
must be held to have been in force in Travancore-Cochin. 
so that the provisions of Section 73(2) of Act 5 of 1950 
would apply to that Order and would continue it in force. 
D 
This further continuance after Act 5 of 1950, of course, 
depends on the validity of Section 3 of Act 5 of 1950, 
because Section 73(2) purported to continue the Order in 
force under that section, so that we proceed to exa.mine 
the argument relating to the validity of Section 3 of Act 5 of E 
1950." 
A perusal of the conclusion drawn hereinabove, 
apparently supports the contention advanced at the hands of 
the respondents, that if the amendment to an erstwhile 
legislative enactment, envisages the substitution of an
existing 
F 
provision, the process of substitution must be deemed to 
comprise of two steps. The first step would envisage, that the 
old rule would cease to exist, and the second step would 
envisage, that the new rule had taken the place of the old rule. 
And as such, even ifthe new rule was to be declared as invalid, 
G 
the first step depicted above, namely, that the old rule has 
ceased to exist, would remain unaltered. Thereby, leading to 
the inference, that in the present controversy, even if the 
impugned constitutional amendment was to be set aside, the 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
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same would not lead to the revival of the unamended Articles 
124, 127, 128,217,222,224,224Aand231. lnourconsidered 
view, the observations made in the judgment leading to the 
submissions and inferences recorded above, are not 
applicable to the present case. The highlighted portion of the 
B judgment extracted above, would apply to the present 
controversy. In the present case the impugned constitutional 
amendment was promulgated independently of the original 
provisions of the Constitution. In fact, the amended provisions 
introduce a new scheme of selection and appointment of 
C Judges to the higher judiciary, directionally different from the 
prevailing position. And therefore, the original provisions of 
the Constitution would have been made inoperative, only if the 
amended provisions were valid. Consequently, if reliance must 
0 
be placed on the above judgment, the conclusion would be 
against the proposition canvassed. It would however be 
relevant to mention, that the instant judgment, as also, some 
of the other judgments relied upon by the learned counsel for 
the respondents, have been explained and distinguished in 
E the State of Maharashtra v. Central Provinces Manganese Ore 
Co. Ltd. 76 , which will be dealt with chronologically hereinafter. 
(v) The learned Solicitor General then placed reliance on, the 
Mulchand Odhavji case74, and invited our attention to the 
observations recorded in paragraph 8 thereof.
Reliance was 
F 
even placed on, the Mohd. Shaukat Hussain Khan case75, and 
in particular, the observations recorded in paragraph 11 thereof. 
We are satisfied, that the instant two judgments are irrelevant 
for the determination of the pointed contention, advanced at 
the hands of the learned counsel for the respondents, as the 
G subject matter of the controversy dealt with in the above cases, 
was totally different from the one in hand. 
(vi) Reference was then made to the Central Provinces 
Manganese Ore Co. Ltd. case76, and our attention was drawn 
H to the following observations recorded therein:
SUPREME COURT ADVOCATES-ON-RECORD 
503 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"18. We do not think that the word substitution necessarily A 
or always connotes two severable steps, that is to say, 
one of repeal and another of a fresh enactment even if it 
implies two steps. Indeed, the natural meaning of the word 
"substitution" is to indicate that the process cannot be split 
up into two pieces like this. If the process described as 
B 
substitution fails, it is totally ineffective so as to leav~ intact 
what was sought to be displaced. That seems to us to be 
the ordinary and natural meaning of the words "shall be 
substituted". This part could not become effective without 
the assent of the Governor-General. The State Governor's C 
assent was insufficient. It could not be inferred that, what 
was intended was that, in case the substitution failed or 
proved ineffective, some repeal, not mentioned at all, was 
brought about and remained effective so as to create what D 
may be described as a vacuum in the statutory law on the 
subject-matter. Primarily, the question is one of gathering, 
the intent from the use of words in the enacting provision 
seen in the light of the procedure gone through. Here, no 
intention to repeal. without a substitution. is deducible. In 
E 
other words, there could be no repeal if substitution failed. 
The two were a part and parcel of a single indivisible 
process and not bits of a disjointed operation. 
19. Looking at the actual
procedure which was gone 
through, we find that, even if the Governor had assented to 
F 
the substitution, yet, the amendment would have been 
effective, as a piece of valid legislation, only when the assent 
of the Governor-General had also been accorded to it. It 
could not be said that what the Legislature intended or what 
the Governor had assented to consisted of a separate 
G 
repeal and a fresh enactment. The two results were to 
follow from one and the same effective Le§islative process. 
The process had, therefore, to be so viewed and 
interpreted. 
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504 
A 
B 
c 
D 
E 
F 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
20. Some help was sought to be derived by the citation of 
B.N. Tewari v. Union of India [1965]2 SCR 421 and the case 
of Firm A. T. B. Mehtab Majid and Co. v. State of Madras. 
Tewari's case related to the substitution of what was 
described as the "carry forward" rule contained in the 
departmental instruction which was sought to be 
substituted by a modified instruction declared invalid by 
the court. It was held that when the rule contained in the 
modified instruction of 1955 was struck down the rule 
contained in a displaced instruction did not survive. Indeed, 
one of the arguments there was that the original "carry 
forward" rule of 1952 was itself void for the very reason for 
which the "carry forward" rule, contained in the modified 
instructions of 1955, had been struck down. Even the 
analogy of a merger of an order into another which was 
meant to be its substitute could apply only where there is a 
valid substitution. Such a doctrine applies in a case where 
a judgment of a subordinate court merges in the judgment 
of the appellate court or an order reviewed merges in the 
order by which the review is granted. Its application to a 
legislative process may be possible only in cases of valid 
substitution. The legislative intent and its effect is gathered, 
inter alia, from the nature of the action of the authority which 
functions. It is easier to impute an intention to an executive
rule-making authority to repeal altogether in any event what 
is sought to be displaced by another rule. The cases cited 
were of executive instructions. We do not think that they 
could serve as useful guides in interpreting a Legislative 
provision sought to be amended by a fresh enactment. The 
procedure for enactment is far more elaborate and formal. 
A repeal and a displacement of a Legislative provision by a 
fresh enactment can only take place after that elaborate 
procedure has been followed in toto. In the case of any 
rule contained in an executive instruction, on the other hand, 
the repeal as well as displacement are capable of being
SUPREME COURT ADVOCATES-ON-RECORD 
505 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
achieved and inferred from a bare issue of fresh instructions 
A 
on the same subject. 
21. In Mehtab Majid & Co.'s case a statutory role was held 
not to have revived after it was sought to be substituted by 
another held to be invalid. This was also a case in which 
no elaborate legislative procedure was prescribe~ for a B 
repeal as it is in the case of statutory enactment of statutes 
by legislatures. In every case, it is a question of intention to 
be ga~hered from the language as well as the acts of the 
rule-making or legislating authority in the context in which 
these occur. 
C 
22. A principle of construction contained now in a statutory 
provision made in England since 1850 has been: 
Where an Act passed after 1850 repeals wholly or partially 
any former enactment and substitutes provisions for the D 
enactment repealed, the repealed enactment remains in 
force until the substituted provisions come into operation. 
(See: Halsbury's Laws of England, Third Edn. Vol. 36, P. 
474; Craies on "Statute Law", 6th Edn. p.386). 
Although, there is no corresponding provision in our General E 
Clauses Acts, yet, it shows that the mere use of words 
denoting a substitution does not ipso facto or automatically 
repeal a provision until the provision, which is to take its 
place becomes legally effective. We have as explained 
above, reached the same conclusion by considering the 
F
ordinary and natural meaning of the term "substitution" 
when it occurs without anything else in the language used 
or in the context of it or in the surrounding facts and 
circumstances to lead to another inference. It means, 
ordinarily that unless the substituted provision is there to G 
take its place. in law and in effect. the pre-existing provision 
continues. There is no guestion of a "revival"." 
It would be relevant to mention, that the learned Solicitor 
General conceded, that the position concluded in the instant 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A judgment, would defeat the stance adopted by him. We 
endorse the above view. The position which is further 
detrimental to the contention advanced on behalf of the 
respondents is, that in recording the above conclusions, this 
Court in the above cited case, had taken into consideration, 
B the juagments in the FirmA.T.B. Mehtab Majid case71 , the B.N. 
Tewari case72, the Koteswar Vittal Karnath case 73, and the 
Mulchand Odhavji case74• The earlier judgments relied upon 
by the learned counsel for the respondents would, therefore, 
be clearly inapplicable to the controversy in hand. In this view 
C of the matter, there is hardly any substance in the pointed issue 
canvassed on behalf of the respondents. 
(vii) The learned Solicitor General, then placed reliance on 
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of 
o lndia95, and invited our attention to the following observations 
E 
F 
G 
recorded therein: 
"107. In the cases before us we do not have rules made by 
two different authorities as in Mulchand case (1971) 3 SCC 
53 and no intention on the part of the Central Government 
to keep alive the exemption in the event of the subsequent 
notification being struck down is also established. The 
decision of this Court in Koteswar Vittal Karnath v .. K. 
Rangappa Baliga and Co. (1969) 3 SCR 40) does not also 
support the Petitioners. In that case again the question was 
whether a subsequent legislation which was
passed by a 
legislature without competence would have the effect of 
reviving an earlier rule which it professed to supersede. 
This case again belongs to the category of Mohd. Shaukat 
Hussain Khan case, AIR 1974 SC 1480. It may also be 
noticed that in Koteswar Vittal Karnath case, AIR 1969 SC 
504, the ruling in the case of FirmA.T.B. Mehtab Majid and 
Co. AIR 1963 SC 928 has been distinguished. The case of 
State of Maharashtra v. Central Provinces Manganese Ore 
H 
"(1985) 1 sec 641
SUPREME COURT ADVOCATES-ON-RECORD 
507 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Co. Ltd., AIR 1977 SC 879 is again distinguishable. In this 
A 
case the whole legislative process termed substitution was 
abortive, because, it did not take effect for want of the assent 
of the Governor-General and the Court distinguished that 
case from Tiwari case, AIR 1965 SC 1430. We may also 
state that the legal effect on an earlier law when the later 
B 
law enacted in its place is declared invalid does not depend 
merely upon the use of words like. 'substitution', or 
'supersession'. It depends upon the totality of 
circumstances and the context in which they are used." 
c 
What needs to be noticed from the extract reproduced above 
is, that this Court in the above judgment clearly concluded, that 
the legal effect on an earlier law, when the later law enacted in 
its place was declared invalid, did not depend merely upon 
the use of the words like 'substitution' or, 'supersession'. And 
D 
further, that it would depend on the totality of the circumstances, 
and the context, in which the provision was couched. If the 
contention advanced by the learned Solicitor General is 
accepted, it would lead to a constitutional breakdown. The 
tremors of such a situation are already being felt. The retiring 
E 
·Judges of the higher judiciary, are not being substituted by 
fresh appointments. The above judgment, in our considered 
view, does not support the submission being canvassed,
because on consideration of the" ... totality of circumstances 
and the context. .. " the instant contention is just not acceptable. 
F 
We are therefore of the considered view, that even the instant 
judgment can be of no avail to the respondents, insofar as the 
present controversy is concerned. 
(viii) Reliance was next placed on the judgment rendered by 
this Court in Bhagat Ram Sharma v. Union of lndia96• The instant G 
judgment was relied upon only to show, that an enactment 
purported to be an amendment, has the same qualitative effect 
as a repeal of the existing statutory provision. The aforesaid 
" 1988 (Supp) sec 30 
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508 
SUPREME COURT REPORTS . 
[2015] 13 S.CR. 
A 
inference was drawn by placing reliance on Southerland's 
Statutory Construction, 3rd Edition, Volume I. Since there is no 
quarrel on the instant proposition, it is not necessary to record 
anything further. It however needs to be noticed, that we ·are 
not confronted with the effect of an amendment or a repeal. 
B We are dealing with the effect of the striking down of a 
constitutional amendment and a legislative enactment, through 
a process of judicial review. 
(ix) Reliance was then placed on State of Rajasthan v. Mangilal 
c Pindwal97, and particularly on the observations/conclusions 
recorded in paragraph 12 thereof. All that needs to be stated 
is, that the issue decided in the above judgment, does not arise 
for consideration in the present case, and accordingly, the 
conclusions drawn therein cannot be made applicable to the 
D 
present case. 
E 
F 
G 
H 
(x) Next in order, reliance was placed on the India Tobacco 
Co. Ltd. case77, and our attention was invited to the following . 
observations recorded therein: 
"15. The general rule of construction is that the repeal of a 
repealing Act does not revive anything repealed thereby. 
But the operation of this rule is not absolute. It is subject to 
the appearance of a "different intention" in the repealing 
statute. Again, such intention may be explicit or implicit. 
The questions, therefore, that arise for determination are: 
Whether in relation to cigarettes, the
1941 Act was repealed 
by the 1954 Act and the latter by the 1958 Act? Whether 
the 1954 Act and 1958 Act were repealing enactments? 
Whether there is anything in the 1954 Act and the 1958 Act 
indicating a revival of the 1941 Act in relation to cigarettes? 
16. It is now well settled that "repeal" connotes abrogation 
or obliteration of one statute by another, from the statute 
book as completely "as if it had never been passed"; when 
• 1 (1996) 5 sec 60
SUPREME COURT ADVOCATES-ON-RECORD 
509 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
an Act is repealed, "it must be considered (except as to 
A 
transactions past and closed) as if it had never existed". 
(Per Tindal, C.J. in Kay v. Goodwin (1830) 6 Bing 576, 
582 and Lord Tenterdon in Surtees v. Ellison (1829) 9 B&C 
750, 752 cited with approval in State of Orissa v. M.A. 
Tulloch & Co .. AIR 1964 SC 1284). 
B 
17. Repeal is not a matter of mere from but one of 
substance. depending upon the intention of the Legislature. 
If the intention. indicated expressly or by necessary 
implication in the subsequent statute. was to abrogate or 
wipe off the former enactment wholly or in part. then it 
C 
would be a case of total or pro tanto repeal. If the intention 
was merely to modify the former enactment by engrafting 
an exception or granting an exemption. or by super-adding 
conditions. or by restricting. intercepting or suspending its 
D 
operation. such modification would not amount to a repeal 
- (see Craies on statute Law, 7th Edn. pp. 349, 353, 373, 
374 and 375; Maxwell's Interpretation of Statutes, 11th Edn. 
pp. 164,. 390 based on Mount v. Taylor (1868) L.R. 3 C.P. 
645; Southerland's Statutory Construction 3rd Edn. Vol. I, 
E 
paragraphs 2014 and 2022, pp. 468 and 490). Broadly 
speaking, the principal object of a Repealing and Amending 
Act is to 'excise dead matter, prune off superfluities and 
reject clearly inconsistent enactments' -see Mohinder Singh 
v. Mst.
Harbhajan Kaur." 
F 
What needs to be kept in mind, as we have repeatedly 
expressed above is, that the issue canvassed in the judgments 
relied upon, was the effect of a voluntary decision of a 
legislature in amending or repealing an existing provision. That 
position would arise, if the Parliament had validly amended or G 
repealed an existing constitutional provision. Herein, the 
impugned constitutional amendment has definetly the effct of 
substituting some of the existing provisions of the Constitution, 
and also, adding to it some new provisions. Naturally 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
substitution connotes, that the earlier provision ceases to exist, 
and the amended provision takes its place. The present .. 
situation is one where, the impugned constitutional amendment 
by a process of judicial review, has been set aside. Such being 
the position, whatever be the cause and effect of the impugned 
B constitutional amendment, the same will be deemed to be set 
aside, and the position preceding the amendment will be 
restored. It does not matter what are the stages or steps of the 
· call Se and effect of the amendment, all the stages and steps 
. 
; 
. 
will stand negated, in the same fashion as they were introduced 
C by the amendment, when the amended provisions are set 
aside. 
(xi) l_n adgition to the above judgment, reliance was also placed 
on the Kolhapur Canesugar Works Ltd. case78, West U.P. 
o Sugar Mills Association v. state of U.P.98, Gammon India Ltd. 
v. Special Chief Secretary99, the Hirendra Pal Singh case79; 
the Joint Action Committee of Air Line Pilots' Associations of 
India case80, and the K. Shyam Sunder case81 • The conclusions 
drawn in the above noted judgments were either based on the 
E 
judgments already dealt with by us hereinabove, or on general 
principles. It is not necessary to examine all the above 
. judgments, by expressly taking note of the observations 
recorded in each of them. 
F 
251. Even though we have already recorded our 
determination with reference to the
judgments cited by the 
learned Solicitor General, it is imperative for us to record, that 
it is evident from the conclusions returned in the Central 
Provinces Manganese Ore Co. Ltd. case76, that in the facts 
G and circumstances of the present case, it would have to be 
kept in mind, that if the construction suggested by the learned 
Solicitor General was to be adopted, it would result in the 
creation of a void. We say so, because if neither the impugned 
•• (2002) 2 sec 645 
H " (2006) 3 sec 354
. ·. 
SUPREME COURT ADVOCATES-ON-RECORD 
511 
,. . 
. 
.... 
•' 
. 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
constitutiona.1 provision, nor the amended provisions of the 
A 
Constitution would survive, it would lead to a breakdown of the 
constitutional machinery, inasmuch as, there would be a lacuna 
or a hiatus, insofar as the manner of selection and appointment 
of Judges to the higher judiciary is·concerned. Such a position, 
in our view, cannot be the result of any sound process of B 
, interpretation. Likewise, from the observations emerging out 
of the decision rendered in.the Indian Express Newspapers 
(Bombay) Pvt. Ltd. case95, we are satisfied, that the clear intent 
.of the Parliament, While .enacting .the Constitution (99th 
Amendment) Act, was to pr<;>Vide for a nevv process of selection C 
·and appointment of Judges to the higherjudiciary by amending 
the existingprovisions. Naturallyt_herefore, when the amended 
· provl.sion postulating a different procedure is set aside, the 
original process of s~lectic;m arid appointment under the 
0 
· unamended provisions would revive. The above position also 
·emerges from the legal position declated in the Koteswar Vittal 
Karnath case73 • 
252. It is not possible for us to accept the inferential 
contentions, advanced at the hands of the learned cou·nsel for E 
. the respondents by pfacmg reliance on Sections 6, 7 and 8 of 
the General Clauses Act. We say so, because the contention 
· •ofthe learned Solicitor
General was based on the assumption, 
that a judicial verdict setting aside an amendment, has the 
same effect as a repeal of an enactment through a legislation. 
F 
This ·is an unacceptable assumption. When a legislature 
amends or repeals an existing provision, its action is of its 
own free will, and is premised on well founded principles of 
interpretation, including the provisions of the General Causes 
Act. Not so when an amendment/repeal is set aside through a G 
judicial process. It is not necessary to repeat the consideration 
recorded in paragraph 250(ix) above. When a judgment sets 
aside, an amendment or a repeal by the legislature, it is but 
natural that the status quo ante, would stand restored. 
H
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
253. For the reasons recorded hereinabove, we are of 
the view, that in case of setting aside of the impugned 
Constitution (99th Amendment) Act, the provisions of the 
Constitution sought to be amended thereby, would 
automatically revive. 
B VI. CONCLUSIONS: 
254. Article 124A constitutes the edifice of the 
Constitution (99thAmendment)Act, 2014. The striking down 
of Article 124A would automatically lead to the undoing of the 
C amendments made to Articles 124, 1248, 124C, 127, 128, 
217, 222, 224, 224A and 231. This, for the simple reason, 
that the latter Articles are sustainable only if Article 124A is 
upheld. Article 124A(1) provides for the constitution and the 
composition of the National Judicial Appointments 
D Commission (NJAC). Its perusal reveals, that it is composed 
of the following: 
(a) the Chief Justice of India, Chairperson, ex officio; 
(b) two other senior Judges of Supreme Court, next to the Chief 
E Justice of India- Members, ex officio; 
F 
(c) the Union Minister in charge of Law and Justice- Member, 
ex officio; 
(d) two eminent persons, to be nominated - Members. 
If the inclusion of anyone of the Members of the NJAC is 
held to be unconstitutional, Article 124A will be rendered 
nugatory, in its entirety. While adjudicating upon the merits of 
the submissions advanced at the hands of the learned counsel 
G for the rival parties, I have arrived atthe conclusion, that clauses 
(a) and (b) of Article
124A(1) do not provide an adequate 
representation, to the judicial component in the NJAC, clauses 
(a) and (b) of Article 124A(1) are insufficient to preserve the 
primacy of the judiciary, in the matter of selection and 
H
SUPREME COURT ADVOCATES-ON-RECORD 
513 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
appointment of Judges, to the higher judiciary (as also transfer A 
of Chief Justices and Judges, from one High Court to another). 
The same are accordingly, violative of the principle of 
"independence of the judiciary". I have independently arrived 
atthe conclusion, that clause (c) of Article 124A(1) is ultra vires 
the provisions of the Constitution, because of the inclusion of B 
the Union Minister in charge of Law and Justice as an ex officio 
Member of the NJAC. Clause (c)of Article 124A(1 ), in my view, 
impinges upon the principles of "independence of the judiciary", 
as well as, "separation of powers". It has also been concluded 
by me, that clause (d) of Article 124A(1)which provides for the C 
inclusion of two "eminent persons" as Members of the NJAC 
is ultra vi res the provisions of the Constitution, for a variety of 
reasons. The same has also been held as violative of the "basic 
structure" of the Constitution. In the above view of the matter, I D 
am of the considered view, that all the clauses (a) to (d) of 
Article 124A(1) are liable to be set aside. The same are, 
accordingly struck down. In view of the striking down of Article 
124A(1 ), the entire Constitution (99th Amendment) Act, 2014 
is liable to be set aside. The same is accordingly hereby struck E 
down in its entirety, as being ultra vires the provisions of the 
Constitution. 
255. The contention advanced
!'It the hands of the 
respondents, to the effect, that the provisions of the 
Constitution which were sought to be amended by the 
F 
impugned constitutional amendment, would not revive, even if 
the challenge raised by the petitioners was accepted (and the 
Constitution (99th Amendment) Act, 2014, was set aside), has 
been considered under a separate head, to the minutest detail, 
in terms of the submissions advanced. I have concluded, that G 
with the setting aside of the impugned Constitution (99th 
Amendment) Act, 2014, the provisions of the Constitution 
sought to be amended thereby, would automatically revive, and 
the status quo ante would stand restored. 
H
514 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
256. The National Judicial Appointments Commission 
Act, 2014 inter alia emanates from Article 124C. It has no 
independent existence in the absence of the NJAC, constituted 
under Article 124A(1 ). Since Articles 124A and 124C have 
been set aside, as a natural corollary, the National Judicial 
B 
Appointments Commission Act, 2014 is also liable to be set 
aside, the same is accordingly hereby struck down. In view of 
the above, it was not essential for us, to have examined the 
constitutional vi res of individual provisions of the NJAC Act. I 
have all the same, examined the challenge raised to Sections 
C 
5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 
of the NJACActare ultra viresthe provisions of the Constitution. 
VII. ACKNOWLEDGEMENT: 
257. Before parting with the order, I would like to record 
D my appreciation for the ablest assistance rendered to us, by 
the learned counsel who addressed us from both the sides. I 
would also like to extend my deepest sense of appreciation to 
all the assisting counsel, who had obviously whole heartedly 
devoted their time and energy in the preparation of the case, 
E 
and in instructing the arguing counsel. I would be failing in my 
duty, if I do not express my gratitude to my colleagues on the Bench, 
as also, learned counsel who agreed to assist the Bench, during 
the summer vacation'. I therefore, express my gratefulness and 
F 
indebtedness to them, from the
bottom of my heart. 
Note: The emphases supplied in all the quotations in the 
instant judgment, are mine. 
ORDER* 
G 
CHELAMESWAR, J. 1. Very important and far reaching 
questions fall for the consideration of this Court in this batch of 
matters. The constitutional validity of the Constitution (Niilety-
ninth Amendment) Act, 2014 and the National Judicial 
* Ed. Note: Pronounced by Hon'ble Mr. Justice J. Chelameswar for himself 
H 
and Hon'ble Mr. Justice Adarsh Kumar Goel.
SUPREME COURT ADVOCATES-ON-RECORD 
. 515 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Appointments Commission Act, 2014 are under challenge. 
A 
2. When these matters were listed for preliminary hearing 
on 21.04.2015, an objection was raised by Shri Fali S. 
Nariman, learned senior counsel appeciring for one of the 
petitioners, that it is inappropriate for Justice Jagdish Singh 
B 
Khehar to participate in the proceedings as the Presiding 
Judge of this Bench. The objection is predicated on the facts 
: Being the third senior most Puisne Judge of this Court, 
Justice Khehar is a member of the collegium propounded 
under the Second Judges case1 exercising "significant c 
constitutional power" in the matter of selection of Judges, of 
this Court as well as High Courts of this country; by virtue of 
the impugned legislation, until he attains the position of being 
the third senior most Judge of this Court, Justice Khehar would 
cease to enjoy such pow~r; and therefore, there is a possibility D 
of him not being impartial. 
3. When the objection was raised, various counsel 
appearing on behalf of either side expressed different 
viewpoints regarding the appropriateness of participation of 
Justice Khehar in these proceedings. We, therefore, called 
E 
upon learned counsel appearing in this matter to precisely state 
their respective points of view on the question and assist the 
Court in identifying principles of law which are relevant to arrive 
at the right answer to the
objection raised by Shri Fali S. 
Nari man. 
4. The matter was listed again on 22.04.2015 on which 
date Shri Nariman filed a brief written statement2 indicating 
1 Supreme Court Advocates-on-Record Association & Others v. Union of 
F 
India, (1993) 4 sec 441 
G 
2 The position of the Presiding Judge ori this Bench hearing these cases of 
constitutional challenge is not consistent with (and apparently conflicts with) 
his position as a member of the 'Collegium'; and is likely to be seen as such; 
always bearing in .mind that if the Constitution Amendment and the statute 
pertaining thereto are held constitutionally valid and are upheld, the present 
Presiding Judge would no longer be part of the Collegium - The Collegium, 
it must be acknowledged exercises significant constitutional power. 
H
516 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
reasons which according to him make it inappropriate for 
Justice Khehar to preside over the present Bench. 
5. On the other hand, Shri Arvind P. Datar, learned senior 
counsel appearing for one of the petitibners made elaborate 
B submissions explaining the legal principles which require a 
Judge to recuse himself from hearing a particular case and 
submitted that in the light of settled principles of law in this 
regard there is neither impropriety in Justice Khehar hearing 
these matters nor any need for him to do so. 
C 
6. Shri Mukul Rohatgi, learned Attorney General very 
D 
vehemently opposed the suggestion of Shri Nariman and 
submitted that there is nothing in law which demands the 
recusal of Justice Khehar nor has the Union of India any 
objection to Justice Khehar hearing these batch of matters. 
7. Shri Harish N. Salve and Shri K.K. Venugopal, learned 
senior counsel who proposed to appear on behalf of different 
States also supported the stand of the learned Attorney General 
and made independent submissions in support of the 
E conclusion. 
8. After an elaborate hearing of the matter, we came to 
the unanimous conclusion that there is no principle of law which 
warrants Justice Khehar's recusal from the proceedings. We 
recorded the conclusion of the Bench in the proceedings dated 
F 22.04.2015 and indicated that because of paucity of time, the 
reasons for the conclusion would follow later3 
3 Order dated
22.04.2015 insofar as it is relevant reads thus: 
"A preliminary objection, whether Justice Jagdish Singh Khehar should 
G 
preside over this Bench, by virtue of his being the fourth senior most Judge of 
this Court, also happens to be a member of the collegium, was raised by the 
petitioners. Elaborate submissions were made by the learned counsel for 
the petitioners and the respondents. After hearing all the learned counsel, we 
are of the unanimous opinion that we do not see any reason in law requiring 
Justice Jagdish Singh Khehar to recuse himself from hearing the matter. 
Reasons will follow. 
H 
Issue rule. "
SUPREME COURT ADVOCATES-ON-RECORD 
517 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
9. At the outset, we must record that each of the learned A 
counsel who objected to the participation of Justice Khehar in 
these proceedings anchored this objection on distinct 
propositions of law. While Shri Nariman put it on the ground 
of inappropriateness, Shri Santosh Paul invoked the principle 
of bias, on the ground of him having conflicting interests - one B 
in his capacity as member of the Collegium and the other in 
his capacity as a Judge to examine the constitutional validity 
of the provisions which seek to displace the Collegium system. 
In substance, some of the petitioners are of the opinion that 
Justice Khehar should recuse4• 
C 
10. It is one of the settled principles of a civilised legal 
system that a Judge is required to be impartial. It is said that 
the hallmark of a democracy is the existence of an impartial 
Judge. 
D 
11. It all started with a latin maxim Nemo Judex in Re 
Sua which means literally- that no man shall be a judge in his 
own cause. There is another rule which requires a Judge to 
be impartial. The theoretical basis is explained by Thomas 
Hobbes in his Eleventh Law of Nature. He said "If a man be 
E 
. trusted to judge between man and man, it is a precept of the 
law of Nature that he deal equally between them. For without 
that, the controversies of men cannot be determined but by 
war. He therefore, said that is partial in judgment doth what in 
F
him lies, to deter men from the use of judges and arbitrators; 
and consequently, against the fundamental law of Nature, is 
the cause of war.". 
12. Grant Hammond, a former Judge of the Court of 
Appeal of New Zealand and an academician, in his book titled G 
"Judicial Recusal"5 traced out principles on the law of recusal 
' The expression 'recuse' according to the New Oxford Dictionary English 
means - (the act of a Judge) to excuse himself from a case because of 
possible conflict of interest"for lack of impartiality. 
5 R. Grant Hammond, Judicial Recusal: Principles, Process and Problems, 
(Hart Publishing, 2009). 
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(2015] 13S.C.R. 
A 
as developed in England in the following words :-
B 
c 
D 
'The central feature of the early English common 
law on recusal was both simple and highly 
constrained: a judge could only be disqualified for 
a direct pecuniary interest. What would today be 
termed 'bias', which is easily the most controversial 
ground for disqualification, was entirely rejected as 
a ground for recusal of judges, although it was not 
completely dismissed in relation to jurors. 
This was in marked contrast to the relatively 
sophisticated canon law, which provided for recusal 
if a judge was suspected of partiality because of 
consanguinity, affinity, friendship or enmity with a 
party, or because of his subordinate status towards . 
a party or because he was or h_ad been a party's 
advocate." 
He also pointed out that in contrast in the United States 
of America, the subject is covered by legislation. 
E 
13. Dimes v. Proprietors of Grand Junction Canal, 
(1852) 10 ER 301, is one of the earliest.cases where the 
question of disqualification of a Judge was considered. The 
ground was that he had some pecuniary interest in the matter. 
We are not concerned with the details of the dispute between 
F 
the parties to the case. Lord Chancellor Cottenham heard the 
appeal against an order of the Vice-Chancellor and confirmed 
the order. The order went in favour of the defendant company. 
A year later, Dimes discovered that Lord Chancellor 
G Cottenham
had shares in the defendant company. He 
petitioned the Queen for her intervention. The litigation had a 
long and chequered history., the details of which are not material 
for us. Eventually, the matter reached the House of Lords. The 
House dismissed the appeal of Di_mes on the ground that 
H setting aside of the order of the Lord Chancellor would still
SUPREME COURT ADVOCATES-ON-RECORD 
519 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
leave the order of the Vice-Chancellor intact as Lord Chancellor A 
had merely affirmed the order of the Vice-Chancellor. However, 
the House of Lords held that participation of Lord Cottenham 
in the adjudicatory process was not justified. Though Lord 
Campbell observed: 
"No one can suppose that Lord Cottenham could 
be, in the remotest degree, Influenced by the interest 
he had in this concern: but, my Lords, it is of the 
last importance that the maxim that no man is to be 
a judge in his own cause be held sacred. And that 
is not to be confined to a cause in which he is a 
party, but applies to a cause in which he has an 
interest .... This will be a lesson to all inferior 
tribunals to take care not only that in their decrees 
they are not influenced by their personal interest, 
but to avoid the appearance of labouring under such 
an influence." 
14. Summing up the principle laid down by the 
abovementioned case, Hammond observed as follows: 
"The 'no-pecuniary interest' principle as expressed 
in Dimes requires a judge to be automatically 
disqualified when there is neither actual bias nor 
even an apprehension of bias on the part of that 
judge. The fundamental philosophical underpinning 
of Dimes is therefore predicated on a conflict of 
interest approach." 
B 
c 
D 
E 
F 
15. The next landmark case on the question of "bias" is 
Regina v. Gough, (1993)AC 646. Gough was convicted for G
an offence of conspiracy to rob and was sentenced to 
imprisonment for fifteen years by the Trial Court. It was a trial 
by Jury. After the conviction was announced, it was brought to 
the notice of the Trial Court that one of the jurors was a neighbour 
of the convict. The convict appealed to the Court of Appeal 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
unsuccessfully. One of the grounds on which the conviction 
was challenged was that, in view of the fact that one of the 
jurors being a neighbour of the convict presented a possibility 
of bias on her part and therefore the conviction is unsustainable. 
The Court of Appeal noticed that there are two lines of authority 
B 
propounding two different tests for determining disqualification 
c 
of a Judge on the ground of.bias: 
(1) "real danger" test; and 
(2) "reasonable suspicion" test. 
The Court of Appeal confirmed the conviction by applying 
the "real danger" test. 
16. The matter was carried further to the House of Lords. 
17. Lord Goff noticed that there are a series of authorities 
D which are "not only large in number but bewildering in their 
effect". After analyzing the judgment in Dimes (supra), Lord 
Goff held: 
"In such a case, therefore, not only is it irrelevant 
E 
that there was in fact no bias on the part of the 
tribunal, but there is no question of investigating, 
from an objective point of view, whether there was 
any real likelihood of bias, or any reasonable 
suspicion of bias, on the facts of the particular case. 
F 
The nature of the interest is such that public 
confidence in the administration of justice requires 
that the decision should not stand." 
In other words, where a Judge has a pecuniary interest, 
G no further inquiry as to whether there was a "real danger" or 
"reasonable suspicion" of bias
is required to be undertaken. 
But in other cases, such an inquiry is required and the relevant 
test is the "real danger'' test. 
"But in other cases, the inquiry is directed to the 
H 
question whether there was such a degree of
SUPREME COURT ADVOCATES-ON-RECORD 
521 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
. possibility of bias on the part of the tribunal that the 
A 
court will not allow the decision to stand. Such a 
question may arise in a wide variety of 
circumstances. These include .... cases in which 
the member of the tribunal has an interest in the 
outcome of the proceedings, which falls short of a 
direct pecuniary interest. Such interests may vary 
widely in their nature, in their effect, and in their 
relevance to the subject matter of the proceedings; 
and there is ho rule .... that the possession of such 
an interest automatically disqualifies the member 
of the tribunal from sitting. Each case falls to be 
considered on its own facts. " 
18. The learned Judge examined various important cases 
on the subject and finally concluded: 
"Finally, for the avoidance of doubt, I prefer to state 
the test in terms of real danger rather than real 
likelihood, to ensure that the court is thinking in 
terms of possibility rather than probability of bias. 
Accordingly, having ascertained the relevant 
circumstances, the court should ask itself whether, 
having regard to those circumstances, there was a 
real danger of bias on the part of the relevant 
member of the tribunal in question, in the sense that 
he might unfairly regard (or have unfairly regarded) 
with favour, or disfavour, the case of a party to the 
issue under consideration by him." 
19. Lord Woolf agreed with Lord Goff in his
separate 
judgment. He held: 
· 
. "There is only one established special cate19ory and 
that exists where the tribunal has a pecuniary or 
proprietary interest in the subject matter of the 
proceedings as in Dimes v. Proprietors of Grand 
B 
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A 
B 
c 
Junction Canal, 3 H.L. Case 759. The courts 
should hesitate long before creating any other 
special category since this will immediately create 
uncertainty as to what are the parameters of that 
category and what is the test to bf? applied in tb.e 
case of that category. The real danger test is quite 
capable of producing the right answer and ensure 
that the purity of ju~tice is maintaine.d across the 
range of situations.where bias may exist." 
20. In substance, the Court held that in cases where the 
Judge has a pecuniary interest in the outc~me of the 
proceedings, his disqualification is automatic. No further 
enquiry whether such an interest lead to 9 "real dang~r" or ga'v'.e •.. 
rise to a "reasonable suspicion" is necessary.· In cases Of 
o other interest, the test to determille Whether the· Judge is • · · 
disqualified to hear the c;ase is the "real danger:" .test. 
21. The Pinochet6 case added 9ne more category to 
the cases of automatic disqualification for a judge. Pinochet, 
a.former Chilean dictator, was sought to. be arrested and 
E extradited from England for his conduct during his incumbency 
in office. The issue was whether Pinochet was entitled to 
immunity from such arrest.or extradition. Amnesty International, 
a charitable organisation, participated in the said proceedings 
F with the leave of the Court. The House of Lords held that 
Pinochet did not enjoy any such immunity. Subsequently, jt .
came to light that Lord Hoffman, one of the members of the. 
Board which heard the Pinochet case, was a Director and 
Chairman of a company (known asA.l.C.L.) which was closely 
G linked with Amnesty International. An application was made . 
to the House of Lords to set aside the earlier judgment on the 
ground of bias on the part of Lord Hoffman. 
· 
6 Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte . 
H 
Pinochet Ugarte, (1999) 1 All E.R. 577
. :suPREMECOURTADV0CATES-ON-RECORD 
. 
523 
ASSOCIATION v. U.O.L[CHELAMESWAR, J.] 
22. _The House· of Lords examined the following A 
questions; 
(i) Whether the connection of Lord Hoffman with Amnesty 
International required him to be automatic 
disqualified? 
(ii) Whether an enquiry into the question wl:lether cause 
of -Lord Hoffrnan'.s connection with Amnesty 
-f. 
: 
. 
• 
• ·.• 
• 
' 
·' 
International posed a real danger or caused a 
.· ·reawnable,apprehension that his judgment is biased 
- is necessary? 
(iii) Did it make any difference that Lord Hoffman was 
only a member of a company associated with Amnesty 
International which was in fact interested in securing 
the extradition of SenatorPinochet? 
23. Lord W'ilkinson summarised the principles on which 
a Judge is disqualified to hear a case. As per Lord Wilkinson -
"The fundamental principle is that a man may not 
be a judge in his own cause. This principle, as 
developed by the courts, has two very similar but 
not identical implic;ations. First it may be applied 
literally: if a judge is in fact a P(3rtY to the litigation or 
has a financial or proprietary interest in its outcome 
then he is indeed sitting as a judge in his own cause. 
In that case, the mere fact that he is a party to the 
action or has a financial or proprietary interest in 
its outcome is sufficient to cause his automatic 
disqualification. 
The second application of the 
principle is where a judge is not a party to the suit 
and does not
have a financial interest in its outcome, 
but in some other way his conduct or behaviour may 
give rise to a suspicion that he is not impartial, for 
B 
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D 
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F 
G 
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[2015] 13 S.C.R. 
A 
example because of his friendship with a party. 
This second type of case is not strictly speaking an 
application of the principle that a man must not be 
judge in his own cause, since the judge will not 
normally be himself benefiting, but providing a 
B 
benefit for another by failing to be impartial. 
In my judgment, this case falls within the first 
category of case, viz. where the judge is disqualified 
because he is a judge in his own cause. In such a 
c 
case, once it is shown that the judge is himself a 
party to the cause, or has a relevant interest in its 
subject matter, he is disqualified without any 
investigation into whether there was a likelihood or 
suspicion of bias. The mere fact of his interest is 
D 
sufficient to disqualify him unless he has made 
sufficient disclosure. 
And framed the question; 
" .... the question then arises whether, in non-
E 
financial litigation, anything other than a financial 
or proprietary interest in the outcome is sufficient 
automatically to disqualify a man from sitting as 
judge in the cause." 
He opined that although the earlier cases have "all dealt 
F with automatic disqualification on the grounds of pecuniary 
interest, there is no good reason in principle for so limiting 
automatic disqualification." 
24. Lord Wilkinson concluded thatAmnesty International 
G and its associate company known as A.l.C.L., had a non-
pecuniary interest established that Senator Pinochet
was not 
immune from the process of extradition. He concluded that, 
" .... the matter at issue does not relate to money or economic 
H
SUPREME COURT ADVOCATES-ON-RECORD 
525 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
advantage but is concerned with the promotion of the cause, A 
the rationale disqualifying a judge applies just as much if the 
judge's decision will lead to the promotion of a cause in which 
the judge is involved together with one of the parties" 
25. After so concluding, dealing with the last question, 
8 
whether the fact that Lord Hoffman was only a member of 
A.l.C.L. but not a member of Amnesty International made any 
difference to the principle, Lord Wilkinson opined that even 
though a judge may not have financial interest in the outcome 
of a case, but in some other way his conduct or behaviour may c 
give rise to a suspicion that he is not impartial and helctthat if 
the absolute impartiality of the judiciary is to be maintained, 
there must be a rule which automatically disqualifies a judge 
who is involved, whether personally or as a director of a 
company, in promoting the same causes in the same D 
organisation as is a party to the suit. There is no room for fine 
distinctions. This aspect of the matter was considered in P.D. 
Dinakaran case7• 
26. From the above decisions, in our opinion, the 
following principles emerge; 
E 
(i) If a Judge has a financial interest in the outcome of a 
case, he is automatically disqualified from hearing the 
case. 
(ii) In cases where the interest of the Judge in the case is 
F 
other than financial, then the disqualification is not 
automatic
but an enquiry is required whether the 
existence of such an interest disqualifies the Judge 
tested in the light of either on th_e principle of "real G 
danger'' or "reasonable apprehension" of bias. 
7 P.O. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 SCC 380, paras 
49 to 53. 
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[2015] 13 S.C.R. 
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(iii) The Pinochet case added a new category i.e that 
the Judge is automatically disqualified from hearing a 
case where the Judge is interested in a cause which 
is being promoted by one of the parties to the case. 
8 
27. It is nobody's case that, in the case at hand, Justice 
Khehar had any pecuniary interest or any other interest falling 
under the second of the above-mentioned categories. By the 
very nature of the case, no such interest can arise at all. 
28. The question is whether the principle of law laid down 
C 
in Pinochet case is attracted. In other words, whether Justice 
Khehar can be said to be sharing any interest which one of the 
parties is promoting. All the parties to these proceedings 
claim to be promoting the cause of ensuring the existence of 
an impartial and independent judiciary. The only difference of 
D opinion between the parties is regarding the process·bywhich 
such a result is to be achieved. Therefore, it cannot be said 
that Justice Khehar shares any interest which any one of the 
parties to the proceeding is seeking to promote. 
E 
29. The implication of Shri Nariman's submission is that 
Justice Khehar would be pre-determined to hold the impugned 
legislation to be invalid. We fail to understand the stand of the 
petitioners. If such apprehension of the petitioners comes true, 
the beneficiaries would be the petitioners only. The grievance, 
F 
if any, on this ground should be on the part
of the respondents. 
30. The learnedAttomeyGeneral appearing for the Union 
of India made an emphatic statement that the Union of India 
has no objection for Justice Khehar hearing the matter as a 
G presiding Judge of the Bench. 
H 
31. No precedent has been brought to our notice, where 
courts ruled at the instance of the beneficiary of bias on the 
part of the adjudicator, that a judgment or an administrative
SUPREME COURT ADVOCATES-ON-RECORD 
527 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
decision is either voidable or void on the ground of bias. On 
A 
the other hand, it is a well established principle of law that an 
objection based on bias of the adjudicator can be waived. 
Courts generally did not entertain such objection raised 
belatedly by the aggrieved party. 
"The right to object to a disqualified adjudicator may 
be waived, and this may be so even where the 
disqualification is statutory.8 The court normally 
insists that the objection shall be taken as soon as 
the party prejudiced knows the facts which entitle 
him to object. If, after he or his advisers know of 
the disqualification, they let the proceedings 
continue without protest, they are held to have 
waived their objection and the determination cannot 
be challenged."9 
In our opinion, the implication of the above principle is 
that only a party who has suffered or likely to suffer an adverse 
adjudication because of the possibility of bias on the part of 
the adjudicator can raise the objection. 
32. The significant power as described by Shri Nariman 
does not inhere only to the members of the Collegium, but 
inheres in every Judge of this Court who might be called upon 
B 
c 
D 
E 
to express his opinion regarding the proposals of various 
appointments of the High Court Judges, Chief Justices or F 
Judges of this Court, while the members of the Collegium are 
required to exercise such "significant power"
with respect to 
•Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. (1865) 
1Q.B.84. 
9 R V. Byles ex p. Hollidge (1912) 77 J.P. 40; R. v. Nailsworth Licensing 
G 
Justices exp. Bird [1953] 1W.L.R.1046; R v. Lilydale Magistrates Court exp. 
Ciccone (1973] V.R. 122; and see R. v. Antrim Justices (1895] 2 l.R. 603; 
Tolputt (H.) & Co. Ltd. v. Mole [1911] 1 K.B. 836; Corrigan v. Irish Land 
Commission (1977] l.R. 317. 
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[2015] 13 S.C.R. 
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each and every appointment of the above-mentioned 
categories, the other Judges of this Court are required to 
exercise such "significant power", at least with respect to the 
appointments to or from the High Court with which they were 
earlier associated with either as judges or Chief Justices. The 
B argument of Shri Nariman, if accepted would render all the 
Judges of this Court disqualified from hearing the present 
controversy. A result not legally permitted by the "doctrine of 
necessity". 
c 
33. For the above-mentioned reasons, we reject the 
D 
submission that Justice Khehar should recuse from the 
proceedings. 
JUDGMENT 
CHELAMESWAR, J. 1. We the members of the 
judiciary exult and frolic in our emancipation from the other 
two organs of the State. But have we developed an alternate 
constitutional morality to emancipate us from the theory of 
E checks and balances, robust enough to keep us in control 
from abusing such independence? Have we acquired 
independence greater than our intelligence maturity and nature 
could digest? Have we really outgrown the malady of 
dependence or merely transferred it from the political to judicial 
F 
hierarchy? Are we nearing such ethical and constitutional 
disorder that frightened civil society runs back to Mother Nature 
or some other less wholesome authority to discipline us? Has 
all the independence acquired by the judicial branch since 5th 
G October, 1993 been a myth - a
euphemism for nepotism 
enabling inter alia promotion of mediocrity or even less 
occasionally- are questions at the heart of the debate in this 
batch of cases by which the petitioners question the validity of 
H
SUPREME COURT ADVOCATES-ON-RECORD 
529 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
the Constitution (99th Amendment) Act, 2014 and The National A 
Judicial Appointments Commission Act, 2014 (hereinafter 
referred to as the "AMENDMENT" and the "ACT", for the sake 
of convenience). 
2. To understand the present controversy, a look at the 
8 
relevant provisions of the Constitution of India, as they stood 
prior to and afterthe impugned AMENDMENT, is required. 
Prior to theAMENDMENT 
Article 124. Establishment and constitution of 
Supreme Court 
(1) There shall be a Supreme Court of India constituting 
of a Chief Justice of India and, until Parliament by law 
prescribes a larger number, of not more than thirty other 
Judges. 
(2) Every Judge of the Supreme Court shall be appointed 
c 
D 
by the President by warrant under his hand and seal after 
consultation with such of the Judges of the Supreme 
Court and of the High Courts in the States as the 
E 
President may deem necessary for the purpose and shall 
hold office until he attains the age of sixty five years: 
Provided that in the case of appointment of a Judge other 
than the chief Justice, the chief Justice of India shall 
always be consulted: 
F 
)()()()( 
)()()()()( 
)()()()()( 
)()()()()( 
Article 217. Appointment and conditions of the 
office of a Judge of a High Court 
(1) Every Judge of a High Court shall be appointed by G 
the President by warrant under his hand and seal after 
consultation with the Chief Justice of
India, the Governor 
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[2015] 13 S.C.R. 
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of the State, and, in th~ case of appointment of a Judge 
other than the chief Justice, the chiefJustice of the High 
court, ............... .. 
xxxx 
)()()()()( 
)()()()()( 
)()()()()( 
B 
3. The pre AMENDMENT text stipulated that the 
President of India shall appoint Judges of this Court and High 
Courts of this country (hereinafter the CONSTITUTIONAL 
COURTS) in consultation with the Chief Justice of India 
(hereinafter CJI) and other constitutional functionaries 
C 
indicated in Article 124 and 217. In practice, the appointment 
process for filling up vacancies was being initiated by the Chief 
Justice of the concerned High Court or the CJI, as the case 
may be. Such a procedure was stipulated by a memorandum 
D 
E 
F 
G 
H 
of the Government of lndia1• 
After the AMENDMENT 
4. Articles 124 and 217 insofar as they are relevant for 
our purpose read 
"Article 124 
xxxxx 
)()()()()( 
xxxx 
(2) Every Judge of the Supreme Court shall be appointed 
by the President by warrant under his hand and seal on 
the recommendation of the National Judicial 
Appointments Commission referred to in article 124A 
and shall hold office until he attains the age of sixty-five 
years. 
Article 217. Appointment and conditions of the 
office of a Judge of a High Court-(1) Every Judge of 
a High Court shall be appointed by the President by 
warrant under his hand and seal on the recommendation 
of the National Judicial Appointments Commission 
'The
details of which are already noted in the judgment of my brother Khehar, J.

SUPREME COURT ADVOCATES-ON-RECORD 
531 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
referred to in article 124A, and shall hold office, in the A 
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." 
5. TheAMENDMENT inserted Articles 124A, 1248 and B 
124C. These provisions read: 
"124A (1) There shall be a Commission to be known 
as the National Judicial Appointments Commission 
consisting of the following, namely:-
( a) the Chief Justice of India, Chairperson, ex C 
officio; 
(b) two other senior Judges of the Supreme Court 
next to the Chief Justice of India - Members, ex 
officio; 
D 
( c) the Union Minister in charge of Law and Justice 
- Member, ex officio 
(d). two eminent persons to be nominate? by the 
committee consisting of the Prime Minister, the 
E 
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: 
F 
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. 
G 
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B 
c 
D 
E 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
(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 
Judges of the Supreme Court and Chief Justices and 
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. 
Consequent amendments to other Articles are also made, 
details are not necessary. 
6. The crux of the AMENDMENT is that the institutional 
mechanism by which selection and appointment process of 
the Judges of CONSTITUTIONAL COURTS was undertaken 
came to be substituted by a new body called the National
SUPREME COURT ADVOCATES-ON-RECORD 
533 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Judicial Appointments Commission (hereinafter referred to as A 
NJAC). It consists of six members. The CJI is its ex-officio 
Chairperson. Two senior Judges of the Supreme Court next 
to the CJI and the Union Law Minister are also ex-officio 
members, apart from two eminent persons to be nominated 
by a Committee contemplated in Article 124A (1 )(d). 
B 
7. Under Article 124B, the NJAC is charged with the duty 
of recommending persons of ability and integrity for 
appointment as Chief Justice of India, Judges of the Supreme 
Court, Chief Justices of High Courts and other Judges of High c 
Courts and of recommending transfer of Chief Justices and 
other Judges of High Courts from one High Court to any other 
High Court. 
8. Article 124C authorizes Parliament to regulate by law, 
the procedure for the appointment of Chief Justice and other D 
Judges of the Supreme Court etc. It also empowers the NJAC 
to make regulations laying down the procedure for the 
discharge of its functions. 
9. Pursuant to the mandate of Article 124C, Parliament E 
made the ACT. For the present, suffice it to note that though 
the amended text of the Constitution does not so provide, 
Section 6(6)2 of the ACT provides that the NJAC shall not 
recommend a person for appointment, if any two members of 
the Commission do not agree for such recommendation. 
F 
10. The AMENDMENT made far reaching changes in 
the scheme of the
Constitution, insofar as it relates to the 
selection process of Judges of the CONSTITUTIONAL 
. COURTS. The President is no more obliged for making 
G 
appointments to CONSTITUTIONAL COURTS to consult the 
1 
2 Section 6 (6). "The Commission shall not recommend a person for 
appointment under this section if any two members of the Commission do 
I 
not agree for such recommendation." 
I 
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[2015] 13 S.C.R. 
A 
CJI, the Chief Justices of High Courts and Governors of the 
States but is obliged to consult the NJAC. 
11. The challenge to the AMENDMENT is principally on 
the ground that such substitution undermines the independence 
8 
of the judiciary. It is contended that independence of judiciary 
is a part of the basic structure of the Constitution and the 
AMENDMENT is subversive of such independence. Hence, it 
is beyond the competence of the Parliament in view of the law 
declared by this Court in His Holiness Kesavananda Bharati 
C Sripadagalvaru v. State of Kera/a & Another, ( 1973) 4 SCC 
225 (hereinafter referred to as Bharati case). 
12. Fortunately there is no difference of opinion between 
the parties to this /is regarding the proposition that existence 
of an independent judiciary is an essential requisite of a 
D democratic Republic. Nor is there any difference of opinion 
, regarding the proposition that an independent judiciary is one 
of the basic features of the Constitution of India. 
13. The only issue is what is the permissible procedure 
E or mechanism which would ensure establishment of an 
independent judiciary. The resolution of the issue requires 
examination of the following questions; 
F 
G 
H 
(i) Whether the mechanism established by the 
Constituent Assembly for the appointment of Judges 
of the CONSTITUTIONAL COURTS is the only 
permissible mode for securing an independent 
judiciary or can there be
alternatives? 
(ii) If there can be alternatives, whether the mechanism 
(NJAC) sought to be established by the AMENDMENT 
transgresses the boundaries of the constituent power? 
14. In the last few weeks, after the conclusion of hearing 
in this batch of matters, I heard many a person - say that the
SUPREME COURT ADVOCATES-ON-RECORD 
535 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
whole country is awaiting the judgment. Some even said the A 
whole world is awaiting. There is certainly an element of 
hyperbole in those statements. Even those who are really 
waiting, I am sure, have concerns which vary from person to 
person. Inquisitiveness regarding the jurisprudential and 
political correctness, impact on the future of the judiciary, 
B 
assessment of political and personal fortunes etc. could be 
some of those concerns. I am only reminded of Justice Fazal 
Ali's view in S.P Gupta v. Union of India & Ors. 3 AIR 1982 
SC 149 {for short S.P Gupta case) that the issue is irrelevant 
for the masses and litigants. They only want that their cases C 
should be decided quickly by judges who generate confidence. 
The question is - what is the formula by which judges - who 
can decide cases quickly and also generate confidence in the 
masses and litigants - be produced. What are the qualities D 
which make a Judge decide cases quickly and also generate 
confidence? 
3 "Para 520. There is another fact of life which, however unpleasant, cannot 
be denied and this is that precious little are our masses or litigants concerned 
with which Judge is appointed or not appointed or which one is continued or 
not continued. The high sounding concept of independence of judiciary or 
primacy of one or the other of the Constitutional functionaries or the mode of 
effective consultation are
matters of academic interest in which our masses 
are least interested. On the other hand, they are mainly concerned with 
dangerous forces at work and evils reflected in economic-pressures, 
inflationary tendencies, gruelling poverty, emancipation of women, 
maintenance of law and order, food and clothing, bread and butter, and above 
all the serious problem of unemployment, 
521. It is only a sizeable section of the intellectuals consisting of the press 
and the lawyers who have made a prestigious issue of the independence of 
judiciary. I can fully understand that lawyers or other persons directly 
connected with the administration of justice may have a grievance however 
ill-founded that proper selection of Judges or interference with the 
appointment of Judges strictly according to constitutional provisions may 
mar the institution of judiciary and therefore they may to some extent be 
justified in vindicating their rights. But at the same time, however biting or 
bitter, distasteful and diabolical it may seem to be, the fact remains that the 
masses in general are not at all concerned with these legal niceties and so 
far as administration of justice is concerned they merely want that their 
cases should be decided quickly by Judges who generate confidence." 
E 
F 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
15. Deep learning in law, incisive and alert mind to quickly 
grasp the controversy, energy and commitment to resolve the 
problem are critical elements which make a Judge efficient 
and enable him to decide cases quickly. However, every Judge 
who has all the above-mentioned qualities need not 
B automatically be a Judge who can ·generate confidence in the 
litigants unless the litigant believes that the Judge is absolutely 
fair and impartial. 
16. Belief regarding the impartiality of a Judge depends 
c upon the fact that Judge shares no relationship with either of 
the parties to the litigation. Relationship in the context could 
be personal, financial, political or even philosophical etc. When 
one of the parties to the litigation is either the State or one of 
its instrumentalities, necessarily there is a relationship. 
D 
Because, it is the State which establishes the judiciary. Funds 
· required to run the judicial system including the salaries and 
allowances of Judges necessarily flow from the State 
exchequer. 
17. Democratic societies believe that the State not only 
E 
has authority to govern but also certain legally enforceable 
obligations to its subjects. The authority of judicial fora to 
command the State to discharge its obligations flows from the 
existence of such enforceable obligations. To generate 
F confidence that the judicial fora decide controversies brought 
to their consideration impartially,
they are required to be 
independent. Notwithstanding the fact that they are established 
and organized by the State as a part of its larger obligation to govern. 
18. Judiciary is the watchdog of the Constitution and its 
G fundamental values. It is also said to be the lifeblood of 
constitutionalism in democratic societies. At least since 
Marbury v. Madison4 the authority of courts functioning under 
4 5 u.s 137 (1803) 
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SUPREME COURT ADVOCATES-ON-RECORD 
537 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
a written democratic constitution takes within its sweep the A 
power to declare unconstitutional even laws made by the 
legislature. It is a formidable authority necessarily implying an 
awesome responsibility. A wise exercise of such power 
requires an efficient and independent Judge (Judicial System). 
In the context, wisdom is to perceive with precision whether B 
the legislative action struck the constitutionally demanded 
balance between the larger interests of society and liberties 
of subjects. 
19. Independence of such fora rests on two integers - c 
independence of the institution and of individuals who man 
the institution. 
"(Judicial independence) connotes not merely a 
state of mind or attitude in the actual exercise of 
judicial functions, but a status or relationship to 
others, particularly to the executive branch of 
government, that rests on objective conditions or 
guarantees. 
* 
* 
* 
It is generally agreed that judicial independence 
involves both individual and institutional 
relationships: the individual independence of a 
judge, as reflected in such matters as security of 
tenure, and the institutional independence of the 
court or tribunal over which he or she presides, as 
reflected in its institutional or administrative 
relationships to the executive and legislative 
branches of Government."5 
20. It is not really necessary for me to trace the entire 
history of
development of the concept independence of the 
5 Supreme Court of Canada in Valente v. Queen. (1985) 2 SCR 673 
D 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
judiciary in democratic societies. It can be said without any 
fear of contradiction that all modern democratic societies strive 
to establish an independent judiciary. The following are among 
the most essential safeguards to ensure the independence of 
the judiciary- Certainty of tenure, protection from removal from 
B 
office except by a stringent process in the cases of Judges 
found unfit to continue as members of the judiciary, protection 
of salaries and other privileges from interference by the 
executive and the legislature, immunity from scrutiny either by 
the Executive or the Legislature of the conduct of Judges with 
C ·respect to the discharge of judicial functions except in cases 
of alleged misbehaviour, immunity from civil and criminal liability 
for acts committed in discharge of duties, protection against 
criticism to a great degree. Such safeguards are provided 
0 
with a fond hope that so protected, a Judge would be absolutely 
independent and fearless in discharge of his duties. 
21. Democratic societies by and large recognize the 
necessity of the above mentioned protections for the judiciary 
and its members. Such protections are either entrenched in 
E the Constitution or provided by legislation. A brief survey of 
the constitutions of a few democratic Republics to demonstrate 
the point; 
22. Prior to 1701, the British Crown had the power to 
F 
dismiss the judges at will. The Act of Settlement, 1701
6 
removed from the Crown the power to dismiss Judges of the 
Superior Courts at will. It enabled the Monarch to remove 
Judges from office upon address of both Houses of Parliament. 
Interestingly till 1720 Judges ceased to hold office on the death 
G of the Monarch who issued Commissions. A 1720 enactment 
provided that Judges should continue in office for six months 
after demise of the monarch. In 1761 a statute provided that 
' " ••• judges commissions be made quamdiu se bene gesserint, and their 
salaries ascertained and established; but upon the address of both houses 
of parliament it may be lawful to remove them." This clause has been 
H 
repealed by_
SUPREME COURT ADVOCATES-ON-RECORD 
539 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
commissions of the Judges shall remain in full force and effect A 
during good behaviour notwithstanding the demise of His 
Majesty or of any of his heirs and successors - thus granting a 
life tenure. According to Blackstone, 
"(I) In this distinct and separate existence of the 
judicial power in a peculiar body of men, nominated 
indeed, but not removable at pleasure by the 
Crown, consists one main preservative of the public 
liberty which cannot subsist long in any State unless 
the administration of common justice be in some 
degree separated both from the legislative and 
from the executive power."7 
23. Article Ill (1)8 of the American Constitution stipulates 
that Judges of the Supreme Court and also the inferior Courts 
established by Congress shall hold their office during good 
behavior and they cannot be removed except through the 
process of impeachment9• It also stipulates that they shall 
receive a compensation for their services which shall not be 
diminished during their continuance in office. 
24. Section 7210 of the Constitution of Australia stipulates 
' Sir. William Blackstone's, Commentaries on the Laws of England, (1765) 
Vol. I p.269 
'Article Ill Section I. The judicial power of the United States, shall be vested 
B 
c 
D 
E 
in one Supreme Court, and in such inferior courts as the Congress may from 
time to time ordain and establish. T.he judges, both of the supreme and
F 
inferior courts, shall hold their offices during go9d behaviour, and shall, at 
stated times, receive for their services, a compensation, which shall not be 
diminished during their continuance in office. 
9 Article II Section 4. The President, Vice President and ail civil officers of the 
United States, shall be removed from office on impeachment for, and 
conviction of, treason, bribery, or other high crimes and misdemeanors, 
10 Section 72. Judges' appointment, tenure, and remuneration: 
The Justices of the High Court ... . 
(ii) shall not be removed except ...... on an address from both Houses 
of the Parliament in the same session, praying for such removal on the 
ground of proved misbehaviour or incapacity; 
(iii) shall receive such remuneration as the Parliament may fix; but 
G 
the remuneration shall not be diminished during their continuance in office. H
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A that Judges of the High Court and other Courts·created by 
Parliament shall be appointed for a term expiring upon the 
Judge attaining the age of seventy years and shall not be 
removed except on an address from both Houses of the 
Parliament in the same session praying for removal of the 
B Judge on the ground of proved misbehaviour or incapacity. It 
also stipulates that remuneration of Judges shall not be 
diminished during their continuance in office. 
25. When India became a Sovereign Republic, we did 
c not adopt the British Constitutional system in its entirety- though 
India had been a part of the British Empire Ever since, the 
British Crown started asserting sovereignty over the territory 
of India, the British Parliament made Acts which provided legal 
framework for the governance of India from time to time known 
o as Government of India Acts. The last of which was of 1935. 
E 
Canada11 and Australia12 which were also part of the British 
Empire continue to be governed by Constitutions enacted by 
the British Parliament. We framed a new Constitution through 
a Constituent Assembly. 
26. Members of the ConstituentAssembly in general and 
the Drafting Committee in particular were men and women of 
great political experience, deep insight into human nature, and 
a profound comprehension of the complex problems of Indian 
F 
Society. They spearheaded the freedom movement. They 
were well versed in history, ·law,
political sciences and 
democratic practices. They examined the various constitutional 
systems in vogue in different democratic societies inter alia 
American, Australian, British and Canadian and adopted 
G 
diff~rent features from different constitutional systems after 
suitably modifying them to the needs of Indian society. 
H 
11 The British North America Act. 1867 renamed by the Amendment in 1982 as 
the Constitution Act. 1867 
" Commonwealth of Australia Constitution Act. 1900.
SUPREME COURT ADVOCATES-ON-RECORD 
541 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
27. Framers of the Constitution had the advantage of an A 
intimate knowledge of the functioning of the Federal Court, 
the High Courts and the Subordinate Courts of this country 
under the Government of India Act, 193513• ·Though there 
several distinctions in the architecture of the judicial systems 
under each of the above-mentioned regimes, one feature 
B 
common to all of them is that appointment of Judges is by the 
· Executive. Such constitutional design is essentially a legacy 
of the British constitutional system where the Executive had 
(till 2006) the absolute authority to appoint Judges. 
28. Judges, in any country, are expected to maintain a 
higher degree of rectitude compared to the other public office 
holders. The expectation with respect to the Indian Judiciary 
c 
is ·no different. The Constitution therefore provides 
extraordinary safeguards and privileges for Judges of Q 
CONSTITUTIONAL COURTS to insulate them substantially 
from the possibility of interference by the political-executive 
as well as elected majorities of the people's representatives14• 
L a Judge's appointment and continuance in office is not 
subject to any election process; 
E 
13 The existing constitution and organization of constitutional courts in this 
country is discussed in some detail by Justice Verma in the Second Judges 
case at paras 444, 445, 446. 
444. 
The Government of India Act, 1919
provided in Section 101 for the 
Constitution of High Courts; and the appointment of the Chief Justice and the 
F 
permanent Judges was in the absolute discretion of the Crown, subject only 
the prescribed conditions of eligibility. The tenure of their office, according to 
Section 102, was dependent entirely on the Crown's pleasure. 
xxxxx 
xxxxxx 
xxxxxx 
xxxxx 
445. Then, in the Government of India Act, 1935, provision for the 
establishment and Constitution of the Federal Court was made in Section 
200, while the Constitution of High Courts was provided for in Section 220. 
G 
xxxxx 
xxxxxx 
xxxxxx 
xxxxx 
446. Thus, even under the Government of ln~ia Act, 1935, appointments of 
Judges of the Federal Court and the High Courts were in the absolute 
discretion of the Crown or, in other words, of the executive, with no specific 
provision for consultation with the Chief Justice in the appointment process. 
14 L Chandra Kumar& Ors v. Union oflndia & Ors., (1997) 3 SCC 261, para 78 
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A 
II. the termination of judicial appointment {during 
subsistence of the tenure) is made virtually impossible. 
The Constitution prescribes that' a Judge of 
CONSTITUTIONAL COURT shall not be removed from office 
8 
except by following an elaborate procedure of impeachment 
prescribed under Article 124(4 )15 which is applicable even for 
High Court Judges by virtue of Article 217(1 )(b)16• 
c 
D 
Ill. The salaries, privileges, allowances and rights in 
respect of leave of absence and pension of Judges of 
the CONSTITUTIONAL COURTS may be determined 
by or under law made by Parliament. But, they cannot 
be varied to the disadvantage of the Judge17 after the 
appointment. 
IV. The salary, allowances and pension payable to Judges 
of CONSTITUTIONAL COURTS are charged on the 
Consolidated Fund of India or the Consolidated Fund 
of the concerned State18• 
Further under Articles 
15 Article 124(4) A Judge of the Supreme Court shall not be removed from his 
E 
office except by an order of the President passed after an address by each 
House of Parliament supported by a majority of the total membership of that 
House and by a majority of not less than two thirds of the members of that 
House present and voting has been presented to the President in the same 
session for such removal on the ground of proved misbehaviour or incapacity. 
16 Article 217(1 )(b) A Judge may be removed from his office by the President 
F 
in the manner
provided in clause (4) of article 124 for the removal of a Judge 
of the Supreme Court; 
17 Under the proviso to Article 125(2) and proviso to Article 221 (2) respectively. 
"Article 112(3)(d) - (3) The following expenditure shall be expenditure 
charged on the Consolidated Fund of India -
***"'* 
***** 
***** 
****** 
(d) (i) the salaries, allowances and pensions payable to or in respect of 
G 
Judges of the Supreme Court; 
Article 202(3)(d)- (3) The following expenditure shall be expenditure charged 
on the Consolidated Fund of each State -
H 
***** 
****"' 
****** 
(d) expenditure in respect of the salaries and allowances of Judges of any 
High Court;
SUPREME COURT ADVOCATES-ON-RECORD 
543 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
113(1 )19 and 203(1 )20, the expenditure charged upon A 
the Consolidated Fund of India or the State as the case 
may be shall not be submitted to vote. 
29. Unscrupulous litigants constantly keep searching for 
ways to influence judges. Attitude of the State or its 8 
instrumentalities (largest litigants in modern democracies) 
would be no different21 • Such temptation coupled with the fact 
that the State has the legal authority to make laws including 
the laws that determine the process of selection of judges and 
their service conditions can pose the greatest threat to the c 
independence of the judiciary if such law making authority is 
without any limitations. Therefore, extraordinary safeguards 
to protect the tenure and service conditions of the members of 
the judiciary are provided in the Constitution; with a fond hope 
that men and women, who hold judicial offices so protected 
D 
will be able to discharge their functions with absolute 
independence and efficiency. 
30. However, any amount of legal and institutional 
protection will not supply the necessary independence and 
efficiency to individuals if inherently they are lacking in them. 
19 113(1) - So much of the estimates as relates to expenditure charged upon 
the Consolidated Fund of India shall not be submitted to the vote of 
Parliament, but nothing in this clause shall be construed as preventing the 
discussion in either
House of Parliament of any of those estimates. 
E 
20 203 (1) - So much of the estimates as relates to expenditure charged upon 
F 
the Consolidated Fund of a State shall not be submitted to the vote of the 
Legislative Assembly, but nothing in this clause shall be construed as 
preventing the discussion in the Legislature of any of those estimates. 
21 Fali S. Nariman, Before Memory Fades: An Autobiography, (First Edition 
Hay House (2010 ), p.348 ) 
"I once knew a fine, independent judge in South Africa during the days of 
apartheid - Judge- President John Milne of the Natal Supreme Court. 
We 
G 
used to correspond, and Milne said something similar. Milne wrote to me on 
one occasion (in despair) : 
It seems that however much they may pay lip service to the idea that 
the Judiciary is totally independent of the Executive, politicians 
throughout the ages and throughout the world would actually much 
prefer to have executive minded lackeys and are considerably irritated 
by independent Judges functioning in an independent manner." 
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A 
Where every aspect of judge's service is protected by the 
Constitution, the only way governments can think of gaining 
some control over the judiciary is by making an effort to appoint 
persons who are inherently pliable. There are various factors 
which make a Judge pliable. Some of the factors are -
B 
individual ambition, loyalty-based on political, religious or 
sectarian considerations, incompetence and lack of integrity. 
Any one of the above-mentioned factors is sufficient to make 
a Judge pliable. A combination of more than one of them 
makes a Judge more vulnerable. Combination of 
C incompetence and ambition is the worst. The only way an 
ambitious incompetent person can ascend a high public office 
is by cringing before men in power. 
It is said that men in 
power promote the least of mankind with a fond hope that those 
0 who lack any accomplishment would be grateful to their 
benefactor. History is replete with examples - though proof of 
the expected loyalty is very scarce. Usually such men are only 
loyal to power but not to the benefactor. 
31. In order to ensure that at least in the matter of 
E appointment of Judges, such aberrations are avoided, 
democracies all over the world have adopted different 
strategies for choosing the 'right people' as Judges. The 
procedures adopted for making such a choice are widely 
different. To demonstrate the same, it is useful to examine the 
F judicial systems of some of
the English speaking countries. 
32. The Constitution of.the United States of America 
empowers the President to appoint Judges of the Supreme 
Court22 with the advice and consent of the Senate23• Insofar 
G 
22 Article II Section 2 
The President "shall have power ::. to .. nominate and by and with the advise 
and consent of the Senate .. appoint .. Judges of the Supreme Court . ." 
In the case of the appointment of Judges of the other Statutory Federal 
Courts, the Congress can by law entrust the power to the Supreme Court 
itself. 
23 The Federal Legislature of America is called the Congress of the United 
H 
States consisting of two chambers - Senate and House of Representatives.
SUPREME COURT ADVOCATES-ON-RECORD 
545 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
as the appointment of the Judges of the highest court in United A 
States is concerned, neither the Chief Justice of America nor 
the Supreme Court is assigned any role. The Head of the 
Executive-is conferred with exclusive power to make the choice 
of the Judges of the highest court subject to the advice and 
consent of the Senate. A check on the possibility of arbitrary 
B 
exercise of the power by the President. 
33. The Canadian legal system depicts another 
interesting model. The Supreme Court of Canada is not 
established by the Constitution i.e. the Constitution Act of 1867. c 
Chapter VII of the Act deals with the judicature. Section 101 24 
only authorises the Parliament of Canada to provide for the 
constitution, maintenance and organisation of a general court 
of appeal of Canada and for the establishment of any additional 
courts for the better administration of the laws of Canada. It is o 
in exercise of such power, the Parliament of Canada in 1875 
by a statute, (the Supreme and Exchequer Courts Act, 187525) 
established the Supreme Court of Canada. The Supreme 
Court of Canada's existence, its composition and jurisdiction 
depend upon an ordinary federal statute and these underwent E 
many changes over time. In theory, the Court could be 
abolished by unilateral action of the Federal Parliament. 
Judges of the Supreme Court are appointed by the Governor 
in Council (the federal
cabinet) in exercise of the power 
conferred under Section 2 of the Supreme Court Act (supra). F 
There is no requirement in Canada that such appointments 
be ratified by the Senate or the House of Commons. 
24 Section 101. The Parliament of Canada may. notwithstanding anything in 
this Act, from Time to Time provide for the Constitution, Maintenance, and G 
Organization of a General Court of Appeal for Canada, and for the 
Establishment of any additional Courts for the better Administration of the 
Laws of Canada. 
25 Now replaced by Supreme Court Act, 1985. 
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A 
34. In Australia, the highest Federal Court is called the 
High Court of Australia established under Section 71 26 of the 
Australian Constitution. It consists of a Chief Justice and other 
Judges not less than two as the Parliament prescribes. 
Judges of the High Court are appointed by the Governor 
B General in Council. 
35. Neither Canada nor Australia provide the Chief 
Justice or Judges of the highest court any role in the choice of 
Judges of the Constitutional Courts. In Australia, unlike the 
C American model, there is no provision in the Constitution 
requiring ·consent of the federal legislature for such 
appointments. 
36. England is unique in these matters. It has no written 
constitution as understood in India, US, Canada and Australia. 
D Till 2006, appointments of Judges were .made exclusively by 
the Lord Chancellor of the Exchequer who is a member of the 
Cabinet. 
37. The makers of the Indian Constitution after a study of 
E the various models mentioned above among others, provided 
that in making appointment of the Judges of the 
CONSTITUTIONAL COURTS, the CJI and the Chief Justices 
of the concerned High Court are required to be consulted by 
the President who is the appointing authority of Judges of these 
F Courts. The text of the Constitution clearly excluded any role 
either for the Parliament or for the State Legislatures. 
38. Dr. Ambedkar explained the scheme of the 
Constitution insofar as it
pertains to appointment of Judges of 
G 
26 Section 71. Judicial power and Courts 
H 
The judicial power of the Commonwealth shall be vested in a Federal 
Supreme Court, to be called the High Court of Australia, and in such other 
federal courts as the Parliament creates, and in such other courts as it invests 
with federal jurisdiction. The High Court shall consist of a Chief Justice, and 
so many other Justices, not less than two, as the Parliament prescribes.
SUPREME COURT ADVOCATES-ON-RECORD 
547 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
the CONSTITUTIONAL COURTS and the competing concerns A 
which weighed with the drafting committee for adopting such 
m.odel: 
'There can be no difference of opinion in the 
House that our judiciary must both be 
independent of the executive and must also 
be competent in itself. And the question is 
how these two objects could be secured. 
There are two different ways in which this matter is 
governed in other countries. In Great Britain the 
appointments are made by the Crown, without 
any kirid of limitation whatsoever, which means 
by the executive of the day. There is the 
opposite system in the United States where, 
for instance, officers of the Supreme Court as 
well as other offices ofthe State shall be made 
only with the concurrence of the Senate in the 
United States. It seems to me in the 
circumstances in which we live today, 
where the sense of responsibility has not grown 
to the same extent to which we find it in the 
United States, it would be dangerous to 
leave the appointments to be made by the 
President, without any kind of reservation 
or limitation, that is to say, merely on the 
advice of the executive of the day. Similarly, 
it seems to me that to make every 
appointment which the executive wishes to 
make subject to the concurrence of the 
Legislature is also not a very suitable 
provision. Apartfrom its being cumbrous, it also 
involves the possibility of the
appointment 
B 
c 
D 
E 
F 
G 
H

548 
A 
B 
c 
D 
E 
F 
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SUPREME COURT REPORTS 
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being influenced by political pressure and 
political considerations. The draft article, 
therefore, steers a middle course. It does not 
make the President the supreme and the 
absolute authority in the matter of making 
appointments. It does not also import the influence 
of the Legislature. The provision in the article 
is that there should be consultation of persons 
who are ex hypothesi, well qualified to give 
proper advice in matters of this sort, and my 
judgment is that this sort of provision may be 
regarded as sufficient for the moment. 
With regard to the question of the 
concurrence of the Chief Justice, it seems 
to me that those who advocate that proposition 
seem to rely implicitly both on the impartiality 
of the Chief Justice and the soundness of his 
judgment. I personc;illy feel no doubt that the 
Chief Justice is a very eminent person. But 
after all the Chief Justice is a man with all the 
failings, all the sentiments and all the prejudices 
which we as common people have; and I think, 
to allow the Chief Justice practically a veto 
upon the appointment of Judges is really 
to transfer the authority to the Chief Justice 
which we are not prepared to vest in the 
President or the Government of the day. 
I therefore, think 
that 
that 
is also 
a dangerous proposition27." 
(emphasis supplied) 
27 Constituent Assembly Debates, 24th May 1949 (Vol. VIII)
SUPREME COURT ADVOCATES-ON-RECORD 
549 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
The following are salient features of Dr. Ambedkar's A 
statement: 
1. That the judiciary must be both independent and 
competent. 
2. It is dangerous to confer an unchecked power of B 
choosing or appointing Judges on the executive. The 
concurrence of the legislature is also not desirable 
as it leads to a possibility of appointments being 
influenced by political considerations or under political 
pressure. 
C 
3.(a) Requiring concurrence of the Chief justice is also 
a dangerous proposition. 
(b) That, the Chief Justice is also a human being and 
is a man with all the failings, sentiments and D 
prejudices which common people are supposed to 
have28• 
(c) Providing for the concurrence of CJI would be 
conferring a power of veto on the CJI which in 
E 
substance means transferring the power of 
appointment to the CJI without any limitation, which 
the Constituent Assembly thought it imprudent to 
confer on the President. 
4.That, the Drafting Committee thought the F 
arrangements, specified under Articles 124 and 217 
(as they stood prior to the AMENDMENT), would 
ensure requisite independence and competence of 
the judiciary and such arrangements would be 
sufficient for the "moment". 
G 
26 Recall the words of Jackson, J. in Sacherv. United States 343 US 1 (1952) 
"Men who make their way to the Bench sometimes exhibit vanity, irascibility, 
narrowness, arrogance, and other weaknesses to
which human flesh is heir." 
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39. Till 1977, the true meaning and amplitude of the 
expression consultation occurring in Articles 124 and 217 of 
the Constitution of India troubled neither the executive nor the 
judiciary. There had always been a consultation between the 
constitutional functionaries. Appointments were made without 
B much controversy. This Court in Supreme Court Advocates-
on-Record Association v. Union of India, ( 1993} 4 SCC 441 
(hereinafter referred to as the Second Judges case) recorded so29 
40. Article 22230 authorises the President to transfer High 
c Court Judges in consultation with the CJI. Till 1975, that power 
was very rarely exercised by the President. In 197631 , the power 
under Article 222 was invoked to make a mass transfer of 16 
High Court Judges32• One of the 16 Judges, though complied 
29 Para 371 
D 
E 
F 
(iii) All the appointments to the Supreme Court from 1950 to 1959 were 
made with the concurrence of the Chief Justice of India. 210 out of 211 
appointments made to the High Courts during that period were also with 
the concurrence of the Chief Justice of India. 
(iv) Mr. Go bind Ballabh Pant, Home Minister of India, declared on the floor 
of the Parliament on November 24, 1959 that appointment of Judges 
were virtually being made by the Chief Justice of India and the Executive 
was only an order - issuing authority. 
(v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament on 
November 25, 1959 that
almost all the appointments made to the Supreme 
Court and the High Courts were made with the concurrence of the Chief 
Justice of India. 
(vi) Out of 547 appointments of Judges made during the period January 1, 
1983 to April 10, 1993 only 7 were not in consonance with the views 
expressed by the Chief Justice of India." 
30 Article 222 - Transfer of a Judge from one High Court to another 
ill The President may, after consultation with the Chief Justice of India, transfer 
a Judge from one High Court to any other High Court 
.(2} When a Judge has been or is so transferred, he shall, during the period 
he serves, after the commencement of the Constitution (Fifteenth Amendment) 
G 
Act, 1963 , as a Judge of the other High Court, be entitled to receive in addition 
to his salary such compensatory allowance as may be determined by 
Parliament by law and, until so determined, such compensatory allowance 
as the President may by order fix 
31 During the subsistence of a (partially controversial) declaration of 
emergency 
H 
32 Union of India v. Sankalchand Himatla/ Sheth & Anr., (1977) 4 SCC 193 
(Bhagwati, J. - Para 46)
SUPREME COURT ADVOCATES-ON-RECORD 
551 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
with the order of transfer but challenged the transfer by filing a A 
petition pro bono publico to assert and vindicate the 
independence of the Judiciary33, It was in the context of that 
case, for the first time, the true meaning of the expression 
consultation occurring under Article 222(1) fell for the 
consideration of this Court. · The matter, Union of India v. 
B 
Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 (for 
short Sankalchand case) was heard by five Judges. Four 
separate judgments were delivered by Chandrachud, Bhagwati, 
Krishna Iyer, and Untwalia, JJ. Justice Chandrachud opined 
that "consultation" in the context means an effective consultation C 
and sharing of complete data on the basis of which transfer is 
sought to be effected but concluded that -After an effective 
consultation with the Chief Justice of India, it is open to the 
President to arrive at a proper decision of the question whether D 
a Judge should be transferred to another High Court because, 
what the Constitution requires is consultation with the Chief 
Justice, not his concurrence with the proposed transfer>'. After 
re.cording such a conclusion, His Lordship went on to observe 
as follows: 
"41. 
. ....... But it is necessary to reiterate what 
Bhagwati and Krishna Iyer JJ. said in Shamsher 
Singh (supra) that in all conceivable cases, 
consultation with the Chief Justice of India should 
be accepted
by the Government of India and that 
the Court will have an opportunity to examine if any 
other extraneous circumstances have entered into 
the verdict of the executive if it departs from the 
counsel given by the Chief Justice of India. "In 
practice the last word in such a sensitive subject 
must belong to the Chief Justice of India, the 
rejection of his advice being ordinarily regarded as 
33 Para 47 of Sanka/chand case, Bhagwati, J. 
34 Para 41 of Sankalchand case - Chandrachud, J. 
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F 
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prompted by oblique considerations vitiating the 
order." (page 873). It is hoped that these words will 
not fall on deaf ears and since normalcy has now 
been restored, the differences, if any, between the 
executive and the judiciary will be resolved by 
B 
mutual deliberation each, party treating the views 
of the other with respect and consideration." 
41. Justice Bhagwati, was entirely in agreement with 
what has been said by Krishna Iyer in his judgment. 35 
C 
42. Justice Krishna Iyer spoke for himself and for Justice 
Fazat Ali. Justice Krishna Iyer, while reiterating the views 
expressed by this Court in two earlier judgments, i.e. 
Chandramouleshwar Prasad v. Patna High Court and Ors. , 
(1969) 3 SCC 56 and Samsher Singh v. State of Punjab, AIR 
D 197 4 SC 2192, opined that although the opinion of the Chief 
Justice of India may not be binding on the Government it is 
entitled to great weight and is normally to be accepted by the 
Government .......... 36 with a caveat: 
E 
"115 ........ It must also be borne in mind that ifthe 
Government departs from the opinion of the Chief 
Justice of India it has to justify its action by giving 
cogent and convincing reasons for the same and, 
if challenged, to prove to the satisfaction of the Court 
F 
that a case was made out for not accepting the 
advice of the Chief Justice of India. It seems to us 
that the word 'consultation' has been used in 
Article 222 as a matter of
constitutional courtesy in 
view of the fact that two very high dignitaries are 
G 
concerned in the matter, namely, the President and 
the Chief Justice of India. Of course, the Chief 
35 Para 62 of Sankalchand case - Bhagwati, J. 
36 Para 115 of Sanka/chand case - Krishna Iyer, J. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Justi~e has no power of veto, as Dr. Ambedkar 
explained in the ConstituentAssembly." 
Justice Untwalia agreed with the views expressed by 
Justice Chandrachud on the question of consultation with the 
Chief Justice of India and added: 
"125. 
.. .. .. .. . The Government, however, as 
rightly conceded by Mr. Seervai, is not bound to 
accept and act upon the advice of the Chief Justice. 
It may differ from him and for cogent reasons may 
take a contrary view. In other words, as held by this 
Court in the cc;ise of Chandramouleshwar Prasad 
v. Patna High Court and Ors. [1970]2SCR666 , 
the advice is not binding on the Government 
invariably and as a matter of compulsion in law. 
Although the decision of this Court in 
Chandramouleshwar Prasad's case was with 
reference 
to 
the 
interpretation 
of 
Articles 233 and 235 of the Constitution, on 
principle there is hardly any difference." 
43. One interesting factor that is required to be noted 
from the abovementioned case is that all the 16 transfers were 
made in consultation with the then CJI. Within a year thereafter, 
553 
A 
B 
c 
D 
E 
in March 1977, general elections took place and a new political 
party came to power. The Government on a re-examination of F 
the matter opined thatthere was no justification for transferring 
Justice Sheth from Gujarat. It is a matter of history that all 16 
Judges who were transferred during emergency, were sent
back to their parent High Courts along with Justice Sheth37• 
37 Per Fazal Ali, J. - SP. Gupta case, p.403- "It is true that there were, quite a 
few transfers during the emergencywhich were not in consonance with the 
spirit of Article 222 and that is why the -Government had conceded this fact 
and took steps tci revoke the transfers by retransferring, almost all the Judges 
_ to the High Courts from where they had been transferred." 
G 
H
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A This fact is significant in the context of the argument that 
permitting the executive to have any say in the matter of 
appointment of Judges to Constitutional Courts would be 
destructive of independence of the judiciary. 
8 
44. Within three years thereafter, another significant event 
in the constitutional history of this country occurred. The then 
Law Minister of the Government of India sent a circular dated 
181h March 1981 to Chief Ministers of various States. Chief 
Ministers were requested to obtain from all the Additional 
C Judges (working in the concerned High Courts) consent to be 
appointed as permanent Judges in any other High Court in 
the country. It also advised Chief Ministers to obtain similar 
consent letters fro.m persons who have already been or may in 
future be proposed for initial appointment as Judges of the 
o High Court. The said letter was challenged in S.P. Gupta case 
on the ground it was a direct attack on the independence of 
the judiciary which is a basic feature of the Constitution38 (Para 
2). The matter was heard by seven Judges of this Court. Seven 
separate judgments were delivered. One of the questions 
E before this Court was whether the opinion of CJI be given 
primacy over the opinion of other constitutional functionaries. 
Substantially, this Court took the same view as was taken in 
Sanka/chand case 39 
F 
45. Growth of population, increasing awareness of legal 
rights in the
population, expansion of the scope of judicial 
review as a consequence of a change in the understanding of 
the amplitude of various fundamental rights and their inter-
relationship, a sea change in the law on the procedural 
G limitations in the exercise of the jurisdiction under Article 32 
H 
38 Para 2 of S.P. Gupta case - Bhagwati, J. 
39 See paras 30 & 31 - Bhagwati, J.; Para 134 - Gupta, J., Para 632:.. 
Tulzapurkar, J.; Para 726 - Desai, J. 
Paras 890 & 891 - Pathak, J.; Paras 1031 & 1032- ES Venkataramaiah,J
SUPREME COURT ADVOCATES-ON-RECORD 
555 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
and 226 led to the explosion of dockets of the A 
CONSTITUTIONAL COURTS of this country. But, the Judge 
strength remained relatively stagnant. By 80s, the problem 
became more acute and complex. Government of India did 
not undertake the requisite exercise to make a periodic 
assessment of the need to increase the judge strength. In the B 
case of some High Courts, there was even a reduction 40• 
Even, the appointment process of High Court Judges was 
taking unreasonably long periods on legally untenable 
grounds41 • A three Judge Bench of this Court in Subhash 
Sharma v. Union of India (1991) Supp.1 SCC 574 (for short C 
Subhash Sharma case) took note of such a situation. 
46. There was a turmoil with regard to appointment of 
Judges of CONSTITUTIONAL COURTS in 1970s and 1980s. 
Senior Judges were superceded for appointment to the office D 
of CJI. Perhaps, emboldened by judgments of this Court in 
Sankalchand and S.P. Gupta the executive (at the National 
as well as the State level) resorted to unhealthy manipulation 
of the system. The Informal Constitution : Unwritten 
Criteria in Selecting Judges for the Supreme Court of E 
lndia42 records some instances of such manipulations based 
40 Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page 586: 
Para 18. "We gather that the Kerala High Court where the sanctioned strength 
has been reduced by 2, has a sanctioned strength of 22
while its pendency 
as on January 1, 1990 being 34,330 cases justifies a Judge strength of F 
almost 50 on the basis of the measure of 650 cases per Judge per year. We 
intend to indicate that there was no justification for reduction of the sanctioned 
strength." 
41 Pata 19. "For the present we suggest to government that the matter should 
be reviewed from time to time and steps should be taken for determining the 
sanctioned strength in a pragmatic way on the basis of the existing need. If 
there be no correlation between the need and the sanctioned strength and 
G 
the provision of Judge-manpower is totally inadequate, the necessary 
consequence has to be backlog and sluggish enforcement of the Rule of 
Law ...... ." 
· 
., Abhinav Chandrachud, The Informal Constitution : Unwritten Criteria in 
Selecting Judges for the Supreme Court of India, (Oxford University Press, 
United Kingdom 2014) See Pages 113 to 120 
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A on news items published in print media of some reputation by 
Commentators of well established credentials on 
Contemporary issues and scholars. It appears that out of 53 
appointments of Judges to some High Courts made in 1984-
85, 32 were made on the recommendations of acting Chief 
B Justices. It is believed that the senior most Judges of some 
High Courts (from where the said 32 recommendations had 
originated) who initiated those recommendations as acting 
Chief Justices, were made permanent Chief Justices only after 
they agreed to recommend names suggested by the Executive. 
C A particular Additional Judge was not confirmed as a 
permanent Judge for several years notwithstanding the 
recommendations for his confirmation by three successive 
Chief Justices of the High Court and three CJ ls allegedly on 
0 
the ground that the Judge had delivered a judgment not 
palatable to the State Government. It appears that the 
Government headed by Prime MinisterV.P. Singh had stalled 
appointments of 67 persons recommended by the Chief 
Justices of various High Courts. Charges were freely traded 
E against each other by the constitutional functionaries who are 
part of the appointment process of the CONSTITUTIONAL 
COURTS. It appears that a Law Minister for the Union of India 
complained that State Governments were trying to pack High 
Courts with their 'own men'43• The basic facts are verifiable, 
F inferences therefrom are perhaps
contestable. Unfortunately, 
the correspondence between the Government and the CJI and 
the record of the consultation process are some of the best 
guarded secrets of this country. 
4 7. The question is not whether the various statements 
G made in the above-mentioned book are absolutely accurate. 
H 
The observatipns made by this Court in Subhash Sharma case 
43 From 1978, Governments at the State level and the Union level ceased to 
be necessarily of the same political party. Regional parties in parts of the 
country had captured power putting an end to one party rule at both the levels.
SUPREME COURT ADVOCATES-ON-RECORD 
557 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
can lead to a safe conclusion, that there must be some truth in 
A 
the various statements made in the book. The above scenario 
whether true or partially true formed the backdrop of the 
observations made in Subhash Sharma case (supra). As a 
consequence, the Bench thought it fit that the correctness of 
S.P. Gupta case should be considered by a larger Bench. 
B 
"49. 
. ....... majority view in S.P. Gupta's case 
should be considered by a larger Bench we direct 
the papers of W.P. No. 1303of1987 to be placed 
before the learned Chief Justice for constituting a 
c 
Bench of nine Judges to examine the two questions 
we have referred to above, namely, the position of 
the Chief Justice of India with reference to primacy 
and, secondly, justiciability of fixation of Judge 
strength ....... " 
D 
48. This led to the Second Judges case. The matter was 
heard by nine Judges. Five separate judgments were delivered. 
Justice Verma spoke for five of them. Justice Pandian and 
Justice Kuldip Singh wrote separate judgments but agreed 
with tile conclusions of Justice Verma, but Justice Ahmadi and 
E 
Justice Punchhi did not. One proposition on which all nine 
Judges were unanimous is that under the scheme of the 
Constitution, independence of judiciary is indispensable. 
Justice Verma categorically held that it is a part of the basic 
F 
structure of the Constitution44• The point of disagreement 
44 Para
421 - These questions have to be considered in the context of the 
independence of the judiciary. as a part of the basic structure of the 
Constitution, to secure the 'rule of law', essential for the preservation of the 
democratic system. The broad scheme of separation of powers adopted in 
the Constitution, together with the directive principle of 'separation of judiciary G 
from executive' even at the lowest strata, provides some insight to the true 
meaning of the relevant provisions in the Constitution relating to the 
composition of the judiciary. The construction of these provisions must accord 
with these fundamental concepts in the constitutional scheme to preserve 
the vitality and promote the growth essential for retaining the Constitution as 
a vibrant organism. 
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A 
between the majority and minority is only regarding the mode 
by which the establishment and continuance of such an 
independent judiciary can be achieved. 
8 
49. Textually, provisions which indicate that the judiciary 
is required to be independent of the executive are Article 5045 
and the form of oath required to be taken by the Judges of 
CONSTITUTIONAL COURTS prescribed in Forms IV46 and 
Vlll47 under the Third Schedule to the Constitution of India. 
50. However, structurally there are many indications in 
C the scheme of the Constitution which lead to an unquestionable 
inference that the Framers of the Constitution desired to have 
a judiciary which is absolutely independent of the Executive 
and insulated from vagaries of transient and shifting 
majoritarian dynamics. Under the scheme of the Constitution, 
D State Legislatures have absolutely no role in matters pertaining 
to the establishment of CONSTITUTIONAL COURTS of this 
country. Parliament alone is authorized to deal with certain 
E 
F 
G 
H 
45 Article 50. Separation of judiciary from executive - "The State shall take 
steps to separate the judiciary from the executive in the public services of the 
State." 
46 Form of oath or affirmation to be made by the Judges of the Supreme 
Court and the Comptroller and Auditor-General of India:-
"!, A.B., having been appointed Chief Justice (or a Judge) of the Supreme 
Court of India (or Comptroller and Auditor-General
of India) do swear in the 
name of God that I will bear true faith and solemnly affirm faith and allegiance 
to the Constitution of India as by law established, that I will uphold the 
sovereignty and integrity of India, that I will duly and faithfully and to the best of 
my ability, knowledge and judgment perform the duties of my office without 
fear or favour. affection or illwill and that I will uphold the Constitution and the 
laws." 
47 Form of oath or affirmation to be made by the Judges of a High Court:-
" I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at 
(or of) ......... -..... do swear in the name of God that I will bear solemnly affirm 
true faith and allegiance to the Constitution of India as by law established, 
that I will uphold the sovereignty and integrity of India, that I will duly and 
faithfully and to the best of my ability, knowledge and judgment perform the 
duties of my office without fear or favour, affection or ill-will and that I will 
uphold the Constitution and the laws."
SUPREME COURT ADVOCATES-ON-RECORD 
559 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
aspects of the establishment of the CONSTITUTIONAL A 
COURTS and their administration such as fixation of the 
strength of the courts, salaries and other service conditions of 
the judges etc. Termination of an appointment made to a 
CONSTITUTIONAL COURT can be done only through the 
process of impeachment by Parliament, the only legislative B 
body authorised to impeach by following a distinct legislative 
process only on the ground of 'proved misbehaviour or 
incapacity'. Such a process is made more stringent by a 
constitutional stipulation under Article 124(5)48 that the 
procedure for investigation and proof of misbehaviour or C 
incapacity of a Judge must be regulated by law. Even after 
misbehaviour or incapacity is established removal of a Judge 
is not automatic but subject til voting and approval by a special 
majority of the Parliament specified under Article 124(4)49• 
D 
Prior to the AMENDMENT, the power to appoint Judges of 
CONSTITUTIONAL COURTS vested in the President to be 
exercised in consultation with the various constitutional 
functionaries mentioned under Articles 124 and 217, as the 
case may be. Consultation with the CJI was mandatory for the E 
appointment of Judges of all CONSTITUTIONAL COURTS. 
Consultation with the Chief Justices of High Courts was 
mandatory for appointment of Judges of High Courts. 
51. In the backdrop of such scheme, a question arose 
whether the
appointment process, in any way, impacts 
F 
independence of the judiciary, which, admittedly, formed a part 
48 Article 124(5). Parliament may by law regulate the procedure for the 
presentation of an address and for the investigation and proof of the 
misbehaviour or incapacity of a Judge under clause (4). 
49 Article 124(4). A Judge of the Supreme Court shall not be removed from his G 
office except by an order of the President passed after an address by each 
House of Parliament supported by a majority of the total membership of that 
House and by a majority of not less than two thirds of the members of that 
House present and voting has been presented to the President in the same 
session for such removal on the ground of proved. misbehaviour or incapacity. 
H
560 
A 
8 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
of the basic structure of the Constitution. Majority of the Judges 
opined that it does50• Their Lordships drew support for such 
"'(per Hon. Pandian, J.)- Para 49."one other basic and inseparable vital 
c.ondition is absolutely necessary for timely securing the independence of 
judiciary; and that concerns the methodology followed in the matter of 
sponsoring, selecting and appointing a proper and fit candidate to the 
(Supreme Court or High Court) higher judiciary. The holistic condition is a 
major component that goes along with other constitutionally guaranteed 
service conditions in securing a complete independence of judiciary. To say 
differently, a healthy independent judiciary can be said to have been firstly 
secured by accomplishment of the increasingly important condition in regard 
to the method of appointment of judges and, secondly, protected by the 
fulfilment of the rights, privileges and other service conditions. The resultant 
inescapable conclusion is that only the consummation or totality of all the 
requisite conditions beginning with the method and strategy of selection and 
appointment of judges will secure and protect the independence of the 
judiciary. Otherwise, not only will the cgidibility of the judiciary stagger and 
decline but also the entire judicial system will explode which in turn may 
cripple the proper functioning of democracy and the philosophy of this 
cherished
concept will be only a myth rather than a reality." 
(per Hon. Kuldip Singh, J.) - Para 335. ''Then the question which comes up 
for consideration is, can there be an independent judiciary when the power 
of appointment of judges vests in the executive? To say yes, would be 
illogical. The independence of judiciary is inextricably linked and connected 
with the constitutional process of appointment of judges of the higher judiciary. 
'Independence of Judiciary' is the basic feature of our Constitution and if it 
means what we have discussed above, then the Framers of the Constitution 
could have never intended to give this power to the executive. Even otherwise 
the Governments -
Central or the State -
are parties before the Courts in 
large number of cases. The Union Executive have vital interests in various 
important matters which come for adjudication before the Apex Court. The 
executive -
in one form or the other -
is the largest single litigant before the 
courts. In this view of the matter the judiciary being the mediator -
between 
I.he people and the executive -
the Framers of the Constitution could not 
have left the final authority to appoint the Judges of the Supreme Court and of 
the High Courts in the hands of the executive." 
(per Hon. Verma, J.)- Para 447. "When the Constitution was being drafted, 
there was general agreement that the appointments of Judges in the 
superior judiciary should not be left to the absolute discretion of the 
executive, and this
was the reason for the provision made in the Constitution 
imposing the obligation to consult the Chief Justice of India and the Chief 
Justice of the High Court. This was done to achieve independence of the 
Judges of the superior judiciary even at the time of their appointment, instead 
of confining it only to the provision of security of tenure and other conditions of 
service after the appointment was made. It was realised that the independence 
of the judiciary had to be safeguarded not merely by providing security of
SUPREME COURT ADVOCATES-ON-RECORD 
561 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
conclusion from history and debates in the Constituent A 
Assembly apart from the observations made in the cases of 
Sankalchand and S.P. Gupta. Their Lordships also took note 
of the fact that the Constituent Assembly consciously excluded 
any role to the Parliament in the process of appointments, a 
conscious departure from the American Constitutional model 
B 
where Federal Judicial appointments are subject to consent 
of the Senate. 
52. In the background of such an analysis, consultation 
with the Chief Justice of India in Articles 124 and 217 was C 
interpreted as conferring primacy to the opinion of CJI. 
Consultation with the CJ I was part of a design of the Constituent 
Assembly to deny unfettered authority (to the union executive) 
to appoint Judges of the CONSTITUTIONAL COURTS. The 
Constituent Assembly did not choose to vest such controlling D 
power in the Parliament to which the Executive is otherwise 
accountable under the scheme of the Constitution. This Court, 
therefore, concluded that without primacy to the opinion of CJI 
the whole consultation process contemplated under Articles 
124 and 217 would only become ornamental enabling the 
E 
executive to make appointments in its absolute discretion, 
most likely based on considerations of political expediency. 
Such a process would be antithetical to the constitutional goal 
of establishing an independent judiciary. However,
Justice 
Verma categorically declared-
"438. The debate on primacy is intended to 
determine, who amongst the constitutional 
F 
tenure and other conditions of service after the appointment, but also by 
preventing the influence of political considerations in making the 
G 
appointments, if left to the absolute discretion of the executive as the 
appointing authority. It is this reason which impelled the incorporation of the 
obligation of consultation with the Chief Justice of India and the Chief Justice 
of the High Court in Articles 124(2) and 217(1 ). The Constituent Assembly 
Debates disclose this purpose in prescribing for such consultation, even 
though the appointment is ultimately an executive act.'" 
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SUPREME COURT REPORTS 
[2015) 13 S.C.R. . 
A 
functionaries involved in the integrated process 
of appointments is best equipped to discharge 
the greater burden attached to the role of primacy, 
of making the proper choice; and this debate is 
B 
c 
D 
E 
not to determine who between them is entitled 
to greater importance or is to take the winner's 
prize at the end of the debate. The task before 
us has to be performed with this perception. 
450. 
. ............ The indication is, that in the 
choice of a candidate suitable for appointment, the 
opinion of the Chief Justice of India should 
have the greatest weight; the selection should 
be made as a result of a participatory 
consultative process in which the executive 
should have power to act as a mere check on 
the exercise of power by the Chief Justice of 
India, to achieve the constitutional purpose. 
Thus, the executive element in the appointment 
process is reduced to the minimum and any 
political influence is eliminated. It was for this 
reason that the word 'consultation' instead of 
'concurrence' was used, but that was done merely 
to indicate that absolute discretion was not 
given to any one, not even to the Chief Justice 
F 
of India as individual, much less to the 
executive, which earlier had absolute discretion 
under the Government of India Acts." 
[emphasis supplied] 
53. This Court also indicated the circumstances on which 
G the President of India would be constitutionally justified in not
acting in accordance with the opinion expressed by the CJI. 
This Court never held that consultation means concurrence as 
is sought to be interpreted in some quarters and I regret to say 
even in the stated objects and reasons for the AMENDMENT. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
"As regards the appointment of Judges of the 
Supreme Court and High Courts, the Supreme 
Court, in the matters of the Supreme Court 
Advocates-on-Record Association v. Union of India 
and its Advisory Opinion 1998 in Third Judges 
case, had interpreted articles 124(2) and 217(1) 
of the Constitution with respect to the meaning 
of "consultation" as "concurrence". It was also 
held that the consultation of the Chief Justice of India 
means collegium consisting of the Chief Justice and 
two orfour Judges, as the case may be. This has 
resulted in a Memorandum of Procedure laying 
down the process which is being presently followed 
for appointment of Judges to both the High Courts 
and the Supreme Court. The Memorandum of 
Procedure confers upon the Judiciary itself the 
power for appointment of Judges." 
[emphasis supplied] 
563 
A 
B 
c 
D 
54. There are conflicting opinions 51 regarding the 
jurisprudential soundness of the judgment of Second Judges E 
51 See the articles of Lord Templeman's favourable opinion and the critical 
view of Lord Cooke of Thorndon published in the book titled Supreme but not 
Infallible - Oxford University Press - 2000 A.O. 
"Article 124 of the Constitution empowers the President (acting on the advice 
of the Prime Minister and Cabinet) to appoint the judges of the Supreme 
Court. The President is given a discretion about consulting judges of the 
Supreme Court and High
Courts but in the case of appointments of a Judge 
other than the Chief Justice, the Chief Justice of India shall always be 
consulted. Similarly, Article 217 requires the Chief Justice of India to be 
consulted concerning the appointment of a judge of the High Court of a state. 
F 
In 1993, in the Supreme Court Advocates on Record Association case the 
Supreme Court by a majority held that, having regard to the independence of G 
the judiciary and the separation of powers which the Court held to be implicit 
in the Constitution, the views of the Chief Justice of India expressed when he 
was consulted must be supreme. The Court also laid down guidelines 
governing the appointment and duration of office of temporary acting judges. 
The majority decision has been criticized as an extension of the meaning of 
the word 'consultation'. However, having regard to the earlier experience in 
H
564 
3UPREMECOURTREPORTS 
[2015] 13 S.C.R. 
A case. I do not think it necessary to examine that aspect of the 
matter for the purpose of determining the present controversy. 
55. After some 20 years of the working of the regime 
created under the Second Judges case, serious questions 
B arose whether the regime emanating as a consequence of 
the interpretation placed by this Court in the Second Judges 
case, yielded any constitutionally aspired result of the 
establishment of an independent and efficient judiciary- the 
CONSTITUTINONAL COURTS. Answer regarding the 
c independence can be subjective, and efficiency perhaps may 
not be very pleasant. 
56. Within a few years doubts arose regarding the true 
purport of the Second Judges case. The President of India 
invoked Article 143 and sought certain clarifications on the 
D judgment of the Second Judges case leading to the opinion 
of this Court reported in Special Reference No.1 of 1998, 
(1998) 7 SCC 739 (hereinafter referred to as 'Third Judges· 
case). Unfortunately, the factual matrix on which doubts were 
entertained by the Government of India are not recorded in the 
E opinion. But para 41 of the Third Judges case records: 
"41. . .. We take the optimistic view that successive Chief 
India of attempts by the executive to influence the personalities and attitudes 
of members of the judiciary, and having regard to the successful attempts 
F 
made in Pakistan to control the judiciary and having regard to the unfortunate
results of the appointment of Supreme Court judges of the United States by 
the President subject to approval by Congress, the majority decision of le 
Supreme Court of India in the Advocates on Record case marks a welcome 
assertion of the independence of the judiciary and is the best method of 
obtaining appointments of integrity and quality, a precedent method which 
the British could follow such advantage." 
-
Lord Templeman 
G 
"All in all, the opinion of the Supreme Court in the third Judges case must be 
one of the most remarkable rulings ever issued by a supreme national 
appellate court in the coomon law world. Since, in some respects, I have had 
to voice respectful doubts about the soundness of the constitutional 
foundations of that opinion .... " 
-
Lord Cooke of Thorndon 
H
SUPREME COURT ADVOCATES-ON-RECORD 
565 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Justices of India shall henceforth act in accordance with A 
the Second Judges case and this opinion." 
57. No wonder, gossip and speculations gather 
momentum and currency in such state of affairs. If a nine-Judge 
Bench of this Court takes an optimistic view that successive 
8 
Chief Justices of India shall henceforth act in accordance 
with the Second Judges case, the only logical inference that 
can be drawn is that the law laid down by the Second Judges 
case was not faithfully followed by the successive Chief 
Justices, if not in all at least in some cases attracting c 
comments. Instead of Ministers, Judges patronised. 52 
58. In the next one and a half decade, this nation has 
witnessed many unpleasant events connected with judicial 
appointments - events which lend credence to the speculation 
that the system established by the Second and Third Judges D 
cases in its operational reality is perhaps not the best system 
for securing an independent and efficient judiciary. 53 
59. Two events are part of the record of this Court and 
can be quoted without attracting the accusation of being 
E 
irresponsible and unconcerned about the sanctity of the 
52 Iyer, V.R. Krishna, Judiciary: A reform agenda-II, The Hindu (online edition) 
15.08.2002 
53 "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at 
the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011. 
F 
"As I
have said elsewhere 'the process by which a judge is appointed to a 
superior court is one of the best kepi secrets in this country. The very secrecy 
of the process leads to an inadequate input of information as to the abilities 
and suitability of a possible candidate for appointment as a judge. A chance 
remark, a rumour or even third-hand information may be sufficient to damn a 
judge's prospects. Contrariwise a personal friendship or unspoken obligation 
G 
may colour a recommendation. Consensus within the collegium is 
sometimes resolved through a trade-off resulting in dubious appointments 
with disastrous consequences for the litigants and the credibility of the judicial 
system. Besides, institutional independence has also been compromised 
by growing sycophancy and 'lobbying' within the system." 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A institution. These events led to the decisions reported in Shanti 
Bhushan & Another v. Union of India & Another, (2009) 1 
SCC 657, P.O. Oinakaran (1) v. Judges Inquiry Committee 
& Others, (2011) 8 SCC 380, P.O. Oinakaran (2) v. Judges 
Inquiry Committee & Another, (2011) 8 SCC 4 7 4. 
B 
While the 1st of the said two events pertains to the 
appointment of a Judge of the Madras High Court, the 2"d 
pertains to the recommendation made by the CJI (Collegium) 
regarding elevation of the Chief Justice of a High Court to this 
c Court. 
60. The dispute in Shanti Bhushan case (supra) was 
regarding appointment of a permanent Judge to the Madras 
High Court. The allegation appears to be that the procedure 
indicated in the Second and Third Judges cases had not been 
D followed. I use the expression appears to be because it is 
difficult to identify what was the exact pleading in the case54, It 
is only by inference such a conclusion can be reached. Even 
the conclusion recorded by this Court does not really throw 
any light. In para 22 of the judgment of this Court it is recorded 
E as follows: 
"22. The position is almost undisputed that on 
17.3.2005 the then Chief Justice of India 
recommended for extension of term of 8 out of 9 
F 
persons named as Additional Judges for a further 
period of four months w.e.f. 3.4.2005. On 29.4.2005 
the collegium including the then Chief Justice of 
54 Shanti Bhushan (supra) - Para 2. The
primary ground urged is that the 
opinion of the Chief Justice of India has to be formed collectively after taking 
G into account the views of his senior colleagues who are required to be 
consulted by him for the formation of opinion and no appointment can be 
made unless it is in conformity with the final opinion of the Chief Justice of 
India formed in the aforesaid manner. . ... It is, therefore, submitted that the 
appointment of Respondent No.2 as a permanent Judge as notified on 
2.2.2007 has no sanctity in law. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
India was of the view that name of Respondent 2 
cannot be recommended along with another Judge 
for confirmation as permanent Judge. Since it is 
crystal clear that the Judges are not concerned 
with any political angle if there be any in the matter 
of appointment as Additional Judge or permanent 
Judge; the then Chief Justice should have stuck to 
the view expressed by the collegium and should 
not have been swayed by the views of the 
Government to recommend extension of the term 
of Respondent 2 for one year; as it amounts to 
surrender of primacy by jugglery of words." 
[emphasis supplied] 
567 
A 
B 
c 
Even if I choose to ignore the controversial statements 
made (in the recent past) with regard to the appointment in 
D 
question in the case, by persons who held high constitutional 
offices and played some role in the appointment process 
including former Members of this Court, the judgment leaves 
sufficient scope for believing that all did not go well with the 
appointment. It appears to have been a joint venture in the 
E 
subversion of the law laid down by the Second and Third 
Judges cases by both the executive and the judiciary which 
neither party is willing to acknowledge. 
61. The grievance of the petitioners in that case appears F 
to be that" .... Collegium was not consulted ..... " Unfortunately, 
there is no precise finding in this regard in the said judgment. 
On the other hand,
the content of para 22 of the judgment leaves 
me with an uncomfortable feeling that there was some 
departure from the law perhaps under some political pressure. G 
I wish that I were wrong. 
62. The second event is a recommendation made by 
the then CJI apparently with the concurrence of the Collegium 
H
568 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
for elevation of the petitioner. [See: P.O. Oinakaran (1) (supra); 
P.O. Oinakaran (2) (supra)]. The recommendation did not 
fructify. Serious allegations of unsuitability of the candidate 
whose name was recommended surfaced leading to a great 
deal of public debate. It is unpleasant to recount those 
B 
allegations. They are recorded in the abovementioned two 
judgments. There is no allegation of any failure on the part of 
the Collegium to comply with the procedure laid down in 
Second and Third Judges cases in making the ill-fated 
recommendation. But, the recommendation certainly exposed 
C the shallowness (at least for once) of the theory propounded 
by this Court in the trilogy of cases commencing from S.P. 
Gupta and ending with the Third Judges case that the CJ I and 
the Collegium are the most appropriate authorities to make 
0 
an assessment of the suitability of candidates for appointment 
as Judges of CONSTITUTIONAL COURTS in this country. A 
few more instances were mentioned at the bar during the course 
of hearing to demonstrate not only the shallowness of the theory 
but also the recommendations by the Collegium have not 
E necessarily always been in the best interests of the institution 
and the nation. It is not really necessary to place on record all 
the details but it is sufficient to mention that the earlier 
mentioned two cases are not certainly the only examples of 
the inappropriate exercise of the
power of the Collegium. 
F 
63. I am aware that a few bad examples of the improper 
exercise of the power does not determine the character of the 
power. Such inappropriate exercise of the power was resorted 
to also by the Executive already noticed earlier. Both branches 
of government are accusing each other of not being worthy of 
G trust. 55 At least a section of the civil society believes that both 
55 Mehta, Pratap Bhanu, 'Whom do you trust', The Indian Express, May 14, 
2015- "The implicit constitutional accusation is this. The judiciary had, through 
improvisation, created a method of appointing judges that effectively sidelined 
other branches of government. This arrangement was tolerated, not because 
H 
it conformed to a constitutional text or some hallowed principle, but because
SUPREME COURT ADVOCATES-ON-RECORD 
569 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
are right. The impugned AMENDMENT came in the backdrop A 
of the above-mentioned experience. 
64. Independence of the judiciary is one of the basic 
features of the Constitution. A seven-Judge Bench of this Court 
in L Chandra Kumarv. Unionoflndia & Ors., (1997) 3 SCC B 
261 already held that the power of judicial review of legislative 
action by the CONSTITUTIONAL COURTS is pcirt of the basic 
structure of the constitution and the exercise of such important 
function demands the existence of an independent judiciary. 
"78. The legitimacy of the power of courts within 
constitutional democracies to review legislative · 
action has been questioned since the time it was 
first conceived. The Constitution of India, being 
alive to such criticism, has, while conferring such 
power upon the higher judiciary, incorporated 
important safeguards. An analysis of the manner 
in which the Framers of our Constitution 
incorporated provisions relating to the judiciary 
would indicate that ·they were very greatly 
concerned with securing the independence of 
the judiciary. These attempts were directed at 
ensuring that the judiciary would be capable of 
effectively discharging its wide powers of judicial 
review. While the Constitution confers the power 
to strike down laws upon the High Courts and the 
c 
D 
E 
F 
it seemed to maintain judicial independence. The experience of the 1970s 
made the prospect of
political packing of the judiciary a live fear. This 
arrangement is being challenged, not because we have discovered a new 
principle, but because the credibility of the judiciary has declined. We are, in G 
effect, saying that any arrangement that relies solely on the judiciary has 
proved untrustworthy. Those challenging the NJAC are relying on the ghost of 
the 1970s: Do you really want the political ·class to have a greater say in 
appointments? Both branches of government are accusing each other of not 
being worthy of trust. In the process, they have dragged each other down. The 
problem is that both are right." 
H
570 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Supreme Court, it also contains elaborate 
provisions dealing with the tenure, salaries, 
allowances, retirement age of Judges as well 
as the mechanism for selecting Judges to the 
superior courts. The inclusion of such 
elaborate provisions appears to have been 
occasioned by the belief that, armed by such 
provis•ons, the superior courts would be 
insulated from any executive or legislative 
attempts to interfere with the making of their 
decisions. The Judges of the superior courts have 
been entrusted with the task of upholding the 
Constitution and to this end, have been conferred 
the power to interpret it. It is they who have to ensure 
that the balance of power envisaged by the 
Constitution is maintained and that the legislature 
and the executive do not, in the discharge of their 
functions, transgress constitutional limitations. It is 
equally their duty to oversee that the judicial 
. decisions rendered by those who man the 
subordinate courts and tribunals do not fall foul of 
strict standards of legal correctness and judicial 
independence. The constitutional safeguards 
which ensure the independence of the Judges 
of the superior judiciary, are not available to the 
Judges of the subordinate judiciary or to those who 
man tribunals created by ordinary legislations. 
Consequently, Judges of the latter category can 
never be considered full and effective substitutes 
for the superior
judiciary in discharging the function 
of constitutional interpretation. We, therefore, hold 
that the power of judicial review over legislative 
action vested in the High Courts under Article
SUPREME COURT ADVOCATES-ON-RECORD 
571 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
226 and in this Court under Article 32 of the 
A 
Constitution is an integral and essential 
feature of the.Constitution, constituting part 
of its basic structure. Ordinarily, therefore, the 
power of High Courts and the Supreme Court 
to test the constitutional validity of legislations 
B 
can never be ousted or excluded." 
[emphasis supplied] 
This aspect of the matter is not in issue. None of the 
respondents contested that proposition. The text of the C 
Constitution bears ample testimony for the proposition that the 
Constitution seeks to establish and nurture an independent 
judiciary. The makers of the Constitution were eloquent about 
it. Various Articles of the Constitution seek to protect 
independence of the judiciary by providing appropriate D 
safeguards against unwarranted interference either by the 
Legislature or the Executive, with the Judges conditions of 
service and privileges incidental to the membership of the 
CONSTITUTIONAL COURTS, such as, salary, pension, 
security of tenure of the office etc. The scheme of the 
E 
Constitution in that regard is already noticed. 56 
Such 
protections are felt necessary not only under our Constitution, 
but also several other democratic Constitutions (the details of 
some of them are already noticed in paras 25 to 27). Such 
F 
protections are incorporated in the light of the experience and 
knowledge of history. Various attempts made
by Governments 
to subvert the independence of the judiciary were known to 
the makers of those Constitutions and also the makers of our 
Constitution. 
65. Articles 124 and 217 deal with one of the elements 
necessary to establish an independent judiciary - the 
56 See para 31 (supra) 
G 
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[2015] 13S.C.R. 
A 
appointment process. The Constituent Assembly was fully 
conscious of the importance of such an element in establishing 
and nurturing an independent judiciary.' It examined various 
models in vogue in other countries. Dr. Ambedkar's speech 
dated 241h May 194957 (quoted supra) is proof of such 
B awareness. The Constituent Assembly was fully appraised of 
the dangers of entrusting the power of appointment of members 
of the CONSTITUTIONAL COURTS exclusively to the 
Executive. At the same time, the Constituent Assembly was 
also sensitised to the undesirability of entrusting such a power 
C exclusively to the CJI or allowing any role to the Parliament in 
the matter of the judicial appointments. The probable 
consequences of assigning such a role were also mentioned 
by Dr. Ambedkar. The Constituent Assembly was informed of 
D the various models and institutional mechanisms in vogue 
under various democratic Constitutions for appointment of the 
members of the superior judiciary. The Constituent Assembly 
was told by Dr. Ambedkar that the model, such as the one 
contained in Articles 124 and 217 (as they stood prior to the 
E AMENDMENT) - may be regarded as sufficient for the 
moment. Various alternative models suggested by the 
members were not accepted. 58 The legislative history clearly 
F 
57 Constituent Assembly Debates, 24th May 1949 (Vol. VIII) 
58 On 24'" May 1949 while draft Article 103 of the draft Constitution was
being 
discussed corresponding to present Article 124, four members, Prof. Shibban 
Lal Saksena and Prof. K.T. Shah, who represented the United Provinces of 
Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who 
represented Madras Provinces suggested amendments to Article 103, the 
relevant portions of which read as follows: 
"Prof. Shibban Lal Saksena: 
G 
That for clause (2) of article 103, the following clauses be substituted-
(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme 
Court, shall be appointed by the President subject to confirmation by two-
thirds .majority of Parliament assembled in a joint session of both the Hous.es 
of Parliament." 
H
SUPREME COURT ADVOCATES-ON-RECORD 
573 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
indicates that the members of the Constituent Assembly clearly A 
refused to vest an absolute and unfettered power to appoint 
· Judges of the CONSTITUTIONAL COURTS in any one of the 
3 branches of the Constitution. Constituent Assembly declined 
to assign any rol~ to the Parliament. It declined to vest an 
unbridled power in the executive. At the same time did not B 
agree with the proposal that the CJ l's concurrence is required 
for any appointment. 
66. The system of Collegium the product of an 
interpretative gloss on the text of Articles 124 and 217 c 
undertaken in the Second and Third Judges case may or may 
not be the best to establish and nurture an independent and 
efficient judiciary. There are seriously competing views 
expressed by eminent people59, both on the jurisprudential 
soundness of the judgments and the manner in which the o 
Collegium system operated in the last two decades. 
"Prof. K.T. Shah: 
Every judge of the Supreme Court shall be appointed by the President by 
warrant under his hand and seal after consulta.tion with the Council of States 
and such of the judges of the Supreme Court and of the High Courts in the 
States as may be necessary for the purpose and shall hold office until he 
E 
attains the age of sixty-five years." 
"Mr. B. Pocker Sahib: 
That for clause (2) and the first proviso of clause (2) of article 103, the following 
be substituted-
(2) 
Every
judge of the Supreme Court other than the Chief Justice of 
India shall be appointed by the President by warrant under his hand and seal 
F 
after consultation with the concurrence of the Chief Justice of India; and the 
Chief Justice of India shall be appointed by the President by a warrant under 
his hand and seal after consultation with the judges of the Supreme Court 
and the Chief Justices of the High Court in the States and every judge of the 
Supreme Court." 
"Mr. MahboobAli Beig Sahib: 
G 
That in the first proviso to clause (2) of article 103, for the words 'the Chief 
Justice of India shall always be consulted' the words 'it shall be m~de with 
the concurrence of the Chief Justice of India' be substituted." 
59 See Footnote 50 (supra) 
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[2015] 13S.C.R. 
A 
67. Neither the jurisprudential correctness of the concept 
of Collegium nor how well or ill the Collegium system operated 
in the last two decades is the question before us. The question 
is - whether such a system is immutable or is Parliament 
competent to amend the Constitution and create an alternative 
B 
mechanism for selection and appointment of the members of 
CONSTITUTIONAL COURTS of this country. 
68. The basic objection for the impugned AMENDMENT 
is that it is destructive of the Constitutional objective of 
c establishment of an independent judiciary, and consequently 
the basic structure of-the Constitution. Therefore, it falls foul of 
the law laid down by this Court in Bharati case. 
D 
E 
F 
G 
H 
69. To decide the correctness of the submission, it is 
necessary: 
( 1) to identify the ratio decidendi of Bharati case where 
the theory of "basic structure" and "basic features" 
originated. 
(2) Whether the expressions "basic features" and "basic 
structure" of the Constitution are synonyms or do they 
convey different ideas or concepts? If so, what are 
the ideas they convey? 
(3) Have they been clearly identified by earlier decisions 
of this Court? 
(4 )Are there any principles of law laid down by this Court 
to identify the basic features of the Constitution? 
(5) If the two expressions "basic features" and "basic 
structure" mean two different things, is it the destruction 
of any one of them which renders
any Constitutional 
amendment void or should such an amendment be 
destructive of both of them to become void.
SUPREME COURT ADVOCATES-ON-RECORD 
· 575 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
(6) When can a Constitutional amendment be said to A 
destroy or abrogate either a "basic feature" of the 
Constitution or the "basic structure" of the 
Constitution? 
70. In Bharati case, one of the questions was-whether 8 
Article 368 confers unbridled power on the Parliament to 
amend the Constitution. That question arose in the background 
of an earlier decision of this Court in /. C. Golak Nath & Others 
v. State of Punjab & Another, (1967) 2 SCR 76260 wherein it 
was held that Article 368 conferred on Parliament a limited c 
power to amend the Constitution. A Constitutional amendment 
is 'law' within the meaning of Article 13(3)(a)61 • Any 
Constitutional amendment which seeks to take away or even 
abridge any one of the rights guaranteed under Part-Ill of the 
Constitution would be violative of the mandate contained under D 
Article 13(2)62 and therefore illegal. 
71. The correctness of/. C. Go/ak Nath was one of the 
questions which fell for consideration of the larger Bench of 
this Court in Bharati case. Eleven opinions were rendered. 
This Court by majority held that every Article 'Jf the Constitution 
E 
including the articles incorporating fundamental rights are 
amenable to the amendatory power of the Parliament63 under 
60 Heard by a Bench of 11 Judges and decided by ·a majority of 6:5 
61 Article 13(3)(a). "law" includes any Ordinance, order, bye-law, rule, 
regulation,
notification, custom or usage having in the territory of India the F 
force of law. 
' 2Article13(2). The State shall not make any law which takes away or abridges 
the rights conferred by this Part and any law made in contravention of this 
clause shall, to the extent of the contravention, be void. 
63 (Per Sikri, CJ) - Para 292, "fundamental rights cannot be abrogated but G 
reasonable abridgements of fundamental rights can be effected in public 
interest" .... 'That every provision of the Constitution can be amended provided· 
in the result the basic foundation and structure of the Constitution remains 
the same. The basic structure may be said to consist of the following features: 
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576 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A Article 368 which is a constituent oower but such power does 
not enable Parliament to alter the basic structure or 
framework of the Constitution. 64 
B 
c 
b 
E 
F 
G 
H 
(1) Supremacy of the Constitution; 
(2) Republican and Democratic form of Government; 
(3) Secular character of the Constitution; 
(4) Separation of powers between the legislature, the executive and 
the judiciary; 
(5) Federal character of the Constitution." 
(Per Shela!, J. who spoke for himself and Grover, J.) - Paras 582, 583, "there 
can be no difficulty in discerning that the following can be regarded as the 
basic elements of the constitutional structure. These cannot be catalogued 
but can only be illustrated: 
(1) The supremacy of the Constitution. 
(2) Republican and Democratic form of government and sovereignty 
of the country. 
(3) Secular and federal character of the Constitution. 
(4) Demarcation of power between the Legislature, the executive and 
the judiciary. 
(5) The dignity of the individual secured by the various freedoms and 
basic rights in Part Ill and the mandate to build a welfare State 
contained in Part IV. 
(6) The unity and the integrity of the Nation." 
and, therefore, "the power under Article 368 is wide enough to permit 
amendment of each and every article ... so long as its basic elements are not 
abrogated or denuded of their identity". 
(Per Hegde, J, who also spoke for Mukherjea, J.)- Para 666, "Parliament has 
no power
to abrogate or emasculate the basic elements or fundamental 
features of the Constitution such as the sovereignty of India, the democratic 
character of our polity, the unity of the country, the essential features of the 
individual freedoms secured to the citizens." ... and "mandate to build a 
welfare State and egalitarian society." 
(Per P. Jaganmohan Reddy, J.)- paras 1159, 1162, "A sovereign democratic 
republic. Parliamentary democracy, the three organs of the State ... constitute 
the basic structure." He further held that "without either the fundamental 
rights or directive principles it cannot be democratic republic. Therefore, the 
power of amendment under Article 368 ..... is not wide enough to totally 
abrogate ..... any one of the fundamental rights or other essential elements 
of the basic structure of the Constitution and destroy its identity". 
(Per Khanna, J.) - para 1426,, "the power under Article 368 does not take 
within its sweep the power to destroy the old Constitution" ... means "the 
retention of the basic structure or framework of the old Constitution" ... "it is 
not permissible to touch the foundation or to alter the basic institutional 
pattern." 
According to Justice Khanna, "such limitations are inherent and 
implicit in the word "amendment"." 
64 See the summary of the majority of the judgment signed by 9 Judges, p. 
1001 of (1973) 4 sec 225.
SUPREME COURT ADVOCATES-ON-RECORD 
577 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
72. That is the origin of the theory of basic structure of A 
the Constitution. Justice Shelat and Grover, J. used the 
expression basic elements and held that they cannot be 
abrogated or denuded of their identity. Justice Hegde and 
Mukherjea, J. used the expression basic elements or 
fundamental features and held that they cannot be abrogated 
B 
or emasculated. Justice Jaganmohan Reddy used the 
expression essential elements of the basic structure and held 
that they cannot be abrogated thereby destroying the identity 
9f the Constitution. Justice Sikri and Khanna, J. employed the 
expressions basic structure or framework, foundation, the C 
basic institutional pattern, which is beyond the power of the 
Parliament under Article 368 of the Constitution. Some of the 
learned Judges mentioned certain features which according 
to them constitute basic or essential features etc. of the D 
Constitution. All of them were cautious to make it explicit that 
such features or elements mentioned by them are only 
illustrative but not exhaustive. In Minerva Mills Ltd. & Ors. v. 
Union of India & Ors., (1980) 3 SCC 625, Justice 
Chandrachud, speaking for the majority of the Constitution 
E 
Bench, observed that para No.2 of the summary signed by the 
nine Judges correctly reflects the majority view. 
"12. The summary of the various judgments in 
Kesavananda Bharati (Supra) was signed by nine 
out of the
thirteen Judges. Paragraph 2 of the 
summary reads to say that according to the majority, 
"Article 368 does not enable Parliament to alter 
the basic structure or framework of the 
Constitution". Whether or not the summary is a 
legitimate part of the judgment, or is per incuriam 
for the scholarly reasons cited by authors, it is 
undeniable that it correctly reflects the majority 
view." 
F 
[emphasis supplied] Ii
578 
A 
B 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
73. Again in Waman Rao & Ors. etc. etc. v. Union of 
India & Ors., (1981) 2 SCC 362, Chief Justice Chandrachud 
speaking for another Constitution Bench observed: 
"The judgment of the majority to which seven out of 
the thirteen Judges were parties, struck a bridle 
path by holding that in the exercise of the power 
conferred by Article 368, the Parliament cannot 
amend the Constitution so as to damage or 
destroy the basic structure of the Constitution." 
(Para 15) 
[emphasis supplied] 
By then Justice Chandrachud had already expressed his 
opinion in Indira Nehru Gandhi v. Raj Narain, (1975) Supp 
D SCC 1 as follows: 
"663. 
There was some discussion at the Bar as 
to which features of the Constitution form the basic 
structure of the Constitution according to the 
majority decision in the Fundamental Rights case. 
E 
That, to me, is an inquiry both fruitless and irrelevant. 
F 
G 
H 
The ratio of the majority decision is not that 
some named features of the Constitution are 
a part of its basic structure but that the power 
of amendment cannot be exercised so as to 
damage or destroy the essential elements or 
the basic structure of the Constitution, 
whatever these expressions may comprehend." 
[emphasis supplied] 
The above passages, indicate that it is not very clear 
from Bharati case whether the expression basic structure, 
basic features and essential elements convey the same idea 
or different ideas. Therefore,
it is necessary to examine some
SUPREME COURT ADVOCATES-ON-RECORD 
579 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
decisions where the legality of the constitutional amendments A 
was considered by this Court subsequent to Bharati case. 
74. The earliest of them is Indira Nehru Gandhi case 
(supra). By the Constitution 391h Amendment Article 329Awas 
inserted. Clauses (4) and (5) of the said Article sought to 
B 
exclude the complaints of violation of the provisions of The 
Representation of the People Act, 1951 from scrutiny of any 
forum whatsoever in so far as such complaints pertain to the 
election of the Prime Minister or the Speaker of the Lok Sabha. 
The question whether such an amendment violated any one of c 
the basic features of the Constitution arose. It was argued 
that the amendment was violative of four basic features of the 
Constitution. They are: (1) Democratic form of Government; 
(2) Separation of Powers between the legislature, the executive 
and the judiciary; (3) the principle of Equality of all before the D 
law; and (4) the concept of the rule of law. A Constitution Bench 
of this Court held that the impugned clauses were beyond the 
competence of the Parliament's power under Article 368. 65 
75. Four out of the five Judges agreed upon the 
conclusion that the impugned amendment was destructive of E 
65 The judgment in Indira Nehru Gandhi case (supra) is neatly summarised 
by Chandrachud, J. in Waman Rao case at para 15: 
"15 .......... in Indira Gandhi v. Raj Narain Article
329-A(4) was held by the 
Court to be beyond the amending competence of the Parliament since, by 
making separate and special provisions as to elections to Parliament of the 
F 
Prime Minister and the speaker, it destroyed the basic structure of the 
Constitution. Ray, C.J. based his decision on the ground that the 39th 
Amendment by which Article 329-A was introduced violated the Rule of Law 
(p. 418) (SCC p. 44); Khanna, J. based his decision on the ground that 
democracy was a basic feature of the Constitution, that democracy 
contemplates that elections should be free and fair and that the clause in 
question struck at the basis of free and fair elections (pp. 467 and 4 71) (SCC 
G 
pp. 87 and 91 ); Mathew, J. struck down the clause on the ground that it was in 
the nature of legislation ad hominem (p. 513) (SCC p. 127) and that it damaged 
the democratic structure of the Constitution (p. 515) (SCC p. 129); while one 
of us, Chandrachud, J., held that the clause was bad because it violated the 
Rule of Law and was an outright negation of the principle of equality which is 
a basic feature of the Constitution (pp. 663-65) (SCC p. 257)." 
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SUPREME COURT REPORTS 
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A the basic structure of the Constitution. Each one of the Judges 
opined that the impugned provision violated a distinct basic 
feature of the Constitution leading to the destruction of the 
basic structure of the Constitution. 
B 
76. In Minerva Mills case (supra), this Court once again 
was confronted with the problem of "basic structure of the 
Constitution".66 By the Constitution (42"d Amendment) Act 
among other things, Clauses (4) and (5) came to be added in 
Article 368 and Article 31-C came to be amended by 
c substituting certain words in the original Article. Chief Justice 
Chandrachud spoke for the majority of the Court and declared 
Sections 4 and 55 of the Constitution (42"d Amendment) Act 
to be violative of the basic structure of the Constitution. Dealing 
with the amendment to Article 368, this Court held: 
D 
E 
F 
G 
H 
"Para 16 ...... The majority (in Bharati case) 
conceded to the Parliament the right to make 
alterations in the Constitution so long as they are 
within its basic framework. And what fears can that 
judgment raise or misgivings generate if it only 
means this and no more. The preamble assures 
to the people of India a polity whose basic 
structure is described therein as a Sovereign 
Democratic Republic; Parliament may make 
any amendments to the Constitution as it deems 
expedient so long as they do not damage or 
destroy India's sovereignty and its 
democratic, republican character. Democracy
is not an empty dream. It is a meaningful concept 
whose essential attributes are recited in the 
66 Para 1_3. The question which we have to determine on the basis of the 
majority view in Kesavananda Bharati is whether the amendments introduced 
by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage 
the basic structure of the Constitution by destroying any of its basic features 
or essential elements.
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
preamble itself: Justice -
social, economic and 
political; Liberty of thought, expression, belief, faith 
and worship; and Equality of status and opportunity. 
Its aim, again as set out in the preamble, is to 
promote among the people an abiding sense of 
"fraternity assuring the dignity of the individual and 
the unity of the nation". The newly introduced clause 
(5) of Article 368 demolishes the very pillars on which 
the preamble rests by empowering the Parliament 
to exercise its constituent power without any 
"limitation whatever". No constituent power can 
conceivably go higher than the sky-high power 
conferred by clause (5), for it even empowers the 
Parliament to "repeal the provisions of this 
Constitution", that is to say, to abrogate the 
democracy and substitute for it a totally antithetical 
form of Government. That can most effectively be 
achieved, without calling a democracy by any other 
name, by a total denial of social, economic and 
political justice to the people, by emasculating 
liberty of thought, expression, belief, faith and 
worship and by abjuring commitment to the 
magnificent ideal of a society of equals. The power 
to destroy is not a power to amend." 
581 
A 
B 
c 
D 
E 
[emphasis supplied] 
F 
The issue arising from the amendment to Article 31-C 
was identified to be - whether the directive principles of the 
State Policy contained in Part-IV can have primacy over
the 
fundamental rights contained in Part-Ill of the Constitution -
G 
because the 42"d amendment sought to subordinate the 
fundamental rights conferred by Articles 14 and 19 to the 
directive principles. This Court formulated the question -
whether such an amendment was within.the amendatory power 
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582 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
of the Parliament in view of the law laid down by this Court in 
B 
c 
D 
E 
Bharati case. The Court propounded that: 
"41 . ..... It is only if the rights conferred by these 
two Articles are not a part of the basic structure of 
the Constitution that they can be allowed to be 
abrogated by a constitutional amendment. If they 
are a part of the basic structure, they cannot be 
obliterated out of existence in relation to a category 
of laws described in Article 31-C or, for the matter 
of that, in relation to laws of any description 
whatsoever, passed in order to achieve any object 
or policy whatsoever. This will serve to bring out 
the point that a total emasculation of the essential 
features of the Constitu.tion is, by the ratio in 
Kesavananda Bharati, not permissible to the 
Parliament." 
The Court finally reached the conclusion that the Parts Ill 
and IV of the Constitution are like two wheels of a chariot both · 
equally important and held: 
"56. 
. .... To give absolute primacy to one over 
the other is to disturb the harmony of the 
Constitution. This harmony and balance between 
th,e fundamental rights and directive principles is 
F 
an essential feature of the basic structure of 
the Constitution." 
[emphasis supplied] 
This Court concluded that the amendment to Article 31 C 
G is destructive of the basic structure as it abrogated the 
protection of Article 14 & 19 against laws which fall within the 
ambit of the
description contained in Article 31 C. 
77. In Waman Rao case (supra), Article 31-A(1)(a)which 
came to be introduced by the Constitution (First Amendment) 
H
SUPREME COURT ADVOCATES-ON-RECORD 
583 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Act was challenged on the ground that it damages the basic A 
structure of the Constitution. The said Article made a 
declaration that no law providing for acquisition by the State of 
any 'estate' or of 'any rights therein' etc. shall be deemed to 
be void on the ground that such law violated Articles 14, 19 
and 31 of the Constitution. In other words, though Articles 14, B 
19 and 31 remain on the statute book, the validity of the 
category of laws described in Article 31-A(1 )(a) cannot be 
tested on the anvil of Articles 14, 19 and 31. Dealing with the 
permissibility of such an amendment, the Court held as follows: c 
"In any given case, what is decisive is whether, 
insofar as the impugned law is concerned, the rights 
available to persons affected by that law under any 
of the articles in Part Ill are totally or substantially 
withdrawn and not whether the articles, the 
D 
application of which stands withdrawn in regard to 
a defined category of laws, continue to be on the 
statute book so as to be available in respect of laws 
of other categories. We must therefore conclude 
that the withdrawal of the application of Articles 14, 
E 
19 and 31 in respect of laws which fall under clause 
(a) is total and complete, that is to say, the 
application of those Articles stands abrogated, not 
merely abridged, in respect of the impugned 
enactments which indubitably fall within the ambit 
F 
of
clause (a). We would like to add that every case 
in which the protection of a fundamental right is 
withdrawn will not necessarily result in damaging 
. or destroying the basic structure of the Constitution. 
The question as to whether the basic structure 
G 
is damaged or destroyed in any given case would 
depend upon which particular Article of Part 
Ill is in issue arid whether what is withdrawn is 
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[2015] 13 S.C.R. 
A 
quintessential to the basic s.tructure of the 
Constitution." (Para 14) 
· 
[emphasis supplied] 
But this Court finally reached the conclusion that the 
B Amendment did not damage or destroy the basic structure 
and, therefore, upheld theAmendment67• Such a conclusion 
was reached on the basis of the logic-
c 
D 
E 
"29. The FirstAmendment is aimed at removing social and 
economic disparities in the agricultural sector. It may happen 
that while existing inequalities are being removed, new 
inequalities may arise marginally and incidentally. Such 
marginal and incidental inequalities cannot damage or 
destroy the basic· structure of the Constitution. It is 
impossible for any government, howsoever expertly 
advised, socially oriented and prudently managed, to 
remove every economic disparity without causing some 
hardship or injustice to a class of persons who also are 
entitled to equal treatment under the law. . .... " 
This Court held that though the protection of Articles 14 
and 19 is totally abrogated, the withdrawal or abrogation of 
such protection does not necessarily result in damage or 
destruction of the basic structure of the Constitution. In other 
words, this Court held that if in the process of seeking to 
F achieve a larger constitutional goal of removing social and 
economic disparities in the agricultural sector and effectuating 
the twin principles contained in Article 39(b) and (a) if new 
inequalities
result marginally and incidentally they cannot be 
said to be destructive of the basic structure of the Constitution. 
G 
H 
67 Para 31. For these reasons, we are of the view that the Amendment 
introduced by Section 4 of the Constitution (First Amendment) Act, 1951 does 
not damage or destroy the basic structure of the Constitution. The Amendment 
must, therefore, be upheld on its own merits.
SUPREME COURT ADVOCATES-ON-RECORD 
585 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
78. Both Minerva Mills and Waman Rao dealt with the A 
abrogation of Articles 14 and 19 or absolute withdrawal of the 
protection of those fundamental rights with reference to certain 
classes of legislation. This Court held in the first of the above 
mentioned cases that such withdrawal amounted to abrogation 
of a basic feature and, therefore, destructive of the basic B 
structure of the Constitution and in the second case this Court 
carved out an exception to the rule enunciated in Minerva Mills 
and held that such abrogation insofar as the law dealing with 
agrarian reforms did not destroy the basic structure. These . c 
cases· only indicate that; (i) the expressions 'basic structure' 
and 'basic features' convey two different ideas, (ii) the basic 
features are COMPONENTS of basic structure. It also follows 
from these cases that either a particular Article or set of Articles 
can constitute a basic feature of the Constitution. Amendment D 
of one or some of the Articles constituting a basic feature may 
or may not result in the destruction of the basic structure of the 
Constitution. It all depends on the context. 
79. This Court in S.R. Bommaiv. Unionof/ndia, (1994) 
3 sec 1, recognised the concept of secularism as one of the E 
basic features of the Constitution not because any one of the 
Articles of the Constitution made any express declaration to 
that effect but such a conclusion
followed from the scheme of 
the various provisions of the Constitution.68 
80. This Court in M. Nagaraj & Others v. Union of India F 
& Others69, (2006) 8 SCC 212, deduced the principle that the 
process of identifying the basic features of the Constitution 
66 See paras 25 to 29 -Ahmadi, J., para 145- Sawant, J., paras 183 to 186 
- Ramaswamy, J., para 304 - Jeevan Reddy, J. 
G 
69 In this case, this Court had to decide the validity of the Constitution (Eighty 
Fifth) Amendment Act 2001 by which Article 16(4A) was amended in the 
Constitution with retrospective effect. It provided a rule of reservation in the 
4 
-~' 
context of the promotion in the Government service. Such an amendment 
-was challenged to be violative of the basic structure of the Constitution. 
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lies in the identification of some concepts which are beyond 
the words of any particular provision but per\tade the scheme 
of the Constitution. Some of these concepts may be so 
important and fundamental as to qualify to be called essential 
features of the Constitution or part of the basic structure of the 
B 
Constitution therefore not open to the amendment. 
c 
D 
E 
F 
G. 
H 
This Court specified the process by which the basic 
features of the Constitution are to be identified. The Court 
held: 
"23 ..... Therefore, it is important to note that the 
recognition of a basic structure in the context of 
amendment provides an insight that there are, 
beyond the words of particular proyisions, 
systematic principles underlying and 
connecting the provisions of the Constitution. 
These principles give coherence to the Constitution 
and make it an organic whole. These principles are 
part of constitutional law even if they are not 
expressly stated in the form of rules. An instance is 
the principle of reasonableness which connects 
Articles 14, 19 and 21 .. Some of these principles 
may be so important and fundamental, as to qualify 
as "essential features" or part of the "basic structure" 
of the Constitution, that is to say, they are not open 
to amendment. However, it is only by linking 
provisions to such overarching principles that one 
would be able to distinguish essential from less 
essential features of the
Constitution. 
24. The point which is important to be noted is that 
principles 
of 
federalism, 
secularism, 
reasonableness and socialism, etc. are beyond the 
words of a particular provision. They ate systematic
SUPREME COURT ADVOCATES-ON-RECORD 
587 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
and structural principles underlying and connecting 
A 
various provisions of the Constitution. They give 
coherence to the Constitution. They make the 
Constitution an organic whole. They are part of 
constitutional law even if they are not· expressly 
stated in the form of rules. 
B 
25. For a constitutional principle to qualify as an 
essential feature, it must be established that the 
said principle is a part of the constitutional law 
binding on the legislature. Only thereafter, is the 
c 
second step to be taken, namely, whether the 
principle is so fundamental as to bind even the 
amending power of Parliament i.e. to form a part 
of the basic structure. The basic structure concept 
accordingly limits the amending power of 
D 
Parliament.. To sum up: in order to qualify as 
an essential feature, a principle is to be first 
established as part of the constitutional law 
and as such binding on the legislature. Only 
then, can it be examined whether it is so 
E 
fundamental as to bind even the amending power 
of Parliament i.e. to form part of the basic structure 
of the Constitution. This is the standard of judicial 
review of constitutional amendments in the context 
of the doctrine of basic structure." 
F 
[emphasis supplied] 
81. In l.R. Coelho (Dead) By LRs v. State ofT.N. (2007) 
2 SCC 1, this Court ruled; 
"129. 
Equality, rule of law, judicial review and 
separation of powers form
parts of the basic 
structure of the Constitution. Each of these 
concepts are intimately connected. There can be 
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588 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
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no rule of law, if there is no equality before the law. 
These would be meaningless if the violation was 
not subject to the judicial review. All these would be 
redundant if the legislative, executive and judicial 
powers are vested in one organ. Therefore, the duty 
B 
to decide whether the limits have been 
transgressed has been placed on the judiciary. 
130. Realising that it is necessary to secure the 
enforcement of the fundamental rights, power for 
c 
such enforcement ~as been vested by the 
Constitution in the Supreme Court and the High 
Courts. Judicial Review is an essential feature of 
the Constitution. It gives practical content to the 
objectives of the Constitution embodied in Part Ill 
o 
and other parts of the Constitution. It may be noted 
that the mere fact that equality, which is a part of 
the basic structure, can be excluded for a limited 
purpose, to protect certain kinds of laws, does not 
prevent it from being part of the basic structure. 
E 
Therefore, it follows that in considering whether any 
particular feature of the Constitution is part of 
the basic structure - rule of law, separation of 
powers - the fact that limited exceptions are made 
for limited purposes, to protect certain kind of laws, 
F 
does not mean that it is not part of. the basic 
structure." 
[emphasis supplied] 
82. An analysis of the judgments of the above mentioned 
G cases commencing from Bharati case yields the following
propositions: 
H 
(i) Article 368 enables the Parliament to amend any 
provision of the Constitution;
SUPREME COURT ADVOCATES-ON-RECORD 
589 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
(ii) The power under Article 368 however does not enable A 
the Parliament to destroy the basic structure of the 
Constitution; 
(iii) None of the cases referred to above specified or 
declared what is the basic structure of the Constitution; 
8 
(iv) The expressions "basic structure" and "basic features" 
convey different ideas though some of the learned 
Judges used those expressions interchangeably. 
(v) The basic structure of the Constitution is the sum total C 
of the basic features of the Constitution; 
(vi) Some of the basic features identified so far by this 
Court are democracy, secularism, equality of status, 
independence of judiciary, judicial review and some 
of the fundamental rights; 
D 
(vii) The abrogation of any one of the basic features 
results normally in the destruction of the basic structure 
of the Constitution subject to some exceptions; 
(viii) As to when the abrogation of a particular basic E · 
feature can be said to destroy the basic structure of 
the Constitution depends upon the nature of the basic 
feature sought to be amended and the context of the 
amendment. There is no universally applicable test vis-
a-vis all the basic features. 
F 
83. Most of the basic features identified so far in the 
various cases referred to earlier are not emanations of any 
single Article of the Constitution. They are concepts emanating 
from a combination of a number of Articles
each of them 
G 
creating certain rights or obligations or both (for the sake of 
easy reference I call them "ELEMENTS"). For example, 
(a) when it is said that the democracy is a basic feature 
of our Constitution, such a feature, in my opinion, 
H