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 
797 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
recommendation for reconsideration for strong and cogent A 
reasons. If the Chief Justice of India (in consultation with the 
other judges and unanimously) reiterates the recommendation, 
it should be accepted. On the other hand, a recommendation 
made by the Chief Justice of India, which is initially not 
unanimous, may not be accepted by the President. As pointed 
B 
out by Justice Verma, the President occasionally failed to 
exercise this particular constitutional power, for unknown 
reasons or due to a misunderstanding of the dicta laid down 
by this Court. The path taken by this Court was in consonance 
with the views of the Constituent Assembly, in that in the C 
appointment of judges, no constitutional functionary could act 
in an individual capacity but the Chief Justice of India and other 
judges were well qualified to give the correct advice to the 
President in a matter of this sort, and that ought to be accepted 
D 
as long as it was unanimous. 
277. The debate on 24th May, 1949 discloses that a 
variety of options were available before the Constituent 
Assembly with regard to the procedure for the appointment of 
judges of the Supreme Court and the High Court. 
E 
278. One of the available methods was to have the 
appointment of a judge approved by the Council of State. This 
was opposed by Mr. R.K. Sidhwa (C.P. & Berar: General) who 
was of the opinion that if the appointment is
left to the Council 
F 
of State then there is a possibility of canvassing in which event 
the issue of ability etc. of a person recommended for 
appointment as a judge will cease to be relevant. Mr. Sidhwa 
was of the opinion that this method would be the same as an 
election, although Prof. K.T. Shah thought otherwise. The G 
proposal was also opposed by Mr. Biswanath Das (Orissa: 
General) who referred to this method of appointment as laying 
down a very dangerous principle. 
279. Another method of appointment discussed was fo 
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leave the process entirely to the President. Mr. Rohini Kumar 
Chaudhari (Assam: General) apparently supported that view 
and went on to suggest that the amendment proposed by Dr. 
Ambedkar for deletion of consultation by the President with 
judges of the Supreme Court and the High Court should be 
B accepted. He was of the opinion that the matter should be 
dealt with only by the President who could consult anybody, 
why only judges of the Supreme Court and the High Court. If 
the President knew a person to be of outstanding ability, it 
might r:iot be necessary for him/her to consult anybody for 
C making the appointment. This view was supported by Mr. M. 
Ananthasayanam Ayyangar (Madras: General) who also felt 
that it should be left to the President to decide whom to consult, 
if necessary. 
D 
280. Yet another method of appointment was the British 
system where appointments were made by the Crown without 
any kind of limitation whatsoever, that is, by the political 
executive. A fourth method discussed was that prevailing in 
the United States where appointments were made with the 
E concurrence of the Senate. 
281. Dr. Ambedkar was of the view that none of the 
methods proposed was suitable for a variety of reasons and 
therefore a middle path was taken which required the President 
F . to consult the Chief Justice of India and other judges. Dr. 
Ambedkar felt that consultation with the Chief Justice of India 
and other
judges was necessary since they were ex hypothesi 
well qualified to give advice in a matter of this nature. 
282. The Chief Justice of India and other judges are 
G undoubtedly well qualified to give proper advice with regard to 
the knowledge, ability, competence and suitability of a person 
to be appointed as a judge of a High Court of the Supreme 
Court. There is no reason, therefore, why the opinion of the 
Chief Justice of India taken along with the opinion of other 
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SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
judges should not be accepted by the executive, which is A 
certainly not better qualified to make an assessment in this 
regard. However, it is possible that the executive may be in 
possession of some information about some aspect of a 
particular person which may not be known to the Chief Justice 
of India and as postulated in Sanka/chand Himatla/ Sheth B 
and in the Second Judges case the entire material should be 
made available to the Chief Justice of India leaving it to him/ 
her to decide whether the person recommended for 
appointment meets the requirement for being appointed a 
judge or not, despite any antecedents, peculiarities and C 
angularities. If the Chief Justice of India and others with whom 
he/she has discussed the matter conclude - unanimously -
that the person ought to be appointed as a judge of a High 
Court or the Supreme Court despite the antecedents, 
D 
peculiarities and angularities, there can be no earthly reason 
why that collective view should not be accepted. The Chief 
Justice of India is in a sense the captain of the ship as far as 
the judiciary is concerned and his/her opinion (obtained 
collectively and unanimously) should be accepted rather than 
E 
the opinion of someone who is a passenger (though an 
important one) in the ship. Dr. Ambedkar was of the confirmed 
view that the judiciary should be independent and impartial 
and if the Chief Justice of
India does not have the final say in 
the matter then the judiciary is, in a sense, under some other F 
authority and therefore not independent to that extent. This 
would be a rejection of the views of Dr. Ambedkar and a 
negation of the views of the Constituent Assembly. 
283. From the debates of the Constituent Assembly it is 
evident that Dr. Ambedkar's objection was to the suggestion G 
that only the Chief Justice of India (as an individual) should 
have the final say in the matter. There is nothing to suggest 
that the Constituent Assembly had any objection to an 
integrated consultative participatory process as mentioned in 
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the Second Judges case and the Third Judges case or, as 
Dr. Rajeev Dhavan described it as 'institutional participation' 
in the matter of appointment of judges. The objection only was 
to one person (the President or the Chief Justice of India) 
having a final say in the matter and that one person (the Chief 
B Justice of India) could possibly suffer from the same frailties 
as any one of us and this is what Dr. Ambedkar sought to 
emphasize in his objection. It must be appreciated that when 
the debate took place (on 241h May, 1949) the appointment of 
judges was, due to the insertion of clause (5)a in Article 62 of 
C the Draft Constitution276 considered to be the responsibility of 
the President ac~ing on his own and not through the Council of 
Ministers. That this theory was in the process of being given 
up (and was actually given up) is a different matter altogether. 
D Alternatively, if the thinking at that time was that the President 
was to act only the advice of the Council of Ministers (and not 
as an individual having unfettered discretion) there can today 
possibly be no objection to the Chief Justice of India acting 
institutionally on the views of his/her colleagues and not, as 
E desired by Dr. Ambedkar, as an individual. In other words, 
constitutionalism in India has undergone a positive 
transformation and the objection that Dr. Ambedkar had to any 
individual having the final say is rendered non-existent.
In view 
of Samsher Singh the President cannot act in an individual 
F capacity (except to a limited extent) and in view of the Second 
Judges case and the Third Judges case the Chief Justice 
of India cannot act in an individual capacity (except to a limited 
extent). The Constitution being an organic and living document 
must be and has been interpreted positively and meaningfully. 
G 
276 Clause 5(a) of Article 62 reads: 
"(5)a In the choice of his Ministers and the exercise of his other functions 
under this Constitution, the President shall be generally guided by the 
instructions set out in Schedule Ill-A, but the validity of anything done by the 
President shall not be called in question on the ground that it was done 
H 
otherwise than in accordance with such instructions."
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
284. It is this philosophy, of the Constitution being an 
A 
organic and living document that ought to be positively and 
meaningfully interpreted, that is to be found in Samsher Singh. 
It is this constructive interpretation read with the CAD that made 
the advice of the Council of Ministers binding on the President 
and not a 'take it or leave it' advice. Similarly, 'consultation' 
B 
with the Chief Justice of India has to be understood in this light 
and not as a 'consulted and opinion rejected' situation. 
285. It is not correct to suggest, as did the learned 
Attorney-General, that the theory of separation of powers in c 
the Constitution has been torpedoed by the interpretation given 
to Article 124(2) of the Constitution in the Second Judges 
case. On the contrary, the constitutional convention, the. 
constitutional scheme and the constitutional practice recognize 
the responsibility of the judiciary in the appointment of judges D 
and this was merely formalized in the Second Judges case. 
The theory of the separation of powers or the distribution of 
powers was maintained by the Second Judges case rather 
than thrown overboard. To rephrase Justice Jackson of the 
US Supreme Court in Youngstown Sheet & Tube Co. v. 
E 
Sawyer277 the Constitution enjoins upon its branches 
'separateness but interdependence, autonomy but reciprocity' 
and the Second Judges case has effectively maintained
this 
equilibrium between the judiciary and the political executive, 
keeping the independence of the judiciary in mind, including 
F 
the appointment of judges. 
286. Taking all these factors and the CAD into account, 
all of which were discussed in the Second Judges case it is 
difficult to accept the contention of the learned Attorney General G 
that the Second Judges case requires reconsideration on 
merits. While the various decisions referred to dealt with the 
issue of reconsideration of an earlier decision of this Court, it 
277 343 U.S. 579, 635 (1952) 
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is difficult to conclude that a decision rendered by 8 out of 9 
judges who decided the Second Judges case (Justice 
Punch hi also concurred on the primacy of the Chief Justice of 
India) ought to be rejected only because there could be a 
change of opinion or a change of circumstances. The Second 
B Judges case was accepted by the Attorney-General as 
mentioned in the Third Judges case and also by the 
President who did not raise any question about the 
interpretation given to Article 124(2) and Article 217(1) of the 
Constitution. These constitutional authorities having accepted 
C the law laid down in the Second Judges case, there is no 
reason to reconsider that decision on the parameters 
repeatedly laid down by the Court. There are no exceptional 
circumstances, clear and compelling reasons for 
0 
reconsideration, nor can it be said that the Second Judges 
case was plainly erroneous or that it has a baneful effect on 
the public. On the contrary, the decision restored the 
independence of the judiciary in real terms and eliminated the 
baneful effect of executive controls. 
E 
287. It may also be mentioned that it was categorically 
laid down in Samsher Singh that the last word in matters 
~ertaining to judiciary should be with the Chief Justice of India. 
Samsher Singh was decided by a Bench of seven learned 
judges and no one has said that that decision requires 
F 
reconsideration or that it does not lay down the
correct law. 
The Second Judges case merely reiterates the 'last word' 
view in a limited sense. 
288. The consensus of opinion across the board is quite 
G clear that the Second Judges case has been correctly decided 
and that the conventions and the principles laid down therein 
flow from our constitutional history and these do not need any 
reconsideration. 
289. This is not to say that the Second Judges case 
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SUPREME COURT ADVOCATES-ON-RECORD 
803 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
and the Third Judges case do not leave any gaps. Perhaps A 
better institutionalization and fine tuning of the scheme laid 
down in these decisions is required, but nothing more. But, in 
view of the submission made by the learned Attorney-General 
that the only question for consideration is the constitutional 
validity of the 991h Constitution Amendment Act and the NJAC B 
Act the issue of reconsideration becomes academic and it is 
not at all necessary at present to express any further view on 
this. By the 99th Constitution Amendment Act the word 
'consultation' has been deleted from Article 124(2) and Article 
217(1) of the Constitution. Therefore the question whether that C 
word has been correctly interpreted in the Second Judges 
case or not is today completely academic. A new constitutional 
regime has been put in place and that has to be tested as it is. 
It is only if the 99th Constitution Amendment Act is held as 
D 
violating the basic structure of the Constitution and is declared 
unconstitutional that the fine tuning and filling in the gaps in the 
Second Judges case and the Third Judges case would 
arise. 
290. Hence the only question now is whether the 991h 
E 
Constitution Amendment Act violates the basic structure of the 
Constitution and to decide this question it is not necessary to 
reconsider the Second Judges case or the Third Judges 
case. This is apart from the fact
that reconsideration is not 
warranted at law, even on merits. 
F 
Rule of Law 
291. On the merits of the controversy before us, it is 
necessary to proceed on the basis that there is no doubt that 
the CAD, the Constitution and judicial pronouncements G 
guarantee the independeRce of the judiciary. Does the 
independence of the judiciary include the appointment of a 
judge? According to the learned Attorney-General, the 
appointment of judges is a part of the independence of the 
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A judiciary, but not a predominant part. 
292. Before considering these issues, it is necessary to 
appreciate the role of the Ruie of Law in our constitutional 
history. It has been said: 'Ultimately, it is the rule of law, not the 
B judges, which provides the foundation for personal freedom 
and responsible government.'278 
293. The Rule of Law is recognized as a basic feature of 
our Constitution. It is in this context that the aphorism, 'Be you 
ever so high, the law is above you' is acknowledged and 
C 
implemented by the Judiciary. If the Rule of Law is a basic 
feature of our Constitution, so must be the independence of 
the judiciary since the 'enforcement' of the Rule of Law requires 
an independent judiciary as its integral and critical component. 
D 
294. Justice Mathew concluded in Indira Nehru Gandhi 
that according to some judges constituting the majority in 
Kesavananda Bharati the Rule of Law is a basic structure of 
the Constitution.279 
295. In Sam sher Singh the independence of the judiciary 
E was held to be a cardinal principle of the Constitution by Justice 
Krishna Iyer speaking for himself and Justice Bhagwati. 280That 
it is a part of the basic structure of the Constitution was 
unequivocally stated for the first time in the First Judges case 
by Justice Bhagwati, 281 by Justice Faza1Ali282 and by Justice 
F 
V.D. Tulzapurkar.283 
296. In the Second Judges case Justice Pandian 
expressed the view that
independence of the judiciary is 
'inextricably linked and connected with the judicial process.'284 
G 
278 Judicial Independence and the Rule of Law by Jonathan K. Van Patten, 
Volume 2 Benchmark page 117, 129 (1986) 
279 Paragraph 335 
280 Paragraph 149 
281 Paragraph 27 and paragraph 83 
282 Paragraph 320 
"' Paragraph 634 
H 
284 Paragraph 56
SUPREME COURT ADVOCATES-ON-RECORD 
805 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
This was also the view expressed by Justice Kuldip Singh who A 
held that the independence of the judiciary is a basic feature 
of the Constitution:285 Justice J.S. Verma speaking for the 
majority and relying upon a few decisions held that the Rule of 
Law is a basic feature of the Constitution.286 Similarly, Justice 
Punchhi (dissent) held that the Rule of Law is a basic feature 
B 
of the Constitution and the independence of the judiciary is its 
essential attribute: 
"It is said that Rule of Law is a basic feature the 
Constitution permeating the whole constitutional fabric. I c 
agree. Independence of the judiciary is an essential 
attribute of Rule of Law, and is part of the basic structure 
of the Constitution. To this I also agree."287 
297. In Sub-Committee on Judicial Accountability v. 
Union of /ndia 288 it was held by Justice B.C. Ray speaking 
D 
for the majority that the Rule of Law is a basic feature of the 
Constitution and an independent judiciary is an essential 
attribute thereof. It was said: 
"Before we discuss the merits of the arguments it is 
E 
necessary to take a conspectus of the constitutional 
provisions concerning the judiciary and its independence. 
In interpreting the constitutional provisions in this area 
the Court should adopt a construction which strengthens 
the foundational features and the basic structure of the 
F 
Constitution. Rule of law is a basic
feature of the 
Constitution which permeates the whole of the 
constitutional fabric and is an integral part of the 
constitutional structure. Independence of the judiciary is 
an essential attribute of rule of law."289 
G 
285 Paragraph 331 
286 Paragraph 421 
287 Paragraph 502 
288 (1991) 4 SCC 699 (Five Judges Bench) 
289 Paragraph 16 
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298. Similarly, in Kartar Singh v. State of Punjab290 it 
was said by Justice K. Ramaswamy (dissent) that an 
independent judiciary is the most essential attribute of the Rule 
of Law: 
"Independent judiciary is the most essential attribute of 
rule of law and is indispensible to sustain democracy. 
Independence and integrity of the judiciary in a 
democratic system of Government is of the highest 
importance and interest not only to the judges but to the 
people at large who seek judicial redress against 
perceived legal injury or executive excesses."291 
299. This view was reiterated by the learned judge in yet 
another dissent, that is, in Krishna Swami v. Union of 
lndia.292 
300. In Union of India v. Madras Bar Association293 
speaking for the Court, Justice Raveendran held: 
"The rule of law has several facets, one of which is that 
disputes of citizens will be decided by Judges who are 
E 
independent and impartial; and that disputes as to legality 
of acts of the Government will be decided by Judges who 
are independent of the executive."294 
301. Finally, in State of Tamil Nadu it was unanimously 
F 
held by the Bench speaking through Chief Justice Lodha that 
the independence of the judiciary is fundamental to the Rule of 
Law: 
"Independence of courts from the executive and 
legislature is fundamental to the rule of law and one of 
G 
the basic tenets of Indian Constitution. Separation of 
290 (1994) 3 SCC
569 (Five Judges Bench) 
291 Paragraph 412 
292 (1992) 4 sec 605 paragraph 66 
293 (2010) 11 SCC 1 (Five Judges Bench) 
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294 Paragraph 101
SUPREME COURT ADVOCATES-ON-RECORD 
807 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
judicial power is a significant constitutional principle A 
under the Constitution of lndia."295 
302. The view that the Rule of Law and the independence 
of the judiciary go hand in hand and are a part of the basic 
structure of the Constitution has been acknowledged in several 
B 
other decisions as well and is no longer in dispute, nor was it 
disputed by any of the learned counsel before us. It is, therefore, 
not necessary to cite a train of cases in this regard, except to 
conclude that the Rule of Law and the independence of the 
judiciary are intertwined and inseparable and a part of the basic c 
structure of our Constitution. 
Independence of the judiciary - its nature and 
content 
303. What are the attributes of an independent judiciary? D 
It is impossible to define them, except illustratively. At this stage, 
it is worth recalling the words of Sir Ninian Stephen, a former 
Judge of the High Court of Australia who memorably said: '[An] 
independent judiciary, although a formidable protector of 
individual liberty, is at the same time a very vulnerable 
E 
institution, a fragile bastion indeed.'296 It is this fragile bastion 
that needs protection to maintain its independence and if this 
fragile bastion is subject to a challenge, constitutional 
protection is necessary. 
304. The independence of the judiciary takes within its 
F 
fold two broad concepts: (1) Independence of an
individual 
judge, that is, decisional independence; and (2) Independence 
of the judiciary as an institution or an organ of the State, that is, 
functional independence. In a lecture on Judicial 
Independence, Lord Phillips297 said: 'In order to be impartial a G 
judge must be independent; personally independent, that is 
295 Paragraph 126.2 
296 Southey Memorial Lecture, 1981 
297 Former President of the Supreme Court of the United Kingdom and Lord 
Chief Justice of England and Wales 
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free of personal pressures and institutionally independent, that 
is free of pressure from the State.' 
305. As far as individual independence is concerned, 
the Constitution provides security of tenure of office till the age 
8 
of 65 years for a judge of the Supreme Court. 298 However, the 
judge may resign earlier or may be removed by a process of 
impeachment on the ground of proved misbehavior or 
incapacity. 299 To give effect to this, Parliament has enacted 
the Judges (Inquiry) Act, 1968. The procedure for the 
c impeachment of a judge is that a motion may be 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 2/3rd members of that House present and voting 
in the same session. To maintain the integrity and 
o independence of the judiciary, the impeachment process is 
not a cake walk. 
306. A judge's salary, privileges, allowances, leave of 
absence and pension and such other privileges, allowances 
and rights mentioned in the Second Schedule of the 
E Constitution are protected and will not be varied to his/her 
disadvantage after appointment. 300 To give effect to this, 
Parliament has enacted the Supreme Court Judges 
(Conditions of Service)Act, 1958. 
F 
G 
307. The salary, allowances and pension payable to or 
in respect of a judge of the Supreme Court is charged to the 
Consolidated Fund of lndia.301 The estimate of
this expenditure 
may be discussed but shall not be submitted to the vote of 
Parliament. 302 
308. As far as this subje~t is concerned in respect of a 
298 Article 124(2} 
299 Article 124(4) 
300 Article 125 
301 Article 112(2}(d} 
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302 Article 113
SUPREME COURT ADVOCATES-ON-RECORD 
809 
ASSOCIATION v. U:O.I. [MADAN B. LOKUR, J.] 
judge of the High Court, there is an extensive reference in 
A 
Sankalchand Sheth. Broadly, the constitutional protections 
and provisions for a judge of the High Court are the same as 
for a judge of the Supreme Court. 
309. A judge of the High Court has security of tenure till 
8 
the age of 62 years303 and the removal process is the same as 
for a judge of the Supreme Court. 304 The salary, privileges, 
allowances, right of leave of absence and pension etc. are 
protected by Article 221 of the Constitution. While the salary 
and allowances are charged to the Consolidated Fund of the c 
State, 305 the pension payable is charged to the Consolidated 
Fund of lndia.306 As in the case of the Supreme Court, the 
estimate of this expenditure may be discussed but shall not 
be submitted to the vote of the Legislative Assembly. 307 The 
conditions of service of a High Court judge are governed by D 
the High .Court Judges (Salaries and Conditions of Service) 
Act, 1954 in terms of Article 221 of the Constitution. 
310. The entire package of rights and protections ensures 
that a judge remains independent and is free to take a decision 
in accordance with law unmindful of the consequences to his/ E 
her continuance as a judge. This does not mean that a judge 
may take whatever decision he/she desires to take. The 
parameters of decision making and discretion are 
circumscribed by the Constitution,
the statute and the Rule of F 
Law. This is the essence of decisional independence, not that 
judges can do as they please. 
311. In this context, Justice Anthony M. Kennedy of the 
US Supreme Court had this to say before the United States 
Senate Committee on the Judiciary (Judicial Security and 
G 
Independence) on 14th February, 2007: 
' 03 Article 217 
3°' Article 218 
305 Article 202 
306 Article 112(3)(d) 
307 Article 203 
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"Judicial independence is not conferred so judges can 
do as they please. Judicial independence is conferred 
so judges can do as they must. A judiciary with permanent 
tenure, with a sufficient degree of separation from other 
branches of government, and with the undoubted 
B 
obligation to resist improper influence is essential to the 
Rule of Law as we have come to understand that term."308 
312.As far as decisional independence is concerned, a 
c good example of the protection is to be found in Anderson v. 
D 
E 
F 
Gorrie309 where it was said by Lord Esher M.R.: 
"the question arises whether there can be an action 
against a judge of a court of record for doing something 
within his jurisdiction, but doing it maliciously and contrary 
to good faith. By the common law of England it is the law 
that no such action will lie." 
· 
Explaining this, Lord Bridge of Harwich said in Mee (A 
Minor), Re310: 
''The principle underlying this rule is clear. If one judge in 
a thousand acts dishonestly within his jurisdiction to the 
detriment of a party before him, it is less harmful to the 
health of society to leave that party without a remedy than 
that nine hundred and ninety nine honest judges should 
be harassed by vexatious litigation alleging malice in the 
exercise of their proper jurisdiction." 
313. As far as institutional independence is concerned, 
our Constitution provides for it as well. For the Supreme Court, 
G
institutional independence is provided for in Article 129 which 
enables the institution to punish for contempt of itself. Asimilar 
provision is made for the High Court in Article 215. The law 
306 http·l/www judjcjary senate·goy/imo/media/doc/ 
kennedy testimony 02 14 07 pdf 
'"' [1895] 1 Q.B. 668, 670 
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3\0 [1985] A.C. 528, 540
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
declared by the Supreme Court shall be binding on all courts A 
within the territory of India. 311 All authorities, civil and judicial 
are obliged to act in aid of the Supreme Court. 312 The Supreme 
Court is entitled to pciss such decree or make such order as is 
necessary for doing complete justice in any cause or matter 
pending before it and such decree or order shall also be 
B 
enforceable throughout the territory of lndia.313 Subject to a law 
made by Parliament, the Supreme Court is entitled to frame 
rules to regulate its practice and procedure.314 The Chief 
Justice of India is empowered to appoint officers and 'servants' 
of the Supreme Court but their conditions of service shall be 
C 
regulated by rules made by the Supreme Court (subject to 
approval by the President) or by law made by Parliament. 315 
The administrative expenses of the Supreme Court, including 
expenses related to its officers and 'servants' shall be charged 
D 
upon the Consolidated Fund of lndia.316 
314. Significantly, no discussion shall take place in 
Parliament with respect to the conduct of a judge of the 
Supreme Court or the High Court, except in proceedings for 
impeachment.317 Similarly, the Legislature of a State shall not E 
discuss the conduct of a judge of the Supreme Court or the 
High Court in the discharge of his or her duties. 318 
315. In addition to the above, there are other general 
311
Article 141. There is no corresponding constitutional provision for the High 
F 
Court. 
"'Article 144. There is no corresponding constitutional provision for the High 
Court. 
313 Article 142. There is no corresponding constitutional provision for the High 
Court. 
314 Article 145. There is no corresponding constitutional provision for the High 
G 
Court. 
315 Article 146. The corresponding constitutional provision for the High Court 
is Article 229. 
316 Article 146. The corresponding constitutional provision for the High Court 
is Article 229. 
317 Article 121 
318 Article 211 
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protections available to an individual judge or to the institution 
as such. Through Article 50319 which is a provision in Part IV of 
the Constitution (Granville Austin in 'The Constitution: 
Cornerstone of a Nation' describes Part Ill and Part IV of the 
Constitution as 'the conscience of the Constitution')320 the 
B judiciary shall be insulated from executive interference. Justice 
Krishna Iyer speaking for himself and Justice Fazl Ali pointed 
out in Sankalchand Sheth that: 
"Under the general law of civil liability (Tort) words spoken 
c 
or written in the discharge of his judicial duties by a Judge 
of the High Court are absolutely privileged and no action 
for defamation can lie in respect of such words. This 
absolute immunity is conferred on the Judges on the 
ground of public policy, namely, that they can thereby 
D 
discharge their duty fearlessly."321 
316. Similarly, Section 3 of the Judges (Protection) Act, 
1985 provides, inter alia, that no court shall entertain or continue 
any civil or criminal proceeding against any person who is or 
was a judge for any act, thing or word committed, done or 
E spoken by him when, or in the course of, acting or purporting 
to act in the discharge of his official or judicial duty or function. 
This is in addition to the protection given by Section 77 of the 
Indian Penal Code which provides that: 'Nothing is an offence 
F which is done by a Judge when acting judicially in the
exercise 
of any power which is, or which in good faith he believes to be, 
given to him by law.' 
317. In the overall conspectus and structure of the 
independence of the judiciary, it was stated in the First Judges 
G case by Justice D.A. Desai that: 'Independence of judiciary 
under the Constitution has to be interpreted within the 
319 Article 50: The State shall take steps to separate the judiciary from the 
executive in the public services of the State. 
320 Page 50 
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321 Paragraph 77
SUPREME COURT ADVOCATES-ON-RECORD 
813 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
framework and the parameters of the Constitution.'322 It may A 
be added that the framework and parameters of the law are 
also required to be taken into consideration. Justice Bhagwati 
put it quite succinctly when he said: 
"The concept of independence of the judiciary is not 8 
limited only to independence from executive pressure or 
influence but it is a much wider concept which takes within 
its sweep independence from many other pressures and 
prejudices. It has many dimensions, namely, fearlessness 
of other power centres, economic or polittcal, and c 
freedom from prejudices acquired and nourished by the 
class to which the Judges belong."323 
318. Generally speaking, therefore, the independence 
of the judiciary is manifested in the ability of a judge to take a 
decision independent of any external (or internal) pressure or D 
fear of any external (or internal) pressure and that is 'decisional 
independence'. It is also manifested in the ability of the 
institution to have 'functional independence'. A comprehensive 
and composite definition of 'independence of the judiciary' is 
E. 
elusive but it is easy to perceive. 
319. The Constituent Assembly fully appreciated the 
necessity of having an independent judiciary and perhaps 
devoted more time to discussing this than any other issue. 
Granville Austin points out the following: 
F 
"The subjects that loomed largest in the minds of
Assembly members when framing the Judicial provisions 
were the independence of the courts and two closely 
related issues, the powers of the Supreme Court and 
judicial review. The Assembly went to great lengths to G 
ensure that the courts would be independent, devoting 
more hours of debate to this subject than to almost.any 
322 Paragraph 709 
323 Paragraph 27 
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other aspect of the provisions. If the beacon of the 
judiciary was to remain bright, the courts must be above 
reproach, free from coercion and from political 
influence."324 
B 
Separation between the judiciary and the executive 
320. Another facet of the discussion relating to the 
independence of the judiciary can be resolved by considering 
Article 50 of the Constitution. 325 This Article was referred to in 
the Second Judges case and, according to learned counsel 
C for the petitioners, overlooked in the First Judges case. It was 
urged that that Article is of great importance in as much as the 
Constituent Assembly was quite explicit that there should be a 
separation between the executive and the judiciary. The 
learned Attorney-General submitted, on the other hand, that 
D the separation postulated by Article 50 of the Constitution was 
only limited to the public services of the State and not the 
judiciary as a whole. 
321. Article 50 was incorporated in the Constitution in 
E the chapter on Directive Principles of State Policy at the 
instance of Dr. Ambedkar who moved a proposal on 241h 
November, 1948 to insert Article 39A in the Draft 
Constitution. 326 
322. Explaining the necessity of inserting Article 39A in 
F the Draft Constitution, Dr. Ambedkar said that it had been the 
desire for a long time that there should be a separation of the 
judiciary from the executive and a demand for this had been 
continuing
ever since the Congress (party) was founded. The 
G British Government, however, did not give any effect to this 
324 Granville Austin - "Indian Constitution: Cornerstone. of a Nation"' pages 
164-164 
325 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. 
326 39-A. That State shall take steps to secure that, within a period of three 
years from the commencement of this Constitution, there is separation of the 
H 
judiciary from the executive in the public services of the State.
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
demand. Dr. Ambedkar moved for the insertion of Article 39A A 
in the Draft Constitution in the following words: 
"I do not think it is necessary for me to make any very 
lengthy statement in support of the amendment which I 
have moved. It has been the desire of this country from 
B 
long past that there should be separation of the judiciary 
from the executive and the demand has been continued 
right from the time when the Congress was founded. 
Unfortunately, the British Government did not give effect 
to the resolutions of the Congress demanding this c 
particular principle being introduced into the 
administration of the country. We think that the time has 
come when this reform should be carried out. It is, of 
course, realized that there may be certain difficulties in 
the carrying out of this reform; consequently this D 
amendment has taken into consideration two particular 
matters which may be found to be matters of difficulty. 
One is this: that we deliberately did not make it a matter 
of fundamental principle, because if we had made it a 
matter of fundamental principle it would have become E 
absolutely obligatory instantaneously on the passing of 
the Constitution to bring about the separation of the 
judiciary and the executive. We have therefore 
deliberately put this matter in the chapter dealing with 
directive principles and there too we have provided that F 
this reform
shall be carried o_ut within three years, so that 
there is no room left for what might be called 
procrastination in a matter of this kind. Sir, I move."327 
323. Mr. B. Das (Orissa: General) opposed the G 
amendment on the ground that when the people were harassed 
by the British Government, the feeling was that no justice was 
given an<;l that is why there was a demand for the separation 
327 http://par!iamentofindja.njc jn/lsldebates/yo!?p12 him 
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of the judiciary from the executive. After Independence that 
su~picion did not exist and therefore it was essential to 
examine whether separation was necessary. 
324. The debate continued the next day on 25th 
8 
November, 1948 when, as soon as the Constituent Assembly 
met, Dr. Ambedkar moved an amendment for the deletion of 
certain words from Article 39A of the Draft Constitution. As a 
result of this proposed amendment, Article 39Awould read as 
follows: 
C 
"The State shall take steps to separate the judiciary from 
the executive in the public services of the State." 
325. During the course of the debate on 25th November, 
1948 a self-evident truth came into focus. It was pointed out by 
D Pandit Jawaharlal Nehru (United Provinces: General) that the 
Constitution is expected to last a long time and that it should 
not be rigid. As far as the 'basic nature' of the Constitution is 
concerned it must deal with fundamental aspects of the 
political, social, economic and other spheres and not with the 
E details which are matters for legislation. It was stated in this 
F 
G 
H 
context as follows: 
"Coming to this present amendment, if I may again make 
some general observations with all respect to this House, 
it is this: that I have felt that the dignity of a Constitution 
is not perhaps maintained sufficiently if one goes into 
too great detail in that Constitution. A Constitution is 
something which should last a long
time, which is built 
on a strong foundation, and which may of course be 
varied from time to time -
it should not be rigid -
nevertheless, one should think of it as something which 
is going to last, which is not a transitory Constitution, a 
provisional Constitution, a something which you are 
going to change from day to day, a something which has 
provisions for the next year or the year after next and so
SUPREME COURT ADVOCATES-ON-RECORD 
817 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
on and so forth. It may be necessary to· have certain 
A 
transitory provisions. It will be necessary, because there 
is a change to have some such provisions, but so far as 
the basic nature of the Constitution is concerned, it must 
deal with the fundamental aspects of the political, the 
social, the economic and other spheres, and not with the 
B 
details which are matters for legislation. You will find that 
if you go into too great detail and mix up the really basic 
and fundamental things with the important but 
nevertheless secondary things, you bring the basic things 
to the level of the seconds:iry things too. You lose them in 
C 
a forest of detail. The great trees that you should like to 
plant and wait for them to grow and to be seen are hidden 
in a forest of detail and smaller trees. I have felt that we 
are spending a great deal of time on undoubtedly D 
important matters, but nevertheless secondary matters 
- matters which are for legislation, not for a Constitution. 
However, that is a general observation."328 
326. The significance .of the view expressed by Pandit 
Jawaharlal Nehru is that the existence of the 'basic nature' of E 
the Constitution was recognized and it appears that this is what 
we call today as the basic structure or basic features of the 
Constitution. Undoubtedly there was an acknowledgement of 
certain fundamental aspects of the Constitution but it was
not 
possible to go into details in respect of each and every one of F 
them. Explaining this in the context of the 'matters of extreme 
moment' Pandit Jawaharlal Nehru said that India is a very 
mixed country 'politically, judicially, economically and in many 
ways and any fixed rule of thumb to be applied to every area 
may be disadvantageous and difficult in regard to certain G 
areas. On the one hand, that rule will really prevent progress in 
one area, and on the other hand, it may upset the apple-cart in 
some other area. Therefore, a certain flexibility is desirable.'329 
326 http·l/parliamentofindia nic in/ls/debates/vol7p13.htm 
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327. The views expressed by Dr. Bakshi Tek Chand (East 
Punjab: General) are extremely important in this regard. The 
Hon'ble Member gave a detailed historical background for the 
demand of separation of the executive and the judiciary and 
expressed the view that as far back as in 1852 when public 
B 
opinion in Bengal began to express itself in an organized 
manner that the matter of separation was first mooted. In other 
words, the separation of the executive from the judiciary had 
been in demand for almost 100 years. 
c 
328. Dr. Bakshi Tek Chand was of the view that with 
Independence, the necessity· of this reform had become 
greater. The Hon'ble Member cited three illustrative insta~ces 
0 
of interference with the judiciary by Ministers of some 
Provinces and members of political parties i~ the fair 
D 
administration of justice. Dr. Bakshi Tek Chand gave these 
extremely telling examples and it is best to quote what was 
said: 
E 
F 
G 
H 
"One word more I have to say in this connection and that 
is, that with the advent of democracy and freedom, the 
necessity of this reform has become all the greater. 
Formerly it was only the district magistrate and a few 
members of the bureaucratic Go'ilernment front whom 
interference with the judiciary was apprehended, but now, 
I am very sorry to say that even the Ministers in some 
provinces and members of political parties have begun 
to interfere with the.administration of
justice. Those of 
you, who may be reading news paper reports of judicial 
decisions lately, must have been struck with this type of 
interference which has been under review in the various 
High Courts lately. In one province we found that in a case 
pending in a Criminal Court, the Ministry sent for the 
record and passed an order directing the trying 
Magistrate to stay proceedings in the case. This was
SUPREME COURT ADVOCATES-ON-RECORD 
819 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
something absolutely unheard of. The matter eventually A 
went up to the High Court and the learned Chief Justice 
and another Judge had to pass very strong remarks 
against such executive interference with the 
administration of justice 
B 
In another province a case was being tried against a 
member of the Legislative Assembly and a directive went 
from the District Magistrate to the Magistrate trying the 
case not to proceed with it further and to release the man. 
The Magistrate who was a member of the Judicial c 
Service and was officiating as a Magistrate had the 
strength to resist this demand. He had all those letters 
put on the record and eventually the matter went to the 
High Court and the Chief Justice of the Calcutta High 
Court made very strong remarks about this matter. 
D 
Again in the Punjab, a case has recently occurred in 
which a Judge of the High Court, Mr. JusticeAchru Ram, 
heard a habeas corpus petition and delivered a judgment 
of 164 pages at the conclusion of which he observed 
that the action taken by the District Magistrate and the 
E 
Superintendent of Police against a member of the 
Congress Party was mala fide and was the result of a 
personal vendetta. These were his remarks. 
In these circumstances, I submit that with the change of F 
circumstances and with the advent of freedom and the 
introduction of democracy, it has become all the more 
necessary to
bring about the separation of the judiciary 
from the executive at the earliest possible opportunity."330 
329. The debate concluded on 25th November, 1948 with G 
the Constituent Assembly eventually accepting the insertion of 
Article 39A in the Draft Constitution. This is now Article 50 in 
our Constitution. 
330 http://par\iamentofindia.nic.in/ls/debates/vo\7p 13 htm 
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330. The importance of the debate must be looked at 
not only from a historical perspective but also what was 
intended for the future by the ConstituentAssembly. In the past 
there had been unabashed interference by the executive in 
the administration of justice by the subordinate judiciary and 
B this definitely needed to be checked. In that sense, the debate 
on 24th and 25th November, 1948 was a precursor to the debate 
on Article 103 of the Draft Constitution held on 23rd and 24th 
May, 1949. By that time it was becoming clear (if it was not 
already clear) to the Constituent Assembly that there should 
C be no interference by the executive in the administration of 
justice and that it was not necessary to provide for every detail 
in the Draft Constitution. That constitutional conventions existed 
prior to Independence were known, but that they were required 
D to be continued after Independence was of equal significance. 
331. With the need for avoiding details in the Constitution, 
the Draft Constitution did not specifically provide for the 
independence of the judiciary other than the subordinate 
judiciary. If this is looked at quite plainly, it would appear 
E anachronistic to hold a view that Article 39A of the Draft 
Constitution required the subordinate judiciary to be 
independent and separate from the executive but it was not 
necessary for the superior judiciary to be independent or 
separate. Such an obvious
anachronism cannot be attributed 
F to the Constituent Assembly. One must, therefore, assume 
that either the superior judiciary was already independent (and 
this needed no iteration) or that if it was not independent then, 
like the subordinate judiciary, it must be made independent, 
with the executive not being permitted to interfere in the 
G administration of justice. Either way, separation between the 
judiciary and the executive with the intention of having an 
independent judiciary was a desirable objective. 
332. No one can doubt and, indeed, even the learned 
H
SUPREME COURT ADVOCATES-ON-RECORD 
821 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Attorney-General did not doubt that the independence of the A 
judiciary is absolutely necessary. But, the independence of the 
judiciary is not an end in itself. 'Instead, the aim is to secure an 
independent judiciary that will discharge its fundamental 
responsibilities, which include a crucial role in upholding the 
rule of law.'331 In addition, the judiciary should clearly be 
B 
separate from the executive. 
333. By way of digression, a word may also be said about 
the financial independence of the judiciary. In a letter of 151h 
June, 2008 forwarding the Report of the Task Force on 'Judicial c 
Impact Assessment' it was pointed out by Justice M. 
Jagannadha Rao (Retired) to the Minister for Law and Justice 
that 'the Planning Commission and Finance Commission must 
make adequate provision in consultation with the Chief Justice 
of India, for realization of the basic human rights of 'access to D 
justice' and 'speedy justice' both civil and criminal. The present 
allocation of 0.071%,0.078% and 0.07% of the Plan outlay in 
the 9th, 101h and 11th Plan are wholly insufficient.' Financial 
independence is one area which is also critical to the 
independence of the judiciary but is among the least E 
discussed. 
Independence of the judiciary and the appointment 
process 
334. We must proceed on the basis that the 
F 
independence of the judiciary is vital to democracy and there 
ought to be
a separation between the executive and the 
judiciary. The independence of the judiciary begins with the 
appointment of a judge. Granville Austin says: 'An independent 
judiciary begins with who appoints what calibre of judges.' 332 
G 
331 J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under 
Commonwealth Principles: A Compem:lium and Analysis. of Best Practice 
(Report of Research Undertaken by Bingham Centre for the Rule of Law) 
paragraph 0.2.9 
332 Granville Austin - "Working a Democratic Constitution: The Indian 
Experience" page 124 
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It must be appreciated and acknowledged that methodological 
independence, namely, the recommendation and appointment 
of judges to a superior Court is an important facet of the 
independence of the judiciary. 333 If a pers.on of doubtful ability 
or integrity is appointed as a judge, there is a probability of 
B his/her succumbing to internal or external pressure and 
delivering a tainted verdict. This will strike at the root of the 
independence of the judiciary and destroy the faith of the 
common person in fair justice delivery. Therefore, there is a 
great obligation and responsibility on all constitutional 
C functionaries, including the Chief Justice of India and the 
President, to ensure that not only are deserving persons 
appointed as judges, but that deserving persons are not 
denied appointment.334 
o 
335. Chief Justice Marshall in Marbury v. Madison 
E 
F 
G 
H 
observed that in respect of the commissioning of all officers of 
the United States, the clauses in the Constitution and the laws 
of the United States 'seem to contemplate three distinct 
operations', namely: 
"1. The nomination. This is the sole act of the president, 
and is completely voluntary. 
2. The appointment. This is also the act of the president, 
and is also a voluntary act, though it can only be performed 
by and with the advice and consent of the senate. 
3. The commission. To grant a commission to a person 
appointed, might perhaps be
deemed a duty enjoined 
by the constitution. "He shall," says that instrument, 
"commission all the officers of the United States."335 
336. Transposing this to the appointment of judges in 
333 Second Judges case, paragraph 49, 335 and 447. 
334 14'" Report of the LCI, Chapter 5 
" 5 Pages 155 and 156
SUPREME COURT ADVOCATES-ON-RECORD 
823 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
our country, the first step is a recommendation (or nomination) A 
of persons for appointment as judges. Historically, the 
recommendation is made by the Chief Justice of India for the 
appointment of a judge of the Supreme Court and by the Chief 
Justice of a High Court for appointment of a judge to the High 
Court. Occasionally, the Chief Minister of a State also makes 
B 
a recommendation, but that is required to be routed through 
the Chief Justice of the High Court. There is no instance of the 
President recommending any person for appointment as a 
judge of the Supreme Court. 
337. The second step is the appointment of a judge and 
this is possible only through a consultative participatory 
process between the President and the Chief Justice of India. 
c 
It is in this process that there has been some interpretational 
disagreement, but the Second Judges case and the Third D 
Judges case have laid that to rest with a shared primacy and 
responsibility between the President and the Chief Justice of 
India. This has already been discussed above. 
338. The third step is the issuance of a warrant of 
appointment (or commission). It is quite clear that the warrant E 
of appointment can be issued only by the President. There is 
not and cannot be any dispute about this. Under the 
circumstances it is clear that the executive function of the 
President remains intact, unlike what the learned
Attorney-
F 
General says and there is no scope for the recitation of the 
'judges appointing judges' mantra. 
339. It is perhaps this simple three-step process that the 
Constituent Assembly intended. But this got distorted over the 
years, thanks to the interference by the political executive in 
G 
the first and second steps. 
340. In a Report entitled 'Judicial Independence: Law 
and Practice of Appointments to the European Court of Human 
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A Rights' 336 the interplay between the Rule of Law, the 
independence of the judiciary and the appointment of judges 
is commented upon and in a reference to international 
standards, it is said that the appointment of judges plays a 
key role in safeguarding the independence of the judiciary. This 
B is what was said: 
"The independence of the judiciary is one of the 
cornerstones of the rule of law. Rather than being elected 
by the people, judges derive their authority and legitimacy 
c 
from their independence from political or other 
interference. It is clear from the existing international 
standards that the selection and appointment of judges 
plays a key role in the safeguarding of judicial 
independence and ensuring the most competent 
o 
individuals are selected." 
341. India is a part of the Commonwealth and The 
Commonwealth Principles on the accountability of and the 
relationship between the three branches of government337 
provide, inter alia, with regard to the appointment of judges, 
E as follows: 
"An independent, impartial, honest and competent 
judiciary is integral to upholding the rule of law, 
engendering public confidence and dispensing justice. 
F 
The function of the judiciary is to interpret and apply 
national constitutions and legislation, consistent with 
international human rights conventions and international 
law, to the extent permitted by the domestic law of each 
Commonwealth country. To
secure these aims: (a) 
G 
Judicial appointments should be made on the basis of 
336 Contributors: Professor Dr Jutta Limbach, Professor Dr Pedro Villalon, 
Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr Tamara 
Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr Andrzej Zoll. 
Available at http·flwww jnterjghts org/docymenV142/jndex html 
337 As agreed by Law Ministers and endorsed by the Commonwealth 
H 
Heads of Government Meeting, Abuja, Nigeria, 2003
SUPREME COURT ADVOCATES-ON-RECORD 
825 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
clearly defined criteria and by a publicly declared A 
process. The process should ensure: equality of 
opportunity for all who are eligible for judicial office; 
appointment on merit; and that appropriate consideration 
is given to the need for the progressive attainment of 
gender equity and the removal of other historic factors of B 
discrimination;"338 
342. Jack Straw was the Lord Chancellor in the United 
Kingdom from 2007 to 2010. He delivered the 641h series of 
Hamlyn Lectures in 2012 titled 'Aspects of Law Reform -An c 
Insider's Perspective'. The 3rd lecture in that series was 
delivered by him on 41h December, 2012 on 'Judicial 
Appointments'. In that lecture, he says: 
"The appointment of judges - by whom, according to what 
standards and process, and with what outcome - is of D 
critical importance. To maintain a judiciary that is 
independent, which makes good decisions, and in whom 
the public can continue to have confidence, we need to 
appoint the most meritorious candidates and secure a 
judiciary that is as reflective as possible of the society it E 
is serving. 
And we need to get it right first time, every time, because, 
once appointed to a full-time salaried position, judges 
may not be removed from office other than in the most F 
extreme of circumstances."339 
343. Therefore, in the appointment of a judge, it is not 
only (negatively expressed) that a 'wrong person'
should not 
be appointed but (positively expressed) the best talent, 
amongst lawyers and judicial officers should be appointed as G 
judges of the High Court and the best amongst the judges of 
338 http·Uthecommonwea!th ora/sjtes/defau!tlfiles/hjstor:y-jtemsldocumentsl 
LatimerHousePrincjp!es.pdf 
339 Page 52 
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the High Courts or amongst advocates or distinguished jurists 
should be appointed to the Supreme Court. It has been stated 
in the 141h Report of the LCI that the selection of judges is of 
pivotal importance to the progress of the nation and that 
responsibility must be exercised with great care. 
B 
344. In the Report on Judicial Independence: Law and 
Practice of Appointments to the European Court of Human 
Rights, great emphasis was laid on the procedure for the 
appointment of judges and the criteria for appointment. It was 
c said: 
D 
E 
F 
G 
H 
"The issue of how judges are appointed is important in 
two respects. First, appointment procedures impact 
directly upon the independence and impartiality of the 
judiciary. Since the legitimacy and credibility of any 
judicial institution depends upon public confidence in its 
independence, it is imperative that appointment 
procedures for judicial office conform to-and are seen 
to conform to-international standards on judicial 
independence. It would be anomalous and unacceptable 
ifthe Court (European Court of Human Rights] failed to 
meet the international human rights standards that it is 
charged with implementing, including the requirement 
that cases are heard by an independent and impartial 
court of law. 
Second, without the effective implementation of 
'objective and transparent criteria based on proper 
professional qualification,' there is the very real
possibility 
that the judges selected will not have the requisite skills 
and abilities to discharge their mandate. Declining 
standards will ultimately impact negatively on the standing 
of the Court [European Court of Human Rights], as well 
as on the application and development of human rights 
law on the international and (ultimately) national level."
. SUPREME COURT ADVOCATES-ON-RECORD 
827 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
345. In the First Judges case, the question of A 
appointment bf judges as being integral to the independence 
of the judiciary was not an issue but Justice Venkataramiah 
expressed the view that it is difficult to hold that if the 
appointment of judges is left to the executive, it will impair the 
independence of the judiciary. The learned judge was of the 
B 
view that it is only 'after such appointment the executive should 
have no scope to interfere with the work of a judge.' 340 This 
view is, with respect, far too narrow and constricted. However, 
Justice D.A. Desai held a different view which was expressed 
in the following words: 
c 
"Now, the independence of the judiciary can be fully 
safeguarded not by merely conferring security on the 
Judges during their term of office but by ensuring in 
addition that persons who are independent, upright and 
D 
of the highest character are appointed as Judges. 
Moreover, there is always the fear that appointments left 
to the absolute discretion of the appointing executive 
could be influenced by party considerations."341 
346. In the Second Judges case Justice Pandian was 
E 
quite explicit and expressed the view that the selection and 
.appointment of a proper and fit candidate to the superior 
judiciary is inseparable from the independence of the judiciary 
and a vital condition in securing it. 342 Similarly, Justice Kuldip 
F 
Singh also
held that there cannot be an independent judiciary 
when the power of appointment of judges rests with the 
executive and that the independence of the judiciary is 
'inextricably linked and connected with the constitutional 
process of appointment of judges of the higher judiciary.' 343 
G 
Justice Verma, speaking for the majority, expressed the view 
that all constitutional authorities involved in the process of 
340 Paragraph 1033 
341 Paragraph 886 
342 Paragraph 49 
343 Paragraph 335 
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appointing judges of the superior courts 'should be fully alive 
to the serious implications of their constitutional obligation and 
be zealous in its discharge in order to ensure that no doubtful 
appointment can be made.'344 The learned judge further said 
that the independence of the judiciary can be safeguarded by 
B 
preventing the influence of political consideration in making 
appointment of judges to the superior judiciary.345 
34 7. There is, therefore, no doubt that the appointment 
of a judge to the Supreme Court or the High Court is an integral 
c part of the independence of the judiciary. It is not possible to 
agree with the learned Attorney-General when he says that 
though the appointment of a judge is a part of the independence 
of the judiciary, it is but a small part and certainly not a 
predominant part. I would say that it is really the foundational 
o part of the independence of the judiciary. 
348. Shimon Shetreet has this to say on the appointment 
of judges: 
"In any system, the methods of appointment have direct 
E 
bearing on both the integrity and independence of the 
judges. Weak appointments lower the status of the 
judiciary in the eyes of the public and create a climate in 
which the necessary independence of the judiciary is 
likely to be undermined. Similarly, political appointments 
F 
that are seen by the public as not based on merit may 
arouse concern about the judge's independence and
impartiality on the bench. The quality of judicial 
appointments depends upon the process and standards 
applied by the appointing authorities, yet every 
G 
appointment system has its limitation. It is difficult to 
predict what sort of judge a man or woman will be and 
irreversible mistakes in judicial appointments are bound 
to occur, even when the method of appointment is fair 
34' Paragraph 431 
H 
345 Paragraph 44 7
SUPREME co·uRTAbVOCATES-ON-RECORD 
829 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
and efficient and the standards are high, as they are in 
A 
England. Such errors in selection apply equally to 
appointing persons who were unfit for occupying a 
judicialoffice as well as failing to appoint a person who 
might have been a good judge."346 
349. How do international conventions look at this issue? 
The Beijing Statement of Principles of the Independence of 
the Judiciary in the LAWASIA Region 347 provides, inter alia, 
as follows: 
B 
"Independence of the Judiciary requires that; a) The C 
judiciary shall decide matters before it in accordance with 
its impartial assessment of the facts and its 
understanding of the law without improper influences, 
direct or indirect, from any source; and b) The judiciary 
has jurisdiction, directly or by way of review, over all 
D 
issues of a justiciable nature. 346 
To enable the judiciary to achieve its objectives and 
perform its functions, it is essential that judges be chosen 
on the basis of proven competence, integrity and 
E 
independence.349 
The mode of appointment of judges must be such as will 
ensure the appointment of persons who are best qualified 
for judicial office. It must provide safeguards against 
improper influences being taken into account so that only F 
persons of competence, integrity and independence are 
appointed."350 
This document was signed by Justice S.C. Agrawal of 
346 Judges on Trial: The Independence
and Accountability of the English G 
Judiciary, Chapter 4 
347 As amended at Manila on 281h August, 1997. This has been referred to in 
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 in paragraph 11 of the 
Report. 
346 Clause 3 
349 Clause 11 
35° Clause 12 
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SUPREME COURT REPORTS 
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A 
this Court representing Chief Justice A. M. Ahmadi. 
350. The Bangalore Principles of Judicial Conduct, 2002 
which lay down six essential values for a judge (and which are 
accepted world-wide both in civil law and common law 
8 
countries) would be totally unworkable if a person appointed 
as a judge, at the time of appointment, lacks basic competence 
and independence.351 Given all these considerations, it must 
be held and is held that the process for appointment and 1he 
actual appointment of a judge to a High Court or the Supreme 
C Court is a predominant part of the independence of the 
judiciary and, therefore, an integral part of the basic structure 
of the Constitution. 
" 
351. Therefore, the procedure for the appointment of 
judges of the Supreme Court or the High Courts can impact 
D on the independence of the judiciary and Hie basic structure of 
the Constitution. 
The recommendation process 
352. How can the President ensure that the most 
E deserving persons are appointed as judges or that they are 
not denied appointment? This is the nub of the controversy 
before us and this is the problem that has vexed the executive, 
the judiciary, academia, the legal fraternity and civil society 
over several decades. Since justice delivery is undoubtedly 
F the responsibility of the judiciary, therefore, the judiciary 
(symbolized as it were by the Chief Justice of India) is obliged 
to ensure that only the most
deserving persons are considered 
for appointment as judges. 352 
G 
353. The process of consideration of a person for 
appointment as a judge is important both at a stage prior to 
351 The six values are: Independence, Impartiality, Integrity, Propriety, Equality, 
Competence and Diligence 
352 It is not necessary, for the purposes of this discussion, to get into the 
controversy whether the recommendation of a person to be considered for 
H 
appointment should originate from the executive or the judiciary.
SUPREME COURT ADVOCATES-ON-RECORD 
831 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
·the recommendation being made by the Chief Justice of India A 
in consultation with his/her colleagues, constituting a 'collegium' 
and also after the recommendation is sent by the Chief Justice 
of India to the executive. At both stages, the process is 
participatory. In the pre-recommendation stage, it is a 
participatory process involving the Chief Justice of India and 
B 
his/her colleagues, constituting the collegium. 353 It is at this 
stage that the Chief Justice of India takes the opinion of the 
other judges and anybody else, if deemed necessary. This 
stage also includes the participation of the executive because 
it is at this stage that the Chief Justice of India receives inputs C 
from the executive about the frailties, if any, of a person who 
may eventually be appointed a judge. In the post-
recommendation stage also the process is participatory but 
primarily with the executive in the event the executive has some 
D 
objection to the appoin.tment of a particular person for strong 
and cogent reasons to be recorded in writing. 354 Therefore, 
when a person is considered for appointment as a judge, there 
is extensive and intensive participatory consultation within the 
judiciary before the Chief Justice of India actually recommends E 
a person for appointment as a judge; and after the 
recommendation is made, there is consultation between the 
executive and the judiciary
before the process is carried further. 
What can be a more meaningful consultation postulated by 
Article 124(2) of the Constitution? 
F 
354. If a person is not recommended for appointment by 
the Chief Justice of India or the Chief Justice of a High Court, 
the chapter of his/her appointment closes at that stage. And, if 
there is no difference of opinion between the constitutional 
functionaries about the suitability of a person for appointment G 
then, of course, there are no hurdles to the issuance of a warrant 
of appointment. 
353 Second Judges case, paragraph 293 and 428 
354 Second Judges case, paragraph 442, 450, 461, 486 and 509 
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SUPREME COURTREPORTS · 
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A 
355. The difficulty in considering and accepting a 
recommendation arises only if there is a difference of opinion 
during consultations between the executive and the judiciary. 
The Second Judges case effectively resolves this controversy. 
8 
356. At the pre-recommendation stage, it is quite 
possible that the executive is in possession of material 
regarding some personal trait or weakness of character of a 
lawyer or a judge that is not known to the Chief Justice of India 
or the Chief Justice of the High Court and which may potentially 
c disentitle that person from being appointed a judge .. It.is then 
for the executive, as a consultant, to bring this information or 
material to the notice of the Chief Justice of lndia.355 Since the 
judiciary has the responsibility of recommending an 
appropriate candidate for appointment as a judge, primacy is 
o accorded to the view of the judiciary (symbolized by the view 
of the Chief Justice of India) that will weigh and objectively 
consider the material or information and take a final decision 
on the desirability of the appbintment. 356 The Chief Justice of 
India· may, for good rec:{so,n, accept the view of the executive 
E or may, also for good reason, not accept the view of the 
executive. It is in this sense that 'consultation' occurring in 
Article 124(2) and Article 217(1) of the Constitution has to be 
understood. Primacy to the judiciary is accorded only to this
limited extent, but subject to a proviso which will be discussed 
F 
a little later.. 
· 
. 
. 
. 
357. Why is it that limited primacy has been acc,arded to 
the judiciary? That the judiciary is the best suited to take a 
decision whether a person should be appointed a judge or not 
G is implicit in Article 124(2) and Article 217(1) of the Constitution. 
In Article 124(2) of the Constitution, the President is mandated 
to consult the Chief Justice of India and 'such of the Judges of 
the Supreme Court and of the High Courts in the States as the 
355 Second Judges case paragraph 462 and 478(6) 
H 
356 Second Judges case paragraph 467, 468 and 478(6)
SUPREME COURT ADVOCATES.-ON-RECORD 
833 
ASSOCIATION Y. U.0.1. [MADAN B. LOKUR, J.] 
President may deem necessary.' That the President may A 
choose to consult eminent persons from the legal fraternity or 
civil society is another matter, but the President is not required 
to do so. One of the possible reasons for this could be that the 
Constitution framers were of the opinion that ultimately what is 
important is the opinion of judges and not necessarily of others. 
B 
Similarly, for the appointment of a judge of the High Court under 
Article 217(1) of the Constitution, the President is required to 
consult the Chief Justice of India, the Governor of the State 
and the Chief Justice of the High Court- again not anybody 
else from the legal fraternity or civil society. 
C 
358. Similarly, limited primacy is accorded to the political 
executive. In the event the judiciary does not make a unanimous 
recommendation for the appointment of a judge of the 
Supreme Court or the High Courts, the President is entitled to o 
turn down therecommendation. But ifthe recommendation is 
unanimous but returned for reconsideration by the President 
and thereafter unanimously reiterated by the judiciary, then the 
Council of Ministers is bound by the decision of the judiciary 
and must advise the President accordingly. 
E 
359. Since the Constitution is a flexible document, neither 
the President nor the Chief Justice of India is precluded from 
taking the advice of any person, lay or
professional. In fact, 
Justice Verma stated in an interview in this regard as follows: 
F 
"Can you throw light on how, during your tenure as the 
CJI, appointments took place? 
For every Supreme Court appointment, I consulted senior 
lawyers like Fali S. Nariman and Shanthi Bhushan. I used 
G 
to consult five or six top lawyers. I used to consult even 
lawyers belonging to the middle level. Similar consultation 
took place in the case of High Courts. I recorded details 
of every consultation. I wish all my correspondence is 
made public. After the appointment, why should it be 
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834 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
secret? If there is a good reason to appoint the Judges, 
then at least the doubts people cast on them even now 
will not be there. And if there is a good reason why they 
should not have been appointed, then it would expose 
the persons who were responsible for their 
B 
appointment."357 
360. It is this pragmatic interpretation of the Constitution 
that was postulated by the Constituent Assembly, which did 
not feel the necessity of filling up every detail in the document, 
c as indeed it was not possible to do so. 
361. Leaving aside the discussion on the textual 
interpretation of the constitutional provisions and the 
Constituent Assembly debates, a constitutional convention has 
evolved over the last more than seven decades of accepting 
D the opinion of the Chief Justice in the appointment of a person 
as a judge of a superior Court. This constitutional convention 
has existed, if not from the days of the Government of India 
Act, 1919 then certainly from the days of the Government of 
India Act, 1935. This constitutional convention has been 
E exhaustively dealt with by Justice Kuldip Singh in the Second 
Judges case and it was concluded that a constitutional 
convention is as binding as constitutional law.358 In any event, 
there is no cogent reason to discard a constitutional convention 
F if it is working well. At this stage, it is useful to recall the 
comment of Chief Justice Beg in State of Rajasthan v. Union 
of
/ndia 359 that: ' ... constitutional practice and convention 
become so interlinked with or attached to constitutional 
provisions and are often so important and vital for grasping 
G the real purpose and function of constitutional provisions that 
the two cannot often be viewed apart.' This is precisely what 
has happened in the present case where constitutional 
357 Frontline, Volume 25 - Issue 20: September 27-0ctober 10, 2008 
356 Second Judges case paragraph· 353 and 376 
H 
359 (1977) 3 sec 592 at paragraph 56
SUPREME COURT ADVOCATES-ON-RECORD 
835 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
conventions and practices are so interlinked to the A 
constitutional provisions that they are difficult to disassemble. 
362. It is this constitutional interpretation and 
constitutional convention that results in binding the 
recommendation of the Chief Justice of India on the executive 
8 
that is objected to by the learned Attorney-General as being 
contrary to the Constitution as framed and it is this that is sought 
to be 'corrected' by the 991h Constitution Amendment Act. 
363. The issue may be looked at from yet another angle. 
Assuming, the executive rejects the recommendation of the 
C 
Chief Justice of India even after its ur.ianimous reiteration, what 
is the solution to the impasse that is created? The answer is 
to be found in Samsher Singh and reiterated in Sankalchand 
Sheth. It was held in Samsher Singh that in such an event, 
the decision of the executive is open to judicial scrutiny. It was D 
said: 
"In all conceivable cases consultation with that highest 
dignitary of Indian justice will and should be accepted by 
the Government of India and the Court will have an 
E 
opportunity to examine if any other extraneous 
circumstances have entered into the verdict of the 
Minister, if he departs from the counsel given by the Chief 
Justice of lndia."360 
This view was reiterated in Sankalchand Sheth. 361 Of F 
course, it is another matter that no one has a right to be
appointed as a judge, but certainly if the unanimous 
recommendation of the judiciary through the Chief Justice of 
India is not accepted by the President, if nothing else, at least G 
the record will be put straight and the possible damage to the 
dignity, reputation and honour of the person who was 
recommended by the Chief Justice of India will be restored, at 
360 Paragraph 149 
361 Paragraph 41 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
least to some extent. 
364. But is judicial review necessarily the only answer to 
a problem of this nature? Should the executive and the judiciary 
ever be on a collision course in the appointment of a judge? 
B 
Not only did Dr. Ambedkar think that such a situation would not 
occur, he never visualized it. Dr. Ambedkar made provision 
for virtually every contingency, except a stalemate or deadlock 
situation - he never imagined that such an eventuality would 
ever arise . 
..\). 
365. That there would be no difference or little difference 
c 
or a manageable difference of opinion between the President 
and the Chief Justice of India or that the judiciary should have 
a final say in the matter so as not to make the consultation 
process a mere formality, is quite apparent from the fact that 
D the Constituent Assembly deliberately drew a distinction 
between the appointment by the President of a judge of the 
Supreme Court and a judge of the High Court (on the one hand) 
and the appointment by the President of other constitutional 
authorities. For the appointment of a judge, it is mandated in 
E the Constitution that the President must consult the Chief 
Justice of India. However, to appoint the Comptroller and 
Auditor' General under Article 148 of the Constitution (for 
example); the President is under no such obligation to consult 
F 
anybody even though the position is one of vital importance. 
Dr. Ambedkar had said in
this regard: 
"I cannot say I am very happy about the position which 
the Draft Constitution, including the amendments which 
have been moved to the articles relating to the Auditor-
G 
General in this House, assigns to him. Personally 
speaking for myself, I am of opinion that this dignitary or 
officer is probably the most important officer in the 
Constitution of India. He is the one man who is going to 
see that the expenses voted by Parliament are not 
H 
exceeded, or varied from what has been laid down by
SUPREME COURT ADVOCATES-ON-RECORD 
837 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Parliament in wbat is called the Appropriatio~ Act. If this A 
functionary is to carry out the duties - and his duties, I 
submit, are far more important than the duties eveh of 
the judiciary - he should have been certainly as . 
independent as the Judiciary. But, comparing the articles 
about the Supreme Court and the articles relating to the 
B 
Auditor-General, I cani:iot help saying that we have not 
· . given him the same independence which we have given 
to the Judiciary, although I personally feel that he ought 
to have far. greater independence than the Judiciary .· 
. itself."362 · 
· 
· 
·· 
· 
' 
C 
Similarly, the appointment of the Chief Election 
Commissioner and the Election Commissioners under Article 
324 of the Constitution does not require the President to consult 
anybody, even though free and fair elections are undoubtedly D 
vital to our democracy. Since the consultation provision was 
incorporated only for the appointment of judges, surely; the 
Constituent Assembly had good reasons for making this 
distinction. Justice Khehar has referred to other Presidential 
appointments in his draft judgment and it is not necessaryto 
E 
repeatthem: What is importanris the 'message'· sought to be 
conveyed by the ConstituentAsserrihly'and the sanctity given 
to a recommendation by the GhiefJusUce of India for the· 
appointment of a judge of ttie Supreme Court or the High C'ourt
366 .. It is trite that the Constitution is a living document.363 
F 
Keeping this in mind, could it be said that a strained· 
interpretation has been given to Article 124(2) and Article 
217 ( 1) of the Constitution particularly when the substitution of 
'consultation' with 'concurrence' in the draft of Article 124 was G 
discussed in the Constituent Assembly and not accepted?364 · 
Definitely not, particularly if one looks at the context .in which 
362 http'//par!iamentofindia ojc in/ls/debates/vol8p11 a htm 
363 1.R. Coelho v. State of Tamil Na du, (2007) 2 SCC 1 paragraph 42 
364 Foot Nofe 16 
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A 
'consultation' is used and the purpose for which it is used, 
namely, to fetter the discretion of the President by someone 
who knows what is in the best interests of the judiciary. · 
367. But, as mentioned earlier, it is not necessary to dwell 
8 
at length upon the correctness or otherwise of the procedure 
for the appointment of a judge as laid down in the Second 
Judges case and the Third Judges case. The question really 
is whether the change in the procedure of appointment of judges 
violates the basic structure of the Constitution. Can the 
c Judiciary be independent if the appointment process is in the 
hands of the National Judicial Appointments Commission? 
Amendment of the Constitution through Article 368 
368. Proceeding on the basis, as we should, that the 
0 
independence of the judiciary is a part of the basic structure of 
the Constitution, and that the appointment of a judge to the 
Supreme Court or a High Court is an integral and foundational 
part of the independence of the judiciary, the question that 
arises is to what extent, if at atl, can the appointment process 
E be tinkered with by Parliament. 
369. Article 368 of the Constitution provides for the 
'Power of Parliament to amend the Constitution and procedure 
therefor'. While the power is vast, empowering Parliament to 
add, vary or repeal any provision of the Constitution, the breadth 
F of that power has inherent limitations as explained in
Kesavananda Bharatiwhich is that the basic structure of the 
Constitution cannot be altered. What constitutes the basic 
structure of the Constitution has been considered in several 
G decisions of this Court and democracy (for example) or free 
and fair elections or judicial review of legislative action or 
separation (or distribution) of powers between the Legislature, 
the Executive and the Judiciary have all been held to be a part 
of the basic structure of the Constitution. There is no doubt, 
H and no one has disputed it, that the independence of the
SUPREME COURT ADVOCATES-ON-RECORD 
839 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
judiciary is also a part of the basic structure of the Constitution. A 
370. The constitutional requirement for amending the 
Constitution is: (a) The amendment may be initiated only by 
the introduction of a Bill for the purpose; 
(b) The Bill may be moved in either House of Parliament; 
B 
(c) The Bill ought to be passed in each House 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; (d) The Bill shall be presented to the President who 
shall give his assent to the Bill and thereupon the Constitution C 
shall stand amended in accordance with the terms of that Bill. 
371. There is a proviso to Article 368 of the Constitution 
· and for the present purposes, the further requirement is that 'if 
such amendment seeks to make any change' in Chapter IV of D 
Part V (The Union Judiciary) and Chapter V of Part VI (The 
High Courts in the States) the amendment 'shall also require 
to be ratified by the Legislatures of the States by resolution to 
that effect passed by those Legislatures before the Bill making 
provision for such amendment is presented to the President 
E 
for assent.' 
372. As far the Constitution (One Hundred and Twenty-
firstAmendment) Bill, 2014 is concerned, there is no doubt or 
dispute that the procedure mentioned above was followed and 
that it received the assent of the
President on 31 51 December, 
F 
2014. To that extent the Constitution (Ninety-ninth)Amendment 
Act, 2014 is a procedurally valid legislation. 
Limitations to amending the Constitution 
373. To appreciate the inherent limitations placed on 
G 
Parliament with regard to an amendment to the Constitution, it 
is necessary to consider the views constituting the majority in 
Kesavananda Bharati. In that case, the question before this 
Court (as framed by Chief Justice Sikri) was: What is the extent 
H
840. 
SUPREME COURT REPORTS 
[2015]13S.C.R. 
A 
of the amending power conferred by Article 368 of the 
Constitution, apart from Article 13(2) on Parliament? 
374. The learned Chief Justice noted that the word 
'amendment' has not been defined in the Constitution. In some 
8 
provisions of the Constitution it has a narrow meaning, while 
in other provisions it has an expansive meaning. This view 
was expressed by Justice Shelat and Justice Grover as well, 
who observed that the words 'amendment' and 'amend' have 
been used to convey different meanings in different provisions 
c of the Constitution. In some Articles these words have a narrow 
meaning while in others the meaning is much larger or broader. 
The word is not one of precise import and has not been used 
in different provisions of the Constitution to convey the same 
meaning. This is of some significance since it is on this basis 
D that this Court referred to the CAD to interpret the words 
'amendment' and 'amend'. 
375. On a reading of various provisions of the 
Constitution the learned Chief Justice concluded that the 
expression 'amendment of this Constitution' occurring in Article 
E 368 thereof would mean any addition or change in any 
provision of the Constitution 'within the broad contours of the 
Preamble and the Constitution to carry out the objectives in 
the Preamble and the directive principles. Applied to 
F fundamental rights, it would mean that while fundamental rights 
cannot be abrogated,
reasonable abridgments of fundamental 
rights can be effected in the public interest.'365 In this context, 
the learned Chief Justice referred to the Universal Declaration 
of Human Rights to conclude that certain rights of individuals 
G are inalienable.366 
365 Paragraph 287 
366 Article 8 and 10 of the UDHR are relevant in this regard: 
Article 8: Everyone has the right to an effective remedy by the competent 
national tribunals for acts violating the fundamental rights granted him by the 
constitution or by law. 
Article 10: Everyone is entitled in full equality to a fair and public hearing by an 
H 
independent and impartial tribunal, in the determination of his rights and 
obligations and of any criminal charge against him.
SUPREME COURT ADVOCATES-ON~RECORD 
841 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
376. The learned Chief Justice concluded by holding,. A 
inter alia: 
"The expression "amendment of this Constitution" does 
not enable Parliament to abrogate or take away 
fundamental rights or to completely change the 
8 
fundamental features of the Constitution so as to destroy 
its identity. Within these limits Parliament can amend 
every article."367 
377. Justice Shelat and Justice Grover looked at the text 
of Article 368 as it stood prior to its amendment by the 241h C 
Constitution Amendment Act and observed that there is intrinsic 
evidence to suggest that the amending power of Parliament 
is limited. However widely worded the power might be, it cannot 
be used to render the Constitution to lose its character or 
nature or identity and it has to be exercised within the 
D 
framework of the Constitution. It was observed that an unlimited 
power of amendment cannot be conducive to the survival of 
the Constitution. On this basis, it was concluded that: 
"The meaning of the words "amendment of this E 
Constitution" as used in Article 368 must be such which 
accords with the true intention of the Constitution-makers 
as ascertainable from the historical background, the 
Preamble, the entire scheme of the Constitution, its 
structure and framework and the intrinsic evidence in 
F 
various articles including Article 368. It is neither possible 
to give it a narrow meaning nor can such a
wide meaning 
be given which can enable the amending body to change 
substantially or entirely the structure and identity of the 
Constitution."368 
G 
378. Justice Hegde and Justice Mukherjea observed that 
Article 368 cannot be interpreted in a narrow and pedantic 
367 Paragraph 475 
368 Paragraph 546 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
manner but must be given a broad and liberal interpretation. It 
was observed that the word 'amendment' has no precise 
meaning and that it is a 'colourless' word. In fact, the words 
'amendment' and 'amend' have been used in the Constitution 
in different places with different connotations. Notwithstanding 
B this, the learned judges were of the view that the meaning of 
these expressions cannot be as expansive as to enable 
Parliament to change the 'personality' of the Constitution since 
its scheme and structure proceed 'on the basis that there are 
certain basic features which are expected to be permanent.' 
C Therefore, the amending power under Article 368 of the 
Constitution is subject to implied limitations. 
D 
E 
F 
G 
H 
379. Having considered all these factors, the learned 
judges concluded that: 
"On a careful consideration of the various aspects of the 
case, we are convinced that the 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._ Nor has 
the Parliament the power to revoke the mandate to build 
a welfare State and egalitarian society. These limitations 
are only illustrative and not exhaustive. Despite these 
limitations, however, there can be no question that the
amending power is a wide power and it reaches every -
Article and every part of the Constitution. That power can 
be used to reshape the Constitution to fulfil the obligation 
imposed on the State. It can also be used to reshape the 
Constitution within the limits mentioned earlier, to make 
it an effective instrument for social good. We are unable 
to agree with the contention that in order to build a welfare 
State, it is necessary to destroy some of the human
SUPREME COURT ADVOCATES-ON-RECORD 
843 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
freedoms. That, at any rate is not the perspective of our A 
Constitution. "369 
380. Justice Khanna dwelt on the basic structure of the 
Constitution and expressed the view that 'amendment' 
postulates the survival of the 'old' Constitution without loss of 8 
its identity and the retention of the basic structure or framework 
of the 'old' Constitution. It was held: 
"Although it is permissible under the power of 
amendment to effect changes, howsoever important, and 
to adapt the system to the requirements of changing 
C 
conditions, it is not permissible to touch the foundation 
or to alter the basic institutional pattern. The words 
"amendment of the Constitution" with all their wide sweep 
and amplitude cannot have the effect of destroying or 
abrogating the basic structure or framework of the 
D 
Constitution." 
381. Thereafter, Justice Khanna travelled much further 
than necessary and held that as long as the basic structure 
and framework of the Constitution is retained, the plenary power E 
of amendment 'would include within itself the power to add, 
alter or repeal the various articles including those relating to 
fundamental rights.' The rationale for this was given a little later 
in the judgment in the following words: 
"The word "amendment" in Article 368 must carry the 
F 
same meaning whether the amendment relates to taking 
away or abridging fundamental rights in Part Ill of
the 
Constitution or whether it pertains to some other provision 
outside Part 111 of the Constitution. No serious objection 
is taken to repeal, addition or alteration of provisions of G 
the Constitution other than those in Part 111 under the power 
of amendment conferred by Article 368. The same 
approach, in my opinion, should hold good when we deal 
'" Paragraph 666 
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844 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
A 
with amendment relating to fundamental rights contained 
in Part Ill of the Constitution. It would be impermissible to 
differentiate between scope and width of power of 
amendment when it deals with fundamental right, and the 
scope and width of that power when it deals with 
B 
provisions not concerned with fundamental rights."370 
c 
D 
E 
382. The conclusion arrived at by Justice Khanna is stated 
by the learned judge in the following words: 
"The power of amendment under Article 368 does not 
include the power to abrogate the Constitution nor does 
it include the power to alter the basic structure or 
framework of the Constitution. Subject to the retention of 
the basic structure or framework of the Constitution, the 
power of amendment is plenary and includes within itself 
the power to amen·d the various articles of the 
Constitution, including those relating to fundamental rights 
as well as those which may be said to relate to essential 
features. No part of a fundamental right can claim 
immunity from amendatory process by being described 
as the essence, or core of that right. The power of 
amendment would also include within itself the power to 
add, alter or repeal the various articles."371 
383. It may be mentioned en passantthat the aforesaid 
F view expressed by Justice Khanna generated much 
controversy. That was adverted to by the learned judge in Indira 
Nehru Gandhi and it was clarified in paragraphs 251
and 
252 of the Report that the 'offending' passages were in the 
context of the extent of the amending power and not in the 
G context of the basic structure of the Constitution. The learned 
judge clarified that fundamental rights were a part of the basic 
structure of the Constitution but the right to property was not. 372 
370 Paragraph 1435 
371 Paragraph 1537 
H 
372 Paragraphs 251 and 252. Justice Bhagwati also adverts to this in Minerva 
Mills v. Union of India, (1980) 3 SCC 625.
SUPREME COURT ADVOCATES-ON-RECORD 
845 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
384. Simplistically put, the sum and substance of the A 
decision in Kesavananda Bharati is that it recognized that 
the Constitution has a basic. structure and that the basic 
structure of the Constitution is unalterable. Perhaps to avoid 
any doubts and since as many as nine judgments were 
delivered by the thirteen judges constituting the Bench, a 
B 
summary of the conclusions was prepared. This summary was 
signed by nine of the thirteen judges. Among the nine 
signatories were two learned judges who were in the minority. 
One of the conclusions agreed upon by the nine learned judges 
who signed the summary was: 'Article 368 does not enable C 
Parliament to alter the basic structure or framework of the 
Constitution.' 
Judicial review of an amendment to the Constitution 
385. In Indira Nehru Gandhi it was held that an 
D 
amendment to the Constitution can be challenged only on the 
ground of violation of the basic structure, while a statute cannot 
be so challenged. A statute can be challenged only if it is 
passed by a Legislature beyond its legislative competence or 
if it offends Article 13 of the Constitution. 373 
E 
373 13. Laws inconsistent with or in derogation of the fundamental rights -
(f) All laws in force in the territory of India immediately before the 
commencement of this Constitution, in so far as they are inconsistent with 
the provisions of this Part, shall, to the
extent of such inconsistency, be void. 
F 
(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. 
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, 
custom or usage having in the territory of India the force of law; 
{b) "laws in force" includes laws passed or made by a Legislature or other 
G 
competent authority in the territory of India before the commencement of this 
Constitution and not previously repealed, notwithstanding that any such law 
or any part thereof may not be then in operation either at all or in particular 
areas. 
(4) Nothing in this article shall apply to any amendment of this Constitution 
made under Article 368. 
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"The constitutional amendments may, on the ratio of the 
Fundamental Rights case,374 be tested on the anvil of 
basic structure. But apart from the principle that a case 
is only an authority for what it decides, it does not logically 
follow from the majority judgment in the Fundamental 
Rights case that ordinary legislation must also answer 
the same test as a constitutional amendment. Ordinary 
laws have to answer two tests for their validity: ( 1) The 
·law must be within the legislative competence of the 
legislature as defined and specified in Chapter I, Part XI 
of the Constitution, and (2) it must not offend against the 
provisions of Article 13(1) and (2) of the Constitution. 
"Basic structure", by the majority judgment, is not a part 
of the fundamental rights nor indeed a provision of the 
Constitution. The theory of basic structure is woven out 
of the conspectus of theConstitution and the amending 
power is subjected to it because it is a constituent power. 
"The power to amend the fundamental instrtJment cannot 
carry with it the power to destroy its essential features-
this, in brief, is the arch of the theory of basic structure. It 
is wholly out of place in matters relating to the validity of 
ordinary laws made under the Constitution." 
386. A similar view was taken in State of Karnataka v. 
Union of /ndia 375 wherein the above passage from Indira 
F Nehru Gandhi was quoted with approval. It was
said by 
Justice Untwalia in a concurring judgment for himself, Justice 
Shinghal and Justice Jaswant Singh: 
G 
"Mr. Sinha also contended that an ordinary law cannot 
go against the basic scheme or the fundamental 
backbone of the Centre-State relationship as enshrined 
in the Constitution. He put his argument in this respect in 
a very ingenious way because he felt difficulty in placing 
374 Kesavananda Bharati 
H 
375 (1977) 4 sec 608 paragraph 238 (Seven Judges Bench)
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847 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
it in a direct manner by saying that an ordinary law cannot A 
violate the basic structure of the Constitution. In the case 
of Smt Indira Nehru Gandhi v. Shri Raj Narain such an 
argument was expressly rejected by this Court. We may 
rest content by referring to a passage from the judgment 
of our learned brother Chandrachud, J. which runs 
B 
thus ........... " 
387. In Ku/dip Nayarv. Union oflndia376 a Constitution 
Bench reiterated the above view in the following words: 
"The basic structure theory imposes limitation on the C 
power of Parliament to amend the Constitution. An 
amendment to the Constitution under Article 368 could 
be challenged on the ground of violation of the basic 
structure of the Constitution. An ordinary legislation 
cannot be so challenged. The challenge to a law made, 
D 
within its legislative competence, by Parliament on the 
ground of violation of the basic structure of the 
Constitution is thus not available to the petitioners." 
388. Finally, in Ashoka Kumar Thakur v. Union of E 
lndia377 it was held that a law can be challenged if it violates a 
provision of the Constitution but an amendment to the 
Constitution can be challenged only if it violates a basic feature 
of the Constitution which is a part of its basic structure. It was 
h~d: 
F 
"For determining whether a particular feature of the 
Constitution is part of the basic structure or not, it has to
be examined in each individual case keeping in mind 
the scheme of the Constitution, its objects and purpose G 
and the integrity of the Constitution as a fundamental 
instrument for the country's governance. It may be noticed 
that it is not open to challenge the ordinary legislations 
376 (1996) 7 sec 1 paragraph 107 (Five Judges Bench) 
377 (2008) 6 sec 1 paragraph 116 (Five Judges Bench) 
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A 
on the basis of the basic structure principle. State 
legislation can be challenged on the question whether it 
is violative of the provisions of the Constitution. But as 
regards constitutional amendments, if any challenge is 
made on the basis of basic structure, it has to be 
B 
examined based on the basic features of the 
Constitution." 
389. A different opinion was expressed in Madras Bar 
Association v. Union of lndia378 wherein it was held that the 
c view that an amendment to the Constitution can be challenged 
on the ground of violation of the basic structure of the 
Constitution is made applicable to legislation also. This was 
assumed to be a logical extension of a principle. It was held: 
"This Court has repeatedly held that an amendment to 
D 
the provisions of the Constitution would not be 
sustainable if it violated the "basic structure" of the 
Constitution, even though the amendment had been 
carried out by following the procedure contemplated 
E 
F 
under "Part XI" of the Constitution. This leads to the 
determination that the "basic structure" is inviolable. In 
our view, the same would apply to all other legislations 
(other than amendments to the Constitution) as well, even 
though the legislation had been enacted by following the 
prescribed procedure, and was within the domain of the 
enacting legislature, any infringement to the "basic 
structure" would be unacceptable." 
390. For the purposes of the
present discussion, I would 
prefer to follow the view expressed by a Bench of seven learned 
G judges in State of Karnataka v. Union of India that it is only 
an amendment of the Constitution that can be challenged on 
the ground that it violates the basic structure of the Constitution 
- a statute cannot be challenged on the ground that it violates 
378 (2014) 10 SCC 1 paragraph 109 (Five Judges Bench) 
H
SUPREME COURT ADVOCATES-ON-RECORD 
849 
ASSOCIATION v. U.O:I. [MADAN B. LOKUR, J.] 
the basic structure of the Constitution. [The only exception to A 
this perhaps could be a statute placed in the Ninth Schedule 
of the Constitution]. The principles for challenging the 
constitutionality of a statute are quite different. 
Challenge to the 991h Constitution Amendment Act 8 
- the preliminaries 
(a) Limitations to the challenge 
391. The first submission made by the learned Attorney-
General for upholding the constitutionality of the 99th C 
Constitution Amendment Act was on the basis of 
Kesavana.nda Bharati. It was submitted that a Constitution 
Amendment Act can be challenged as violating the basic 
structure of the Constitution within limited parameters, that is, 
only if it 'emasculates' the Constitution, or 'abrogates' it or D 
completely changes its fundamental features so as to destroy 
its identity or personality or shakes the pillars on which it rests. 
While accepting that the independence of the judiciary is one 
such pillar, it was submitted that a change in the method and 
procedure in the appointment of a judge of the Supreme Court E 
or a High Court does not emasculate, abrogate or shake the 
foundations or the pillars of the independence of the judiciary. 
Consequently the 991h Constitution Amendment Act does not 
fall foul of the basic structure of the Constitution. 
392. This argument fails to appreciate that a majority of F 
the learned judges constituting
the Bench that decided 
Kesavananda Bharati were of the opinion that it is enough 
to declare a constitutional amendment as violating the basic 
structure if it alters the basic structure. Undoubtedly, some of G 
the learned judges have used very strong words in the course 
of their judgment - emasculate, destroy, abrogate, and 
substantially change tne identity .etc. but when it came to stating 
what is the law actually laid down, the majority decided that 
'Article 368 does not enable Parliament to alter the basic H
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[2015] 13 S.C.R. 
A 
structure or framework of the Constitution. '379 
393. This was reiterated and explained by Justice Khanna 
in Indira Nehru Gandhi. The words 'destroy' and 'abrogate' 
etc. were used with reference to the words 'amendment' and 
B 
'amendment of the Constitution' which is to say that 
'amendment' and 'amendment of the Constitution' cannot be 
interpreted expansively as meaning 'destroy' or 'abrogate' etc. 
but have a limited meaning. The words 'destroy' and 'abrogate' 
etc. were not used in the context of destroying or abrogating 
c the basic structure of the Constitution. The learned judge clearly 
said that 'the power of amendment under Article 368 [of the 
Constitution] does not enable the Parliament to alter the basic 
structure of [or] framework of the Constitution ... .' In fact, this 
was the precise submission of learned counsel for the election 
o petitioner, namely, that the constitutional amendment 'affects 
the basic structure or framework of the Constitution and is, 
therefore, beyond the amending power under Article 368 [of 
the Constitution].'380 The learned judge explained this crucial 
E 
F 
G 
distinction in the following words: 
"The proposition that the power of amendment under 
Article 368 does not enable Parliament to alter the basic 
structure of framework of the Constitution was laid down 
by this Court by a majority of 7 to 6 in the case of His 
Holiness Kesavananda Bharati v. State of Kera/a. Apart
from other reasons which were given in some of the 
judgments of the learned Judges who constituted the 
majority, the majority dealt with the connotation of the word 
"amendment". It was held that the words "amendment of 
the Constitution" in Article 368 could not have the effect 
of destroying or abrogating the basic structure of the 
Constitution. Some of us who "'(ere parties to that case 
379 Justice Khanna refers to this conclusion in paragraph 198 in the decision 
rendered in Indira Nehru Gandhi 
H 
380 Paragraph 173
SUPREME COURT ADVOCATES-ON-RECORD 
851 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
. 
took a different view and came to the conclusion that the A 
words "amendment of the Constitution" in Article 368 did 
not admit of any limitation. Those of us who were in the 
minority in Kesavananda case may still hold the same 
view as was given expression to in that case. For the 
purpose of the present case, we shall have to proceed 
B 
in accordance with the law as laid down by the majority 
in that case."381 
394. While dealing with the constitutional validity of 
Clause (4) of Article 329-A of the Constitution as introduced c 
by the 391h Constitution Amendment Act, Justice Khanna 
expressed the view that if a principle, imperative rule or 
postulate of the basic structure of the Constitution is violated, 
then the constitutional amendment loses its immunity from 
attack. 
D 
"The question to be decided is that if the impugned 
amendment of the Constitution violates a principle which 
is part of the basic structure of the Constitution, can it 
enjoy immunity from an attack on its validity because of 
the fact that for the future, the basic structure of the 
E 
Constitution remains unaffected. The answer to the 
above question, in my opinion, should be in the negative. 
What has to be seeh in such a matter is whether the 
amendrrient contravenes or runs counter to an imperative 
F 
rule or postulate which is an integral part of the basic 
structure of the Constitution. If so, it
would be an 
impermissible amendment and it would make no 
difference whether it relates to one case or a large 
number of cases. If an amendment striking at the basic G 
structure of the Constitution is not permissible, it would 
not acquire validity by being relat~d only to one case. To 
accede to the argument advanced in support of the 
381 Paragraphs 175 and 176 
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validity of the amendment would be tantamount to holding 
that even though it is not permissible to change the basic 
structure of the Constitution, whenever the authority 
concerned deems it proper to make such an amendment, 
it can do so and circumvent the bar to the making of such 
an amendment by confining it to one case. What is 
prohibited cannot become permissible because of i~s 
being confined to one matter."382 
In conclusion it was said by Justice Khanna as follows: 
"As a result of the above, I strike down clause (4) of Article 
329-A on the ground that it violates the principle of free 
and fair elections which is an essential postulate of 
democracy and which in its turn is a part of the basic 
structure of the Constitution inasmuch as (1) it abolishes 
the forum without providing for another forum for going 
into the dispute relating to the validity of the election of 
the appellant and further prescribes that the said dispute 
shall not be governed by any election law and that the 
validity of the said election shall be absolute and not 
consequently be liable to be assailed, and (2) it 
extinguishes both the right and the remedy to challenge 
the validity of the aforesaid election."383 
395. Similarly, Justice K.K. Mathew who was in the 
F 
minority in Kesavananda Bharati expressed the view (in 
Indira Nehru Gandhi) that the majority decision was that by 
an amendment, the basic structure of the
Constitution cannot 
be damaged or destroyed, and the learned judge proceeded 
on that basis and held that Clause (4) of Article 329-A of the 
G Constitution as introduced by the 39t11 Constitution Amendment 
Act damaged or destroyed the basic structure of the 
Constitution.384 
382 Paragraph 210 
383 Paragraph 213 
H 
384 Paragraph 264 and 265
SUPREME COURT ADVOCATES-ON-RECORD 
853 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
396. Justice Y.V. Chandrachud who too Was in the A 
minority in Kesavananda Bharati took the view that according 
to the majority opinion in that decision the principle that 
emerged was that Article 368 of the Constitution 'does not 
confer power on Parliament to alter the basic structure or 
framework of the Constitution.'385 The learned judge further said 
B 
that the ratio decidendi in Kesavananda Bharati was that 
'the power of amendment [in Article 368 of the Constitution] 
cannot be exercised to damage or destroy the essential 
elements or basic structure of the Constitution, whatever these 
expressions may comprehend.' 386 
C 
397. The issue again came up for consideration in 
Minerva Mills v. Union of India. 387 The question in that case 
was whether Section 4 and Section 55 of the 42°d Constitution 
Amendment Act transgress the limitation of the amending 
D 
power of Article 368 of the Constitution. Speaking for himself 
and the other learned judges in the majority (Justice A.C Gupta, 
Justice N.L. Untwalia and Justice P.S. Kailasam) it was held 
by Chief Justice Chandrachud that: 
"In Kesavananda Bharati, this Court held by a majority E 
that though by Article 368 Parliament is given the power 
to amend the Constitution, that power cannot be 
exercised so as to damage the basic features of the 
Constitution or so as to destroy its basic structure. The 
F 
question for consideration
in this group of petitions under 
Article 32 is whether Sections 4 and 55 of the 
Constitution (42ndAmendment)Act, 1976 transgress that 
limitation on the amending power."388 
A little later in the judgment, it was held as follows: 
G 
'The summary of the various judgments in Kesavananda 
385 Paragraph 651 
386 Paragraph 663 
387 (1980) 3 SCC 625 (Five Judges Bench) 
'" Paragraph 1 
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A 
Bharati was signed by nine out of the thirteen Judges. 
Para ·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 
B 
judgment, or is per incuriam for the scholarly reasons 
cited by authors, it is undeniable that it correctly reflects 
the majority view. 
The question which we have to determine on the basis 
c 
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."389 
D 
It appears from the above exposition of the ratio 
decidendi in Kesavananda Bharatithat the words 'alter' and 
'damage' are used interchangeably. Similarly, 'damage the 
basic features' and 'destroy the basic structure' are used 
interchangeably with 'damage the basic structure' and 'destroy 
E the basic features'. 390 The bottom line is what is contained in 
the 'summary' of Kesavananda Bharati, namely: Article 368 
does not enable Parliament to alter the basic structure or 
framework of the Constitution. There are two reasons for this. 
F 
Firstly, it is a contemporaneous exposition of the views of the 
majority in Kesavananda Bharati and there is no other or 
different exposition
and secondly, the exposition is by the 
majority of judges themselves (including two in the minority) 
and by no other. 
G 
398. It may be mentioned that some misgivings were 
'" Paragraphs 12 and 13 
390 I am unable to agree with Justice Chelameswar when he says that the 
'basic structure' and 'basic features' convey different ideas. Lexicographically 
- yes, but constitutionally speaking - no. they are two dimensions of the 
same picture. In any event, for the present discussion, the distinction, if any, 
H 
is not relevant.
SUPREME COURT ADVOCATES-ON-RECORD 
855 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
expressed 'about' Minerva Mills in Sanjeev Coke A 
Manufacturing Co. v. Bharat Coking Coal Ltd. 391 The 
misgivings were not spelt out by the Bench except that it is 
stated that the case 'has left us perplexed' seemingly for the 
reason that no question had arisen regarding the constitutional 
validity of Section 4 and Section 55 of the 42"d Constitution 
B 
Amendment Act. 392 This is rather odd since the majority 
desision in Minerva Mills begins by stating: The question for 
consideration in this group of petitions under Article 32 is 
whether Sections 4 and 55 of the Constitution (42nd 
Amendment) Act, 1976 transgress that limitation on the 
C 
amending power.' Justice Bhagwati who partly dissented from 
the -¥iews of the majority also stated that the constitutional 
validity of Sections 4 and 55 of the Constitution (42nd 
Amendment) Act, 1976 were under challenge. 393 However, it D 
is not necessary tci enter into this thicket, but it must be n?ted 
that Sanjeev Coke did not disagree with Minerva Mills in its 
understanding of Kesavananda Bharati. 
399. More recently, in M. Nagaraj v. Union of lndia394 it 
was held (rephrasing Justice Khanna in Indira Nehru Gandhi) E 
that the basic structure doctrine is really a check on the 
amending power of Parliament. The basic structure of the 
Constitution consists of constitutional principles that are so 
fundamental that they limit the amending
power of Parliament. 
It was concluded that the basic structure theory is based on 
F 
the concept of constitutional identity (rephrasing Justice 
Bhagwati in Minerva Mills). It was then said: 
"The basic structure jurisprudence is a preoccupation with 
constitutional identity. In Kesavananda Bharativ. State G 
of Kera/a it has been observed that "one cannot legally 
391 (1983) 1 SCC 147 (Five Judges Bench) 
392 Paragraph 11 
393 Paragraph 77-A 
394 (2006) 8 SCC 212 (Five Judges Bench) 
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[2015] 13 S.C.R. 
use the Constitution to destroy itself'. It is further observed 
"the personality of the Constitution must remain 
unchanged". Therefore, this Court in Kesavananda 
Bharatiwhile propounding the theory of basic structure, 
has relied upon the doctrine of constitutional identity. The 
word "amendment" postulates that the old Constitution 
survives without loss of its identity despite the change 
and it continues even though it has been subjected to 
alteration. This is the constant theme of the opinions in 
the majority decision in Kesavananda Bharati. To destroy 
its identity is to abrogate the basic structure of the 
Constitution. This is the principle of constitutional 
sovereignty ...... The main object behind the theory of the 
constitutional identity is continuity and within that continuity 
of identity, changes are admissible depending upon the 
situation and circumstances of the day." 
400. The 'controversy' is now set at rest with the decision 
rendered in /.R. Coelho where alteration of the basic structure 
has been accepted as the test to determine the constitutional 
E 
validity of an amendment to the Constitution. It was said: 
.. 
F 
G 
'The decision in Kesavananda Bharati case was 
rendered on 24-4-1973 by a thirteen-Judge Bench and 
by majority of seven to six Golak Nath case395 was 
overruled. The majority opinion held thatArticle 368 did 
not enable Parliament to alter the basic structure or 
framework
of the Constitution."396 
And again, 
"In Kesavananda Bharati case- the majority held that the 
power of amendment of the Constitution under Article 
368 did not enable Parliament to alter the basic structure 
of the Constitution."397 
395 [1967] 2 SCR 762 (Eleven Judges Bench) 
396 Paragraph 21 
H 
3" Paragraph 119
SUPREME COURT ADVOCATES-ON-RECORD 
857 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
The attack, therefore, is not on the basic structure of the A 
Constitution but on the amending power of Parliament. 
401. The learned Attorney-General placed reliance on 
the following passage from the judgment of Justice Krishna 
Iyer in Bhim Singhji v. Union of lndia398 to contend t~at for a 
B 
constitutional amendment to violate the basic structure, it must 
be shocking, unconscionable or an unscrupulous travesty of 
the quintessence of equal justice. That case .dealt with the 
constitutional validity of the Urban Land (Ceiling and 
Regulation)Act, 1976 which was placed in the Ninth Schedule c 
to the Constitution by the 401h Constitution Amendment Act, 
1976 and therefore had the protection of Article 31-B and Article 
31-C of the Constitution. In that context, it was hEtld that the 
question of the basic structure of the Constitution does not 
arise if the constitutional validity of legislation (as distinguished D 
from a constitutional amendment) is under challenge. It was 
then said: 
'The question of basic structure being breached cannot 
arise when we examine the vi res of an ordinary legislation E 
as distinguished from a constitutional amendment. 
Kesavananda Bharati cannot be the last refuge of the 
proprietariat when benign legislation takes away their 
"excess" for societal weal. Nor, i_ndeed, can every breach 
of equality spell disaster as a lethal violation of the basic F
st~ucture. Peripheral inequality is inevitable when large-
scale equalisatton processes are put into action. If all 
the Judges of the Supreme Court in solemn session sit 
and deliberate for half a year to produce a legislation for 
reducing glaring economic inequality their genius will let G 
them down if the essay is to avoid even peripheral 
inequalities. Every large cause claims some martyr, as 
sociologists will know. Therefore, what is a betrayal of 
399 (1981) 1SCC166 (Five Judges Bench) 
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[2015] 13 S.C.R. 
A 
the basic feature is not a mere violation of Article 14 but 
a shocking, unconscionable or unscrupulous travesty of 
the quintessence of equal justice. If a legislation does 
go that far it shakes the democratic foundation and must 
B 
suffer the death penalty."399 
402. This decision dealt with a statute placed in the Ninth 
Schedule of the Constitution and is, therefore, a class apart 
as far as the present discussion is concerned. 
403. From this analysis, it must be concluded that if a 
C constitutional amendment alters the basic structure of the 
Constitution, then it can and should be declared 
unconstitutional. What is of importance is the 'width of power' 
test propounded by Mr. Palkhivala in Kesavananda Bharati 
and adopted in M. Nagaraj and now rechristened in l.R. 
D Coelho as the direct impact and effect test 'which means the 
form of an amendment is not relevant, its consequence would 
be [the] determinative factor.'400 
404. In the light of the above discussion the question, 
E therefore, is this: How does the 991h Constitution Amendment 
Act alter the basic structure of the Constitution, if at all? There 
is no doubt or dispute that the independence of the judiciary is 
a basic structure of the Constitution. I have already held that 
the appointment of a judge to the Supreme Court and a High 
F Court is an integral part of the independence of the judiciary. 
Therefore, has the introduction of th~ NaHonal
Jl:ldicial 
Appointments Commission by the 99 1h Constitution 
Amendment Act so altered the appointment process as to 
impact on the independence of the judiciary thereby making 
G the 991h Constitution Amendment Act unconstitutional? The 
learned Attorney-General answered this in the negative. 
(b) Presumption of constitutionality 
399 Paragraph 20 
H 
•00 Paragraph 70 and 151
SUPREME COURT ADVOCATES-ON-RECORD 
859 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
405. The learned Attorney-General submitted that there A 
is a presumption in law that the 99th Constitution Amendment 
Act is constitutionally valid and that the petitioners have not 
been able to rebut that presumption. 
406 .. In Charanjit Lal Chowdhuri v. Union of lndia401 
8 
Justice Fazal Ali expressed the view that 'the presumption is 
always in favour of the constitutionality of an enactment.' 
407. Similarly, in Ram Krishna Dalmia v. Justice S.R. 
Tendolkar4°2 it was held, on a consideration of the decisions 
of this Court by Chief Justice S.R. Das that 'there is always a 
C 
presumption in favour of the constitutionality of an enactment 
and the burden is upon him who attacks it to show that there 
has been a clear transgressions of the constitutional principles.' 
408. In Kesavananda Bharati it was held by Justice D 
Hegde and Justice Mukherjea that: 
"But the courts generally proceed on the presumption of 
constitutionality of all legislations. The presumption of the 
constitutional validity of a statute will also apply to 
constitutional amendments."403 
E 
409. Finally, in R.K. Garg v. Union of /ndia404 it was 
held by Justice Bhagwati, speaking for the Court as follows: 
"Now while considering the constitutional validity of a 
statute said to be violative of Article 14, it is necessary F 
to bear in mind certain well established principles which 
have been evolved by the courts
as rules of guidance in 
discharge of its constitutional function of judicial review. 
The first rule is that there is always a presumption in favour 
of the constitutionality of a statute and the burden is upon G 
him who attacks it to show that there has been a clear 
401 [1950) SCR 869 (Five Judges Bench) 
402 [1959) SCR 279 (Five Judges Bench) 
403 Paragraph 661 
404 (1981) 4 SCC 675 (Five Judges Bench) 
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[2015] 13 S.C.R. 
transgression of the constitutional principles. This rule is 
based on the assumption, judicially recognised and 
accepted, that the legislature understands and correctly 
appreciates the needs of its own people, its laws are 
directed to problems made manifest by experience and 
its discrimination are based on adequate grounds. The 
presumption of constitutionality is indeed so strong that 
in order to sustain it, the Court may take into 
consideration matters of common knowledge, matters 
of common report, the history of the times and may 
assume every state of facts which can be conceived 
existing at the time of legislation."405 
410. It is not possible to disagree with the learned 
Attorney-General in this regard. A statute or a constitutional 
o amendment must always be deemed to be constitutionally valid 
and it is for those challenging the validity to demonstrate a 
violation of the Constitution or an alteration of the basic 
structure of the Constitution, as the case may be. As far as the 
petitioners are concerned, it is for them to conclusively show 
E that the 991h Constitution Amendment Act alters the basic 
structure of the Constitution in that it replaces a well thought-
out and fully- discussed method of appointment of judges with 
another wherein the constitutional role giving significant value 
to the opinion of the Chief Justice of India is substantively 
F diminished or perhaps eliminated and
substituted by the NJAC. 
The question is not whether the alternative model is good or 
not good but whether it is constitutionally valid or not. 
(c) Basis of judgment is removed 
G 
411. The third submission was that Article 124(2) of the 
H 
Constitution has been amended by the 991h Constitution 
Amendment Act and, therefore, the basis of the judgment 
delivered by this Court in the Second Judges case has been 
405 Paragraph 7
SUPREME COURT ADVOCATES-ON-RECORD 
861 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
completely taken away or that the Constitution has been 
A 
amended with the result that that judgment cannot now be used 
to interpret Article 124(2) of the Constitution as it is today. In 
other words, the challenge to the 991h Constitution Amendment 
Act will have to be adjudicated independently and regardless 
of the law laid down in the Second Judges case or the Third B 
Judges case. 
412. In Shri Prithvi Cotton Mills Ltd. v. Broach 
Borough Municipality4°6 it was said by Chief Justice 
Hidayatullah that granted legislative competence, it is not c 
sufficient to declare merely that the decision of the Court shall 
not bind for that is tantamount to reversing the decision in 
exercise of judicial power which the Legislature does not 
possess or exercise. A Court's decision must always bind 
unless the conditions on which it is based are so fundamentally D 
altered that the decision could not have been given in the 
altered circumstances.· u was said: 
"Granted legislative competence, it is not sufficient to 
declare merely that the decision of the Court shall not 
bind for that is tantamount to reversing the decision in 
E 
exercise of judicial power which the Legislature does not 
possess or exercise. A court's decision must always bind 
unless the conditions on which it is b~sed are so 
fundamentally altered that the decision could not have F 
been given in the altered circumstances.
Ordinarily, a 
court holds a tax to be invalidly imposed because the 
power to tax is wanting or the statute or the rules or both 
are invalid or do not sufficiently create the jurisdiction. 
Validation of a tax so declared illegal may be done only G . 
if the grounds of illegality or invalidity are capable of being 
removed and are in fact removed and the tax thus made 
legal. Sometimes this is done by providing for jurisdiction 
406 (1969) 2 SCC 283 (Five Judges Bench) 
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where jurisdiction had not been properly invested before. 
Sometimes this is done by re-enacting retrospectively a 
valid and legal taxing provision and then by fiction making 
the tax already collected to stand under the re-enacted 
law. Sometimes the Legislature gives its own meaning 
and interpretation of the law under which tax was collected 
and by legislative fiat makes the new meaning binding 
upon courts. The Legislature may follow any one method 
or all of them and while it does so it may neutralise the 
effect of the earlier decision of the court which becomes 
ineffective after the change of the law. Whichever method 
is adopted it must be within the competence of the 
legislature and legal and adequate to attain the object of 
validation."407 
413. Similarly, in Indira Nehru Gandhi it was held by 
Chief Justice Ray as follows: 
"The effect of validation is to change the law so as to 
alter the basis of any judgment, which might have been 
given on the basis of old law and thus make the judgment 
ineffective. A formal declaration that the judgment 
rendered under the old Act is void, is not necessary. If 
the matter is pending in appeal, the appellate court has 
to give effect to the altered law and reverse the judgment. 
The rendering of a judgment ineffective by changing its 
basis by legislative enactment is not an encroachment 
on judicial power but a legislation within the competence 
of the
Legislature rendering the basis of the judgment 
non est." 
414. In K. Sankaran Nair v. Devaki Amma Malathy 
Amma408 it was observe9 as follows: 
"It is now well settled that the legislature cannot overrule 
4°' Paragraph 4 
408 (1996) 11 sec 428 
H
SUPREME COURT ADVOCATES~ON-RECORD 
863 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
any judicial decision without removing the substratum or A 
the foundation of that judgment by a retrospective 
amendment of the legal provision concerned." 409 
It was further stated, relying upon Shri Prithvi Cotton 
Mills Ltd. as follows: 
B 
"It is now well settled by a catena of decisions of this 
Court that unless the legislature by enacting a competent 
legislative provision retrospectively removes the 
substratum or foundation of any judgment of a competent 
court the said judgment would remain binding and C 
operative and in the absence of such a legislative 
exercise by a competent legislature the attempt to upset 
the binding effect of such judgments rendered against 
the parties would remain an incompetent and forbidden 
exercise which could be dubbed as an abortive attempt D 
to legislatively overrule binding decisions of courts." 410 
415. Similarly, in Bhubaneshwar Singh v. Union of 
lndia411 reliance was placed on Shri Prithvi Cotton Mills Ltd. 
and a host of other decisions rendered by this Court and a 
E 
similar conclusion arrived at in the following words: 
"From time to time controversy has arisen as to whether 
the effect of judicial pronouncements of the High Court 
or the Supreme Court can be wiped out by amending 
the legislation with retrospective effect. Many such 
F 
Amending Acts are called Validating Acts, validating the 
action taken under the particular
enactments by removing 
the defect in the statute retrospectively because of which 
the statute or the part of it had been declared ultra vi res. G 
Such exercise has been held by this Court as not to 
amount to encroachment on the judicial power of the 
• 09 Paragraph 5 
410 Paragraph 5 
411 (1994) 6 sec 77 
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courts. The exercise of rendering ineffective the 
judgments or orders of competent courts by changing 
the very basis by legislation is a well-known device of 
validating legislation. This Court has repeatedly pointed 
out that such validating legislation which removes the 
cause of the invalidity cannot be considered to be an 
encroachment on judicial power. At the same time, any 
action in exercise of the power under any enactment 
which has been declared to be invalid by a court cannot 
be made valid by a Validating Act by merely saying so 
unless the defect which has been pointed out by the court 
is removed with retrospective effect. The validating 
legislation must remove the cause of invalidity. Till such 
defect or the lack of authority pointed out by the court 
under a statute is removed by the subsequent enactment 
with retrospective effect, the binding nature of the 
judgment of the court cannot be ignored."412 
416. In Re Cauvery Water Disputes Tribuna/4 13 it was 
pithily stated, on a review of several decisions of this Court 
E that: 
F 
G 
'The principle which emerges from these authorities is 
that the legislature can change the basis on which a 
decision is given by the Court and thus change the law in 
general, which will affect a class of persons and events 
at large. It cannot, however, set aside an individual 
decision inter parles and affect their rights and liabilities 
alone. Such an act on
the part of the legislature amounts 
to exercising the judicial power of the State and to 
functioning as an appellate court or tribunal."414 
417. More recently, in State of Tamil Nadu this Court 
approved the following conclusion arrived at in Indian 
412 Paragraph 11 
"' (1993) Supp (1) sec 96 
H 
415 Paragraph 76
SUPREME COURT ADVOCATES-ON-RECORD 
865 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Aluminium Co. v. State of Kera/a415: 
A 
"In exercising legislative power, the legislature by mere 
declaration, without anything more, cannot directly 
overrule, revise or override a judicial decision. It can 
render judicial decision ineffective by enacting valid law 8 
on the topic within its legislative field fundamentally 
altering or changing its character retrospectively. The 
changed or altered conditions are such that the previous 
decision would not have been rendered by the court, if 
those conditions had existed at the time of declaring the c 
law as invalid. It is also empowered to give effect to 
retrospective legislation with a deeming date or with effect 
from a particular date. The legislature can change the 
character of the tax or duty from impermissible to 
permissible tax but the tax or levy should answer such 
D 
character and the legislature is competent to recover the 
invalid tax validating such .a tax on removing the invalid 
base for recovery from the subject or render the recovery 
from the State ineffectual. It is competent for the legislature 
to enact the law with retrospective effect and authorise 
E 
its agencies to levy and collect the tax on that basis, make 
the imposition of levy collected and recovery of the tax 
made valid, notwithstanding the declaration by the court 
or the direction given for recovery thereof."416 
418. Without commenting on the view
canvassed by the 
learned Attorn~y-General that the 99th Constitution Amendment 
Act has actually removed the basis of the judgment delivered 
F 
by this Court in the Second Judges case the constitutional 
validity of the said amendment will nevertheless need to be G 
tested on that assumption, keeping in mind the above 
decisions. 
· 
• 15 (1996) 1 sec 637 
416 Paragraph 111 
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A 
(d) Wisdom of an amendment to the Constitution 
419. The next submission of the learned Attorney-General 
was that the wisdom of Parliament in enacting the 99 1h 
Constitution Amendment Act cannot be disputed. Hence, this 
8 
Court ought not to substitute its own views on the necessity or 
otherwise of the 991h Constitution Amendment Act over the law 
laid down in the Second Judges case. 
c 
D 
420. In Lochner v. New York4 17 Justice Oliver Wendell 
Holmes famously stated (in dissent) almost a century ago: 
"This case is decided upon an economic theory which a 
large part of the country does not entertain. If it were a 
question whether I agreed with that theory, I should desire 
to study it further and long before. making up my mind. 
But I do not conceive that to be my duty, because I strongly 
believe that my agreement or disagreement has nothing 
to do with the right of a majority to embody their opinions 
in law." 
In other words, one may or may not agree with the content 
E or wisdom of a legislation, but that has nothing to do with the 
correctness or otherwise of the majority decision taken by a 
Legislature. This view has been followed in our country as well. 
421. The Courts in our country do not question the wisdom 
F 
or expediency of the Legislature enacting a statute, let alone a 
constitutional amendment. 
422. In one of the earliest cases relating to the wisdom 
of Parliament in enacting a law, it was contended
in A.K. 
Gopalan v. The State of Madras418 that the Preventive 
G Detention Act, 1950 was unconstitutional. Justice Das 
expressed the view that: 
"The point to be noted, however, is that in so far as there 
417 198 us 45 
H 
418 [1950] 1 SCR 88 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
867 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
.. 
is any limitation on the legislative power, the Court must, 
A 
on a complaint being made to it, scrutinise and ascertain 
whether such limitation has been transgressed and if 
there has been any transgression the Court will 
courageously declare the law unconstitutional, for the 
Court is bound by its oath to uphold the Constitution. But B 
outside the limitations imposed on the legislative powers 
our Parliament and the State Legislatures are supreme 
in their respective legislative fields and the Court has no 
authority to question the wisdom or policy of the law duly 
made by the appropriate legislature." 
C 
423. The Payment of Bonus Act, 1965 and the scheme 
for payment of minimum bonus were under challenge in Ja/an 
Trading Company (P) Ltd v. Mill Mazdoor Sabha Union.419 
Speaking for the Court, Justice J.C. Shah observed that the D 
wisdom of the scheme selected by the Legislatu!e may be 
open to debate but it would not be invalid merely because 
some fault can be found with the scheme. It was said: 
"Whether the scheme for payment of minimum bonus is 
the best in the circumstances, or a more equitable method 
E 
could have been devised so as to avoid in certain cases 
undue hardship is irrelevant to the enquiry in hand. If the 
classification is not patently arbitrary, the Court will not 
rule it discriminatory merely because it involves hardship F 
or inequality of burden. With
a view to secure a particular 
object a scheme may be selected by the Legislature, 
wisdom whereof may be open to debate; it may even be 
demonstrated that the scheme is not the best in the 
circumstances and the choice of the legislature may be 
G 
shown to be erroneous, but unless the enactment fails to 
satisfy the dual test of intelligible classification and 
rationality of the relation with the object of the law, it will 
419 [1967] 1 SCR 15 (Five Judges Bench) 
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A 
not be subject to judicial interference under Article 14. 
Invalidity of legislation is not established by merely finding 
faults with the scheme adopted by the Legislature to 
achieve the purpose it has in view. 
8 
424. In Kesavananda Bharati it was observed by Chief 
Justice Sikri that: 'It is of course for Parliament to decide 
whether an amendment [to the Constitution] is n.ecessary. The 
Courts will not be concerned with the wisdom of the 
amendment.'420 The learned Chief Justice further observed: 
c 'If Parliament has power to pass the impugned amendment 
acts, there is no doubt that I have no right to question the 
wisdom of the policy of Parliament.'421 
D 
425. Similarly, Justice Shelat and Justice Grover held: 
"It is not for the courts to enter into the wisdom or policy 
of a particular provision in a Constitution or a statute. 
Thatis for the Constitution-makers or for the Parliament 
or the legislature."422 
426. Justice A.N. Ray expressed his view in the following 
E words: 'Courts are not concerned with the wisdom or policy of 
legislation. The Courts are equally not concerned with the 
wisdom and policy of amendments to the Constitution.'423 
427. Justice Jaganmohan Reddy expressed the same 
F ·sentiments when the learned judge said: 
G 
"The citizen whose rights are affected, no doubt, invokes 
the aid of the judicial power to vindicate them, but in 
discharging its duty, the Courts have nothing to do with
the wisdom or the policy of the Legislature."424 
428. On the question of the wisdom of a constitutional 
420 Paragraph 288 
421 Paragraph 317 
422 Paragraph 532 
423 Paragraph 909 
H 
424 Paragraph 1106
SUPREME COURT ADVOCATES-ON-RECORD 
869 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
amendment which ostensibly improves an existing situation, A 
Justice Khanna expressed the view that this was not justiciable. 
The Court cannot substitute its opinion for that of Parliament 
in this regard. It was held: 
"Whether the amendment is in fact, an improvement or 8 
not, in my opinion, is not a justiciable matter, and in 
judging the validity of an amendment the courts would 
not go into the question as to whether the amendment 
has in effect brought about an improvement. It is for the 
special majority in each House of Parliament to decide c 
as to whether it constitutes an improvement; the courts 
would not be substituting their own opinion for that of the 
Parliament in this respect. Whatever may be the personal 
view of a judge regarding the wisdom behind or the 
improving quality of an amendment, he would be only D 
concerned with the legality of the amendment and this, 
in its tum, would depend upon the question as to whether 
the formalities prescribed in Article 368 have been 
complied with."425 
429. With reference to the Lochner dissent, Justice 
E 
Khanna noted that the view was subsequently accepted by 
the US Supreme Court in Ferguson v. Skrupa426 in the 
following words: 
"In the face of our abandonment of the use of the 'vague F 
contours' of the Due Process clause to nullify laws which 
a majority of the Court believed to be economically 
unwise, reliance on Adams
v. Tanner427 is as mistaken 
as would be adherence to Adkins v. Children's HosP.itaf26 
overruled by West Coast Hotel Co. v. Parrish429 • • • • • • • • • 
G 
425 Paragraph 1436. This view was reiterated in paragraph 1534. 
426 372 us 726 
427 244 U.S. 590 (1917) 
426 261 U.S. 525 (1923) 
429 300 U.S. 379 (1937) 
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We refuse to sit as a 'super legislature to weigh the 
wisdom of legislation', and we emphatically refuse to go 
back to the time when courts used the Due Process 
clause 'to strike down State laws, regulatory of business 
and industrial conditions, because they may be unwise, 
improvident, or out of harmony with a particular school of 
thought'. "430 
· 
430. Justice Kbanna reiterated his views in Indira Nehru 
Gandhi wherein the learned judge held: 
"Before dealing with the question as to whether the 
impugned amendment affects the basic structure of the 
Constitution, I may make it clear that this Court is not 
concerned with the wisdom behind or the propriety of 
the impugned constitutional amendment. These are 
matters essentially for those who are vested with the 
authority to make the constitutional amendment. All that 
this Court is concerned with is the constitutional validity 
of the impugned amendment."431 
431. Justice Chandrachud also expressed the same 
view, that is to say: 
"The subject-matter of constitutional amendments is a 
question of high policy and courts are concerned with 
the interpretation of laws, not with the wisdom of the policy 
underlying them."432 
432. A similar view was expressed in Karnataka Bank 
Ltd. v. State of Andhra Pradesh433 wherein it was specifically 
observed by this Court that: 
G 
"In pronouncing on the constitutional validity of a statute, 
the court is not
concerned with the wisdom or unwisdom, 
430 Paragraph 1442 
431 Paragraph 176 
432 Paragraph 661 
H 
433 (2008) 2 sec 254
SUPREME COURT ADVOCATES-ON-RECORD 
871 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the justice or injustice of the law. If that which is passed A 
into law is within the scope of the power conferred on a 
legislature and violates no restrictions on that power, the 
law must be upheld whatever a court may think of it."434 
433. In view of the judicial pronouncements, there is 
8 
absolutely no difficulty in accepting this proposition canvassed 
by the learned Attorney-General. The constitutional validity of 
the 991h Constitution Amendment Act has to be tested on its 
own merit. The question of any Court substituting its opinion 
for that of the Legislature simply cannot and does not arise. A c 
judge may have a view one way or the other on the collegium 
system of appointment of judges and on the manner of its 
implementation- but that opinion cannot colour the application 
and interpretation of the law or the reasoning that a judge is 
expected to adopt in coming to a conclusion whether the 
D 
substitute introduced by the ggth Constitution Amendment Act 
is constitutionally valid or not. Similarly, a judge may have an 
opinion about the National Judicial Appointments Commission 
- but again that view cannot replace a judicial interpretation of 
the 99th Constitution Amendment Act or the NJAC Act. 
E 
434. The collegium system of appointment of judges 
has undoubtedly been the subject of criticism. In fact, Mr. Fali 
Nariman who led the submissions on behalf of the
Advocates 
on Record Association was quite critical of the collegium 
F 
system of appointments. Some of the learn~d counsel for the 
respondents went overboard in their criticism. But personal 
opinions do not matter. Lord Templeman of the House of Lords 
was of the view that the collegium system of appointments is 
best suited to ensure the independence of the judiciary- but G 
there are other eminent persons who are critical of the Second 
Judges case. 
435. In the final analysis, therefore, the Courts must defer 
434 Paragraph 19 
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[2015] 13 S.C.R. 
A 
to the wisdom of the Legislature and accept their views, as 
long as they are within the parameters of the law, nothing more 
and nothing less. The constitutional validity of the ggth 
Constitution Amendment Act cannot be tested on opinions, 
B 
however strong they may be or however vividly expressed. 
(e) Needs of the people 
436. It was also submitted by the learned Attorney-
General that Parliament is aware of the needs of the people 
and the people want a change from the collegium system of 
C appointment of judges. Parliament has responded to this 
demand and this Court should not reject this demand only 
because it believes that the collegium system is working well 
and that the ggth Constitution Amendment Act introduces a 
different system which reduces the role of the judiciary in 
D making appointments by taking away its primacy in this regard. 
437. Apart from the presumption that an enactment is 
constitutionally valid, there is also a presumption that the 
Legislature understands and correctly appreciates the needs 
E of the people. This was observed in Charanjit Lal Chowdhuri 
and reliance was placed on the following passage from 
Middleton v. Texas Power and Light Co. 435: 
F 
"It must be presumed that a legislature understands and 
correctly appreciates the need of its own people, that its 
laws are directed to problems made manifest by 
experience and that its discriminations are based upon 
adequate grounds."
438. Similarly, in Ram Krishna Dalmia the presumption 
G that the Legislature understands and correctly appreciates the 
needs of the people was reiterated. 
439. Finally in Mohd. Hanif Quareshi v. State of 
Bihar436 this view was endorsed by Chief Justice S.R. Das 
435 249 US 152, 157 paragraph 11 
H 
436 [1959] SCR 629 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD. 
873 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
speaking for this Court (though it may be mentioned that this 
A 
decision was subsequently overruled qn another issue) in the 
following words: 
"The courts, it is accepted, must presume that the 
legislature understands and correctly appreciates the 
8 
needs of its own people, that its laws are directed to 
problems made manifest by experience and that its 
discriminations are based on adequate grounds." 
440. It was observed (on an issue relating to the 
constitutionality of the death penalty) in Makwanyane437 as C 
follows: 
"Public opinion may have some relevance to the enquiry, 
but in itself, it is no substitute for the duty vested in the 
Courts to interpret t~e Constitution and to uphold its 
D 
provisions without fear or favour. If public opinion were 
to be decisive there would be no need for constitutional 
adjudication. The protection of rights could then be left 
to Parliament, which has a mandate from the public, and 
is answerable to the public for the way its mandate is 
E 
exercised, but this would be a return to parliamentary 
sovereignty, and a retreat from the new legal order 
established by the 1993 Constitution ...... . 
This Court cannot allow itself to be diverted from its duty 
to act as an independent arbiter of the Constitution by 
F 
making choices on the basis that they will find favour with 
the public. Justice Powell's comment in his dissent in 
· Furman v
Georgia bears repetition: 
... the weight of the evidence indicates that the public G 
generally has not accepted either the morality or the 
social merit of the views so passionately advocated 
by the articulate spokesmen for abolition. But however 
437 Per Chaskalon, J paragraphs 88 and 89 
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[2015] 13 S.C.R. 
A 
one may assess amorphous ebb and flow of public 
opinion generally on this volatile issue, this type of 
inquiry lies at the periphery- not the core - of the judicial 
process in constitutional cases. The assessment of 
popular opinion is essentially a legislative, and not a 
B 
judicial, function.438 
So too does the comment of Justice Jackson in West 
Virginia State Board of Education v Barnette: 
The very purpose of a Bill of Rights was to withdraw 
C 
certain subjects from the vicissitudes of political 
controversy, to place them beyond the reach of 
majorities and officials and to establish them as legal 
principles to be applied by the courts. One's right to 
life, liberty, and property, to free speech, a free press, 
D 
freedom of worship and assembly and other 
fundamental rights may not be submitted to vote; they 
depend on the outcome of no elections.439 
To put it differently: 'The legitimacy of the Judicial Branch 
E ultimately depends on its reputation for impartiality and 
nonpartisanship.'440 Public opinion, manifested through 
Parliament or otherwise, really pales into insignificance over 
the law that is interpreted impartially and in a non-partisan · 
manner. 
F 
441. It must be appreciated that the debate cannot be 
reduced to the acceptance of an unconstitutional but popular 
decision versus a constitutional but unpopular decision. All of 
us are bound by the Constitution and judges have to
abide by 
the oath of office to uphold the Constitution and the laws, even 
G if the decision is unpopular or unacceptable to Parliament. This 
is the essence of judicial review otherwise no law passed by 
Parliament (obviously having a popular mandate) could be 
4" 408 U.S. 238, 290 (1972) 
439 319 U.S. 624, 638 (1943) 
H 
440 Mistretta v. United States, 488 U.S. 361, 407 (1989)
SUPREME COURT ADVOCATES-ON-RECORD 
875 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
struck down as unconstitutional. 
A 
(f) Passage of time 
442. Finally, it was submitted by the learned Attorney-
General that the passage of time over the last over sixty years 
has shown that the system of appointment of judges that was 
B 
originally operational (in which the executive has the 'ultimate 
power') and the collegium system (in which the judiciary had 
shared responsibility) had both yielded some negative results. 
It was submitted that millions of cases are pending, persons 
who should have been appointed as judges were not C 
recommended for appointment and persons who did not 
deserve to be judges were not only appointed but were brought 
to this Court. The 991h Constitution Amendment Act seeks to 
correct the imbalances created over a period of time and since 
constitutional experiments are permissible, the 99 1h D 
Constitution Amendment Act should be allowed to pass muster. 
443. There is no doubt that with the passage of time 
changes take place in society and in the development of the 
law. In fact, the only constant is change. In State of West E 
Bengal v. Anwar Ali Sarkar441 it was acknowledged by 
Justice Mehr Chand Mahajan that good faith and knowledge 
of existing conditions on the part of the Legislature has to be 
presumed. Appreciating this, it was later observed in Ram 
Krishna Dalmia that: 
F 
"In order to sustain the presumption of constitutionality 
the
court may take into consideration matters of common 
knowledge, matters of common report, the history of the 
times and may assume every state of facts which can be 
conceived existing at the time of legislation." 
G 
444. In Kesavananda Bharati Justice Hegde and 
Justice Mukherjea observed that: 'The society grows, its 
441 [1952] SCR 284 (Seven Judges Bench) 
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A 
requirements change. The Constitution and the laws may have 
to be changed to suit those needs. No single generation can 
bind the course of the generation to come.' 442 
445. Justice Khanna expressed the view (and this was 
8 
relied on by the learned Attorney-General) that the Constitution 
is also intended for the future and must contain ample provision 
for experiment and trial. This is what Justice Khanna said: 
"It has also to be borne in mind that a Constitution is not 
a gate but a road. Beneath the drafting of a Constitution 
C 
is the awareness that things do not stand still but move 
on, that life of a progressive nation, as of an individual, is 
not static and stagnant but dynamic and dashful. A 
Constitution must therefore contain ample provision for 
experiment and trial in the task of administration. A 
D 
Constitution, it needs to be emphasised, is not a 
document for fastidious dialectics but the means of 
ordering the life of a people. It had its roots in the past, 
its continuity is reflected in the present and it is intended 
E 
F 
G 
H 
forthe unknown future.''443 
446. A little later on in the judgment, the learned judge 
cited Abrams v. United States444 and quoting Justice Holmes 
said: 
"The Constitution of a nation is the outward and visible 
manifestation of the life of the people and it must respond 
to the deep pulsation for change within. "A Constitution 
is an experiment as all life is an
experiment." If the 
experiment fails, there must be provision for making 
another.''445 
447. fortunately for the people of the country, the 
442 Paragraph 634 
443 Paragraph 1437 
444 250 us 616 (1919) 
445 Paragraph 1563
SUPREME COURT ADVOCATES-ON-RECORD 
877 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
independence of the judiciary is not a 'task of administration' A 
nor is the Constitution of India a failed experiment nor is there 
any need for 'making provision for another'. If the basic 
structure of the Constitution is to be changed, through 
experimentation or otherwise, then its overthrow is necessary. 
It is not a simple document thatcan be experimented with or B 
changed through a cut and paste method. Even though the 
independence of the judiciary is a basic structure of the 
Constitution and being a pillar of democracy it can be 
experimented with, but only if it is possible without altering the 
basic structure. The independence of the judiciary is a concept C 
developed over centuries to benefit the people against arbitrary 
exercise of power. If during experimentation, the independence 
of the judiciary is lost, it is gone forever and cannot be regained 
by simply concluding that the loss of independence is a failed 
D 
experiment. The independence of the judiciary is not physical 
but metaphysical. The independence of the judiciary is not 
like plasticine that it can be moulded any which way. 
448. This is not to say that the Constitution must recognize 
only physical changes with the passage of time - certainly not. 
E 
New thoughts and ideas are generated with the passage of 
time and a line of thinking that was acceptable a few decades 
ago may not be acceptable today and
what is acceptable today 
may not be acceptable a decade hence. But basic concepts 
like democracy, secularism, Rule of Law, independence of the 
F 
judiciary, all of which are constituents of the basic structure of 
our Constitution are immutable as concepts, though nuances 
may change. A failed experiment of these basic concepts would 
lead to disastrous consequences. It is not possible as an 
experiment to try out a monarchy or a dictatorship or to convert G 
India into a religious State for about ten or fifteen years and 
see how the experiment works. Nor is it possible to suspend 
the Rule of Law or take away the independence of the judiciary 
for about ten or fifteen years and see how the experiment works. H
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[2015] 13 S.C.R. 
A These concepts are far too precious for experimentation. 
449. Yes, the Constitution has to be interpreted as a living 
organic document for years and years to come, but within 
accepted parameters. It was said by Chief Justice Dickson of 
B the Canadian Supreme Court in The Queen v. Beauregarcf46: 
"The Canadian Constitution is not locked forever in a 119 
year old casket. It lives and breathes and is capable of 
growing to keep pace with the growth of the country and its 
people. Accordingly, if the Constitution can accommodate, 
C 
as it has, many subjects unknown in 1867 airplanes, nuclear 
energy, hydroelectric power it is-surely not straining section 
100 too much to say that the word 'pensions', admittedly 
understood in one sense in 1867, can today support federal 
legislation based on a different understanding of 
D 
'pensions'."447 
E 
450. It is this that Justice Khanna possibly had in mind 
when the learned judge spoke of the 'unknown future'. 
Challenge to a statute and the package deal 
451. The learned Attorney-General also adverted to the 
legal bases for challenging a statute. This was necessary since 
he desired to segregate the challenge to the 991h Constitution 
AmendmentAct and the NJACAct. In principle, the segregation 
F would be justified, but as far as this case is concerned, the 
learned Attorney-General had argued that the 99th Constitution 
Amendment Act and the NJAC Act were a 'package deal' and 
in
this he is correct. Both were discussed and debated in both 
Houses of Parliament almost at the same time, both were sent 
G to the President for assent at the same time and were in fact 
assented to at the same time and finally both were notified at 
the same time. The only difference was that while the 991h 
Constitution Amendment Act had to undergo the ratification 
446 [1986] 2 SCR 56 paragraph 
H 
447 Paragraph 46
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
process, the NJAC Act did not. It was therefore a 'package A 
deal' presented to the country in which the ggth Constitution 
Amendment Act and the NJAC Act were so interlinked that 
one could not operate without reference to the other. In fact, 
Mr. Nariman submitted that the NJAC Act should also have 
undergone the ratification process, but he was unable to 
B 
support his argument with any law, judicial precedent, 
convention or practice. This question is left open for greater 
discussion at an appropriate stage should the occasion arise. 
452. Be that as it may, in the context of a challenge to a c 
statute, it was submitted by the learned Attorney-General that 
the principles for such a challenge are quite different from a 
challenge to a constitutional amendment. He is right in this 
submission. 
453. The accepted view is that a Parliamentary statute D 
can be struck down only if it is beyond legislative competence 
or violatesArt.13 or the fundamental rights. The basic structure 
doctrine is not available for striking down a statute. It was held 
in State of A.P. v. McDowell & Co448 that: 
"The power of Parliament or for that matter, the State 
Legislatures is restricted in two ways. A law made by 
Parliament or the legislature can be struck down by courts 
E 
on two grounds and two grounds alone, viz., (1) lack of 
legislative competence and (2) violation of any of the 
F 
fundamental
rights guaranteed in Part Ill of the 
Constitution or of any other constitutional provision. There 
is no third ground." 
454. This view was followed in Public Services Tribunal 
Bar Assn v. State of U.P. 449 in the following words: 
G 
"The constitutional validity of an Act can be challenged 
only on two grounds viz. (1) lack of legislative competence; 
448 (1996) 3 sec 709 paragraph 43 
449 (2003) 4 sec 104 paragraph 26 
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A 
and (ii) violation of any of the fundamental rights 
guaranteed in Part 111 of the Constitution or of any other 
constitutional provisions. In State of A.P v. McDowell & 
Co this Court has opined that except the above two 
grounds there is no third ground on the basis of which 
B 
the law made by the competent legislature can be 
invalidated and that the ground of invalidation must 
necessarily fall within the four corners of the 
aforementioned two grounds." 
c 
455. Earlier, this Court had taken a much broader view 
of the issue of a challenge to a statute in Chhotabhai 
Jethabhai Patel v. Union of lndia.450 It was held therein that 
apart from the question of legislative competence and violation 
of Article 13 of the Constitution, a i;tatute could be challenged 
o if its enactment was prohibited by a provision of the 
E 
F 
G 
Constitution. It was held as follows: 
"If by reason of Article 265 every tax has to be imposed 
by "law" it would appear to follow that it could only be 
imposed by a law which is valid by conformity to the 
criteria laid down in the relevant Articles of the 
Constitution. These are that the law should be ( 1) within 
the legislative competence of the legislature being 
covered by the legislative entries in Schedule VII of the 
Constitution; (2) the law should not be prohibited by any 
particular provision of the Constitution such as for 
example, Articles 276(2), 286 etc., and (3) the law or the
relevant portion thereof should not be invalid under Article 
13 for repugnancy to those freedom which are 
guaranteed by Part Ill of the Constitution which are 
relevant to the subject-matter of the law." 
456. This view was taken forward in Kihoto Hol/ohan 
v. Zachillhu451 wherein it was held that the procedure for 
450 1962 Supp (2) SCR 1 =AIR 1962 SC 104 (Five Judges Bench) 
H 
451 1992 Supp (2) sec 651 paragraph 61 and 62 (Five Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
881 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
enacting a 'law' should be followed. Although it is not expressly A 
stated, but it appears that if the procedure is not followed then 
the 'law' to that extent will have no effect. In this case, It was 
held that Paragraph 7 of the Tenth Schedule to the Constitution 
needed ratification in terms of clause (b) of the proviso to Article 
368(2) of the Constitution. It was held: 
B 
"That having regard to the background and evolution of 
the principles underlying the Constitution (Fifty-second 
Amendment) Act, 1985-, insofar as it seeks to introduce 
the Tenth Schedule in theConstitution of India, the c 
provisions of Paragraph 7 of the Tenth Schedule of the 
Constitution in terms and in effect bring about a change 
in the operation and effect of Articles 136, 226 and 227 
of the Constitution of India and, therefore, the amendment 
would require to be ratified in accordance with the proviso D 
to sub-article (2) of Article 368 of the Constitution of India.'' 
457. Strictly speaking, therefore, an amendment to the 
Constitution can be challenged only if it alters the basic structure 
of the Constitution and a law can be challenged if: (1) It is 
beyond the competence of the Legislature; (2) It violates Article 
E 
13 of the Constitution; (3) It is enacted contrary to a prohibition 
in the Constitution; and (4) It is enacted without following the 
procedure laid down in the Constitution. 
458. At
the same time, it has been emphasized by this 
F 
Court that the possibility of abuse of a provision of a statute is 
not a ground for striking it down. An abuse of power can always 
be checked through judicial review of the action complained 
of. In D.K. Trivedi & Sons v. State of Gujarat452 it was said: 
"Where a statute confers discretionary powers upon the G 
executive or an administrative authority, the validity or 
constitutionality of such power cannot be judged on the' 
assumption that the executive or such authority will act in 
452 1986 Supp SCC 20 in paragraph 50 
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A 
an arbitrary manner in the exercise of the discretion 
conferred upon it. If the executive or the administrative 
authority acts in an arbitrary manner, its action would be 
bad in law and liable to be struck down by the courts but 
the possibility of abuse of power or arbitrary exercise of 
B 
power cannot invalidate the statute conferring the power 
or the power which has been conferred by it." 
459. Similarly, Justice B.P. Jeevan Reddy (speaking for 
Justice J.S. Verma, Justice S.C .• Agrawal, Justice A.S.Anand, 
c Justice B.N. Kirpal and himself) held in Mafatlal Industries 
D 
E 
F 
G 
Ltd. v. Union of Jndia453 : 
"It is equally well-settled that mere possibility of abuse of 
a provision by those in charge of administering it cannot 
be a ground for holding the provision procedurally or 
substantively unreasonable. In Col/ectorofCustomsv. 
Nathe/la Sampathu Chetty, this Court observed: "The 
possibility of abuse of a statute otherwise valid does not 
·impart to it any element of invalidity." It was said in State 
of Rajasthan v. Union of India, "it must be remembered 
that merely because power may sometimes be abused, 
it is no ground for denying the existence of power. The 
wisdom of man has not yet been able to conceive of a 
government with power sufficient to answer all its 
legitimate needs and at the same time incapable of 
mischief'. (Also see Commr., H.R.E. v. Sri Lakshmindra 
Thirtha Swamiar of Sri Shirur Mutt."
(Internal citations 
omitted) 
Article 122 of the Constitution 
460. Before dealing with the substantive issue of the 
challenge before us, it may be mentioned that Mr. Fali S. 
Nariman contended that Parliament did not have the 
competence to pass the NJAC Act until the ggth Constitution 
H 
•53 (1997) 5 sec 536 in paragraph 88
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Amendment Act was brought into force or at least it had the 
A 
assent of the President. It is not possible to accept this 
submission since the passage of the 991h Constitution 
Amendment Act and the NJACActwas contemporaneous, if 
not more or less simultaneous. In view of Article 122(1) of the 
Constitution which provides that the validity of any proceedings B 
in Parliament shall not be called in question on the ground of 
any alleged irregularity of procedure, it is not possible to delve 
into the proceedings in Parliament. 
461. In Babula/ Parate v. State ofBombay454 this Court c 
added, byway of a post-script, its view on Article 122(1)ofthe 
Constitution. It was observed that in a given hypothetical 
situation the question will not be the validity of proceedings in 
Parliament but the violation of a constitutional provision. It was 
said as follows: 
D 
"It is advisable, perhaps, to add a few more words about 
Art. 122(1) of the Constitution. Learned counsel forthe 
appellant has posed before us the question as to what 
would be the effect of that Article if in any Bill completely 
unrelated to any of the matters referred to in Cls. (a) to 
E 
(e) of Art. 3 an amendment was to be proposed and 
accepted changing (for example) the name of a State. 
We do not think that we need answer such a hypothetical 
question except merely to say that if an amendment is of F 
such a character that it
is not really an amendment and 
is clearly violative of Art. 3, the question then will be not 
the validity of proceedings in Parliament but the violation 
of a constitutional provision." 
462. In Raja Ram Pal v. Lok Sabha455 the question of G 
the extent of judicial review of parliamentary matters came up 
for consideration. Speaking for Justices K.G. Balakrishnan, 
454 [1960 (1) SCR 605 (Five Judges Bench) 
455 (2007) 3 SCC 184 (Five Judges Bench) 
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A 
D.K. Jain and himself, it was held by Chief Justice Sabharwal, 
with reference to the CAD that procedural irregularities in 
Parliament cannot undo or vitiate what happens within its four 
walls, that is, internal parliamentary proceedings. However, 
proceedings that are substantively illegal or unconstitutional, 
B as opposed to irregular are not protected from judicial scrutiny 
by Article 122(1) of the Constitution.456 
463. Insofar as the NJACAct is concerned, nothing has 
been shown by way of any substantive illegality in its passage 
c or anything unconstitutional in its passage in· the sense that 
any provision of the Constitution or any substantive rule 
regulating parliamentary activity has been violated. At best, it 
can be argued that procedurally there was a violation but our 
attention was drawn to the rules of procedure and the decision 
o taken in accordance with the rules which indicate that there 
was no procedural violation in the introduction of the NJAC 
Act and its passage. Justice Khehar has elaborately dealt with 
this issue in substantial detail in his draft judgment and it is not 
E 
necessary to repeat what has been said. 
The amendments that are challenged - discussion 
464. Though no one has a right to be appointed a judge 
either of the Supreme Court or a High Court, it does not mean 
that the President can decline to appoint a person as a judge 
F without any rhyme or reason nor does it mean that
the President 
can appoint any eligible person as a judge. Under the 
Government of India Act, 1919 and the Government of India 
Act, 1935 the Crown had the unfettered discretion to do both 
or either. The Constituent Assembly did not give this unfettered 
G power to the President and, therefore, mandated consultation 
between the President and the Chief Justice of India for the 
appointment of a judge of the Supreme Court. There were 
reasons for this as mentioned above. Prior to the ggth 
456 Paragraphs 360 (Two), 366 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Constitution Amendment Act, under Article 124(2) of the A 
Constitution, the President had the discretion to consult some 
other judges of the Supreme Court or the High Courts, as the 
President thought necessary for the purpose. The same 
constitutional position prevailed (mutatis mutandis) so far as 
the appointment of a judge of a High Court under Article 217(1) B 
of the Constitution was concerned. Article 124(2) of the 
Constitution had three basic ingredients: The power of the 
President to appoint a judge of the Supreme Court; a 
mandatory requirement of consultation with the Chief Justice 
of India; a discretionary consultation with otherjudges of the C 
Supreme Court and the High Courts. 
465. The ggth Constitution Amendment Act has 
completely changed this constitutional position and has . 
changed the role of the President in the appointment process D 
as also substantially modified the mandatory consultation with 
the Chief Justice of India and substituted or replaced the entire 
process by a recommendation of the NJAC. The table below 
gives the textual changes made in Article 124(2) of the 
Constitution. 
E 
Pre-Amendment 
Post-Amendment 
provisions 
provisions 
124. Establishment 
124. Establishment 
and constitution of 
and constitution of 
Supreme Court. - (1) 
Supreme Court. - (1) 
F 
There shall be a 
There shall be a 
Supreme Court of 
Supreme Court of 
India consisting of
a 
India consisting of a 
Chief Justice of India 
Chief Justice of India 
and, until Parliament 
and, until Parliament 
by law prescribes a 
by law prescribes a 
G 
larger number, of not 
larger number, of not 
more than seven other more than seven other 
Judges. 
Judges. 
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B 
c 
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(2) Every Judge of the (2) Every Judge of the 
Supreme Court shall be Supreme Court shall be 
appointed 
by 
the appointed 
by 
the 
President 
by 
warrant President 
by 
warrant 
under his hand and seal unaer his hand and seal 
after consultation with on the recommendation 
such of the Judges of of the National Judicial 
the Supreme Court and Appointments 
of the High Courts in Commission referred to 
the 
States 
as 
the in article 124A and shall 
President may deem hold office until he attains 
necessary 
for 
the the 
age 
of 
sixty-five 
purpose and shall hold years: 
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: 
Provided further that-
(a) a Judge may, by 
writing under his hand 
addressed 
to 
the 
President, 
resign 
his 
office; 
(b) a Judge may be 
removed from his office 
in the manner provided 
in clause (4). 
omitted 
Provided 
that-
Judge may, by 
under 
his 
addressed 
to 
(a) 
a 
writing 
hand 
the 
President, 
resign 
his 
office; 
(b) a Judge may. be 
removed from his office in 
the manner provided in 
clause (4). 
466. The composition of the NJAC is provided for in
SUPREME COURT ADVOCATES-ON-RECORD 
887 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Article 124A of the Constitution. Therefore, Article 124A of the A 
Constitution and Article 124(2) are required to be read in 
conjunction with each other. The Chief Justice of India is the 
Chairperson of the NJAC. The members of the NJAC are two 
other judges of the Supreme Court next to the Chief Justice of 
India, the Union Minister in charge of Law and Justice and two 
B 
eminent persons to be nominated by a Committee consisting 
of the Prime Minister, the Chief Justice of India and the Leader 
of Opposition in the Lok Sabha, failing which the leader of the 
single largest Opposition Party in the Lok Sabha. 
c 
467. The duty of the NJAC as provided for in Article 1248 
of the Constitution is to recommend persons for appointment 
as the Chief Justice of India, judges of the Supreme Court, 
Chief Justices of High Courts and other judges of High Courts 
and to recommend the transfer of Chief Justices and other D 
judges of a High Court from one High Court to any other High 
Court. The NJAC has the duty to ensure that the person 
recommended has ability and integrity. 
468. Article 124C of the Constitution provides that 
Parliament may by law regulate the procedure for the 
E 
appointment of the Chief Justice of India and other judges of 
the Supreme Court, the Chief Justice and other judges of the 
High Courts. The Article empowers the NJAC to lay down, by 
regulations, the procedure for
the discharge of its functions, 
F 
the manner of selection of persons for appointment and such 
other matters as may be considered necessary. 
469. Simultaneous' with the above amendments in the 
Constitution, the NJAC Act was passed by Parliament. The 
NJAC Act provides for recommending the senior-most judge G 
of the Supreme Court as the Chief Justice of India 'if he is 
considered fit to hold the office' and for recommending names 
for appointment as a judge of the Supreme Court persons who 
are eligible to be so appointed. Interestingly, the NJAC 'shall 
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not recommend a person for appointment if any two members 
of the Commission do not agree for such recommendation' 
(Section 5 of the NJAC Act). A somewhat similar procedure 
has been provided for recommending the appointment of the 
Chief Justice of a High Court and a judge of a High Court 
B (Section 6 of the NJAC Act). 
470. The President may accept the recommendation of 
the NJAC for the appointment of a particular person as a judge, 
but may also require the NJAC to reconsider its 
c recommendation. 
If the NJAC affirms its earlier 
recommendation the President shall issue the warrant of 
appointment (Section 7 of the NJAC Act). 
471. The officers and employees of the NJAC shall be 
appointed by the Central Government in consultation with the 
D NJAC and the convener of the NJAC shall be the Secretary to 
the Government of India in the Department of Law and Justice 
(Section 8 of the NJACAct). 
472. The procedure for the transfer of judges from one 
E High Court to another has been left to be determined by 
regulations to be framed by the NJAC (Section 9 of the Act). 
Similarly, the NJAC shall frame regulations with regard to the 
procedure for the discharge of its functions (Section 10 of the 
Act). 
F 
473. The Central Government is empowered to make 
Rules to carry out the provisions of the NJAC Act (Section 11 
thereof) and the Commission may make Rules to carry out the 
provisions of the NJAC Act (Section· 12
thereof). The Rules 
and Regulations framed by the Central Government and by 
G the NJAC shall be laid before Parliament and these may be 
modified if both the Houses of Parliament agree to the 
modification and Parliament may also provide that a Rule or 
Regulation shall have no effect (Section 13 thereof). 
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SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v.·u.O.I. [MADAN B. LOKUR, J.] 
4 7 4. The sum and substance of the controversy is this: If A 
the establishment of the NJAC by the 99 1h Constitution 
Amendment Act alters the basic structure of the Constitution, 
the 991h Constitution Amendment Act and the NJAC Act must 
be declared unconstitutional. Since the establishment of the 
NJAC by Article 124A of the Constitution is integral to the 991h 
B 
Constitution Amendment Act and the NJACAct and they are 
not severable and cannot stand alone, they too must be 
declared unconstitutional. 
475. While considering the constitutional validity of the c 
991h Constitution Amendment Act and the NJAC Act it is 
necessary to deal with a submission made with reference to 
the Constitutional Reform Act 2005 (CRA) passed by the British 
Parliament. This is because it was referred, in the course of 
submissions, on more than one occasion. It was sought to be 
D 
suggested that judges in the UK Supreme Court are appointed 
by the Judicial Appointments Commission constituted in terms 
of the CRA and there is nothing wrong if a somewhat similar 
procedure is adopted by our Parliament where judges of the 
High Courts and the Supreme Court are recommended by the 
E 
NJAC. 
476. The CRA and its working was adverted to by Jack 
Straw; the Lord Chancellor from 2007 to 2010. At that time the 
Lord Chief Justice was the head of the judiciary in the UK but 
F 
the Lord Chancellor was nevertheless
responsible 'for upholding 
the independence of the judiciary'. In the 3rd lecture on 'Judicial 
Appointments' delivered on 41h December, 2012 of the 641h 
series of Hamlyn Lectures titled 'Aspects of Law Reform -An 
Insider's Perspective' he said: 
G 
"The CRA provided for the establishment of an 
independent Judicial Appointments Commission (JAC). 
The JAC was made responsible for operating the 
appointments process and making recommendations to H
890 
A 
B 
c 
D 
E 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
the Lord Chancellor for all but the most senior 
appointments. For these very senior appointments (to 
the Court of Appeal, and the offices of Head of Division, 
Lord Chief Justice, and the president, deputy president 
and members of the UK Supreme court), separate 
provision was made for recommendations to be made 
to the Lord Chancellor by specially constituted selection 
panels. 
For each appointment, the JAC, or the specially 
constituted selection panel, was required to make one 
recommendation to the Lord Chancellor."457 
"In practice, as I found out through painful experience, 
there were a number of problems with this set-up."458 
"I accept that the role of the Lord Chancellor in relation to 
High Court and Court of Appeal appointments shoLJld be 
limited. But for the two groups of our most senior judges, 
and for different reasons, in my view the Lord Chancellor 
should have a greater role than is provided for by the 
Constitutional Reform Act, or than is likely to be provided 
for by the current Crime and Courts Bill. 
The two groups of judges I am talking about are, first, the 
most senior members of the Court of Appeal - th'at is, 
the Heads of Division and Lord Chief Justice- and, 
second, the members of the UK Supreme Court. The 
conclusion is the same, but the arguments are 
different. "459 
The 'specially constituted selection panel' for the 
G appointment of judges of the UK Supreme Court (for
example) 
is provided for in Section 26(5) of the CRA read with Schedule 
8 thereof and the selection panel consists of (a) the President 
457 Page 54 
458 Page 55 
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459 Page 56
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891 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
of the Supreme Court, (b) the Deputy President of the Supreme A 
Court, (c) one member each of (i) the Judicial Appointments 
Commission, (ii) the Judicial Appointments Board for Scotland, 
(iii) the Northern Ireland Judicial Appointments Commission. 
At least one member in category (c) must be 'non-legally 
qualified'. With this sort of a composition of the 'specially B 
constituted selection panel' Jack Straw could not go against 
the wishes of the judiciary in respect of one appointment, as 
obliquely referred to by him below: 
"All of this is already recognized, in principle at least, by c 
the Constitutional Reform Act, which provides that these 
two groups of very senior appointments should not be 
made by the normal Judicial Appointments Commission 
process. 
The reality of a connection between the senior judiciary D 
and the executive is also recognized in almost every other 
jurisdiction. By far the most usual approach elsewhere 
in the world, including in well-functioning common-law 
jurisdictions, is for the relevant minister to be 
recommended three to five names, and for that minister E 
then to be able to choose from among these nominees. 
In the United Kingdom we are very unusual in insisting 
that the minister receives one name alone. This is 
explicable only in the context of where we have come 
from: the untrammeled discretion of the Lord Chancellor F 
until the mid 1990s,
the non-statutory nature of the pre-
2005 arrangements, the opaque decision-making 
process and the mounting criticism of it. 
But these literally peculiar arrangements for these very G 
senior appointments, intended to create a partnership 
approach between the judiciary and the Lord Chancellor 
in recognition of the requirements of the offices in 
question, have proved to be unsatisfactory. 
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Both the detailed wording and the expectation in practice 
make it very difficult for the Lord Chancellor to exercise 
even his limited powers to reject or request a 
reconsideration of a recommendation. As is a matter of 
record in the press, there was one occasion when, as 
B 
Lord Chancellor, I sought to use these powers. 
c 
D 
E 
Since I have always observed the confidentiality 
necessary for the consideration of such appointments, I 
am not here going into any detail. I hope, however, that it 
will be accepted that I would not have sought to exercise 
these powers unless I believed that I had good grounds 
within the Act for doing so I did - good grounds, as many 
can now see. I went to considerable lengths to ensure 
that my actions could not be construed, which they were 
not remotely, as party political. In the event, the matter 
was not seen through to a conclusion. Partisans to the 
appointment- not anyone directly involved in the process 
- leaked extensive detail to the press, an election was 
looming; I confirmed the appointment."460 
4 77. Adverting to this lecture and the actual working of 
the CRA, it is said that for making senior level judicial 
appointments, it is 'impossible for the Lord Chancellor to 
against the wishes of the judiciary'. In a recent article published 
F in Public Law it is said: 
"Judicial appointments are the next biggest change, 
responsibility for which has shifted from the executive
in 
the form of the Lord Chancellor, to the judiciary. Formally 
the process is managed by the independent Judicial 
G 
Appointments Commission (JAC), but in practice the 
process is heavily influenced by the judiciary at every 
stage. The Lord Chief Justice is consulted at the start of 
each competition. Judges prepare case studies and 
460 Page 57-59 
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893 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
qualifying tests. Judges write references. A judge sits on 
A 
the panels that interview candidates; and judges are 
consulted in statutory consultation. On the JAC, 7 of the 
15 commissioners are judges. Once the JAC has 
completed its selection, at lower levels (Circuit judges 
and below) all judicial appointments are now formally 
B 
made by the Lord Chief Justice, and tribunal 
appointments are made by the Senior President of 
Tribunals. The Lord Chief Justice and SPT are now 
responsible for 97 per cent of all judicial appointments. c 
At more senior levels appointments are still formally 
decided by the Lord Chancellor; but in practice it has 
proved impossible for the Lord Chancellor to go against 
the wishes of the judiciary."461 
So much for the appointment process in the UK and the 
D 
'judges appointing judges' criticism in India! 
4 78. It is not possible for any one of us to comment (one 
way or another) on the CRA except to say that it is not advisable 
to rely on values of judicial independence and conventions and 
'-
systems of the appointment of judges in other countries without E 
a full understanding of their problems and issues. We ought to 
better understand the situation in our country (and the decisions 
rendered by this Court) and how best to protect and preserve 
judicial independence in the circumstances that exist in our F 
country and not have grand illusions of
the systems in place in 
other countries. 
Validity of Articles 124A and 124(2) of the 
Constitution - the package deal 
479. The submission of the learned Attorney-General (as G 
mentioned above) is that the 991h Constitution Amendment Act 
461 Public Law (2015): Judicial Independence and Accountability in the UK 
have both emerged stronger as a result of the Constitutional Reform Act 
2005 by Robert Hazell 
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[2015] 13 S.C.R. 
A and the NJAC Act are a 'package deal' and one cannot be 
appreciated without the other. The discussion will be in the 
light of this submission. 
480. At the outset, it is important to note thatthe package 
B is incomplete. The 991h Constitution Amendment Act and the 
NJAC Act raise a series of unanswered questions. For 
example, how is the NJAC expected to perform its duties? 
Will there be any transparency in the working of the NJAC and 
if so to what extent? Will privacy concerns of the 'candidates' 
c be taken care of? Will issues of accountability of the NJAC be 
addressed? The learned Attorney-General submitted that a 
large number of hypothetical issues and questions have been 
raised not only by the petitioners but also by the Bench and it 
is not possible to answer all of them in the absence of a 
o composite law and regulations being framed in accordance 
with the postulates of the 991h Constitution Amendment Act. 
This submission of the learned Attorney-General cannot be 
appreciated particularly in view of his contention, raised on 
more than one occasion, that what is enacted by the ggth 
E 
Constitution Amendment Act is a package deal. Unless all 
eventualities are taken care of, the package deal presented 
to the country is an empty package with the wrapping paper in 
the form of the NJAC Act and a ribbon in the form of the ggth 
Constitution Amendment Act. If it is not possible to answer all 
F the questions in
the absence of a composite law, rules and 
regulations, what was the hurry in bringing the ggth Constitution 
Amendment Act and the NJAC Act into force as a half-baked 
measure? 
G 
481. It is true that the Constitution cannot specify and 
incorporate each and every detail, particularly procedural 
details.462 But the same time, the substantive requirements of 
the NJAC scheme must be apparent from the 991h Constitution 
462 See State of Punjab v. Salil Sablok, (2013) 5 SCC 1 paragraph 115 of the 
H 
Report.
SUPREME COURT ADVOCATES-ON-RECORD 
895 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Amendment Act read with the NJAC Act, particularly when it A 
seeks to overthrow an existing method of appointment of 
judges that maintains the independence of the judiciary. Vital 
issues cannot be left to be sorted out at a later date through 
supplementary legislation or supplementary subordinate 
· legislation, otherwise an unwholesome hiatus would be 
B 
created, making matters worse. 
482. The package deal must survive as whole or fall as 
a whole - there cannot be piecemeal existence. 
483. Viewed in this light, the constitutional validity of C 
Article 124(2) read with Article 124A of the Constitution as 
introduced by the ggth Constitution Amendment Act is suspect 
for several reasons. 
(a) The NJAC and the role of the President 
D 
484.Article 124(2) of the Constitution requires the NJAC 
constituted under Article 124A thereof to make a 
recommendation to the President for the appointment of a 
judge of the Supreme Court or a High Court. Mr. Fali S. 
Nariman pointed out that as far as the NJAC is concerned, it E 
is not clear whether the President means the President acting 
in his/her individual capacity or the Council of Ministers. The 
President certainly cannot mean the individual otherwise the 
procedure for appointment of judges postulated by the ggth 
Constitution Amendment Act and the NJAC Act would be 
F 
creating an lmperium in lmperio whfch the Constituent 
Assembly
deliberately avoided. On the other hand, if the 
President means the Council of Ministers, then on what basis 
can the Council of Ministers/President ask the NJAC (under G 
the proviso to Section 7 of the NJAC Act) to reconsider its 
view? The Council of Ministers/President is already 
represented as a 'voting member' in the NJAC through the 
Law Minister. Can the PresidenUCouncil of Ministers/Prime 
Minister ask for reconsideration of a recommendation made 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
by the NJAC to which the Law Minister (a member of the 
Cabinet) is a party? Would this be permissible particularly since 
the Law Minister represents the Union Government/President 
in the NJAC and would it not go against the well established 
principle of Cabinet responsibility? Alternatively, would it not 
B 
undermine the authority of the Law Minister if in a given case 
the Law Ministers agrees to an appointment but the Council of 
Ministers does not accept it? More importantly, is the Council 
of Ministers/President an oversight body as far as the NJAC 
c 
is concerned? 
485. Assuming (despite the above doubts) that the 
Council of Ministers/President requires the NJAC to reconsider 
its recommendation and on reconsideration the NJAC 
reiterates its recommendation, the President will be bound 
o thereby even if it means overruling the objections of the Chief 
Justice of India. The objection to this process of appointment 
of judges is two-fold. Firstly, the authority that is statutorily 
conferred on the NJAC to bind the President by the NJAC Act 
is well beyond the power conferred by Article 124(2) of the 
E Constitution or the 991h Constitution Amendment Act. Secondly, 
in the event of such a reiteration, the opinion of the Chief 
Justice of India eventually counts for nothing, contrary to the 
intention of the Constituent Asse!T]bly and the constitutional 
conventions followed over decades. Historically, no 
F
appointment (except perhaps one) has been made without the 
consent of the ChiefJustice of India. Is the 991h Constitution 
AmendmentAct intended, wittingly or unwittingly, to give a short 
shrift to the views of the Constituent Assembly and constitutional 
conventions and to sublimate the views of the Chief Justice of 
G India? This procedure may be contrasted with the collegium 
system of appointment in which the President could turn down 
a recommendation made by the collegium if it was not 
unanimous. In the present dispensation, this entitlement of the 
H President is taken away, even if the recommendation is not
SUPREME COURT ADVOCATES-ON-RECORD 
897 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
unanimous, and thereby the importance of the President is A 
considerably downsized. 
486. Additionally, the decision of the President is, in one 
sense, made to depend upon the opinion of two members of 
the NJAC, who may in a given case be the two eminent persons 
8 
nominated to the NJAC in terms of Article 124A(1 )(d) of the 
Constitution. These two eminent persons can actually stymie 
a recommendation of the NJAC for the appointment of a judge 
by exercising a veto conferred on each member of the NJAC 
by the second proviso to sub-section (2) of Section 5 of the c 
NJAC Act, and without assigning any reason. In other words, 
the two eminent persons (or any two members of the NJAC) 
can stall the appointment of judges without reason. That this 
may not necessarily happen with any great frequency is not 
relevant- that such a situation can occur is disturbing. As a 
D 
result of this provision, the responsibility of making an 
appointment of a judge effectively passes over, in part, from 
the President and the Chief Justice of India to the members of 
the NJAC, with a veto being conferred on any two unspecified 
members, without any·specific justification. This is a very E . 
significant constitutional change brought about by the ggth 
Constitution Amendment Act which not only impinges upon but 
radically alters the process of appointment of judges, by shifting 
the balance from the
President and the Chief Justice of India 
to the NJAC. To make matters worse, the President cannot F 
even seek the views of anybody (other judges or lawyers or 
civil society) which was permissible prior to the ggth 
Constitution Amendment Act and a part of Article 124(2) of the 
Constitution prior to its amendment. It may be recalled that 
Article 124(2) of the Constitution enables the President to G 
consult judges of the Supreme Court and the High Court but 
that entitlement is now taken away by the 991h Constitution 
Amendment Act. The President, in the process, is actually 
reduced to a dummy. 
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487. It may also be recalled that the President (as an 
individual) had expressed a viewpoint as reported in India 
Today magazine of 251h January, 1999 concerning the 
appointment of judges of the Supreme Court. The existence 
of such a possibility is now not possible since the President 
B (as an individual) has really no role to play in the appointment 
process except issuing a warrant of appointment when asked 
to do so. 
488. The sum and substance of this discussion is that 
c there is no clarity on the role of the President. In any event, the 
discretion available to the President to consult judges of the 
Supreme Court in the matter of appointment of judges is taken 
away; the decision of the President is subject to the opinion of 
two eminent persons neither of whom is constitutionally 
o accountable; there is a doubt on the well established principle 
of Cabinet responsibility; a statute - the NJAC Act, not the 
Constitution binds the President contrary to the constitutional 
framework; the 991h Constitution Amendment Act makes 
serious and unconstitutional inroads into Article 124(2) of the 
E Constitution, as originally framed. 
· 
(b) Role of the Chief Justice of India and the 
Judiciary 
489. The Chief Justice of India is undoubtedly the 
F Chairperson of the NJAC. However, the participation of the 
Chief Justice of India as an individual and the participation of 
the judiciary as an institution in the NJAC is
made farcical by 
the 991h Constitution Amendment Act and the NJAC Act. Even 
though the opinion of the Chief Justice of India, a pre-eminent 
G constitutional authority in the judiciary, regarding the suitability 
of a person for appointment as a judge is acceptable to a 
majority of members of the NJAC, it can be thumbed down by 
two of its other members in terms of Section 5 of the NJAC . 
Act. These two persons might be the Law Minister 
H
SUPREME COURT ADVOCATES-ON-RECORD 
. 899 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
(representing the President) and an eminent person or two 
A 
eminent persons neither of whom represent or purport to 
represent the President, the other pre-eminent constitutional 
authority in the appointment process under Article 124(2) of 
.the Constitution prior to its amendment. 
490. The 99th Constitution Amendment Act reduces the 
B 
Chief Justice of India, despite being the head of the ju9iciary, 
to one of six in the NJAC making a recommendation to the 
President thereby denuding him/her of conventional, historical 
and legitimate constitutional significance and authority and c 
substantially skewing the appointment process postulated by 
the ConstituentAssembly and the Constitution. The opinion of 
the Chief Justice of India had 'graded weight' or the 'greatest 
weight' prior to the 99th Constitution Amendment Act. But now 
with the passage of the 991h Constitution Amendment Act and 
D 
the NJAC Act the Chief Justice of India is reduced to a mere 
voting statistic. Designating the Chief Justice of India as the 
Chairperson of the NJAC is certainly not a solace or a solution 
to downsizing the head of the Judiciary. 
491. The participation of the judiciary as an institution in 
E 
the NJAC is also farcical. The 991h Constitution Amendment 
Act does not postulate a 'veto' being conferred on any person 
in the NJAC. But the NJAC Act effectively gives that power to 
all members of
the NJAC despite the 99th Constitution 
F 
Amendment Act. This is evident from the provisions of the 
NJAC Act which enable two persons, one of them being the 
Law Minister to veto the unanimous opinion of the three 
participating judges (including the Chief Justice of India). 
Therefore, even if the Judiciary as a whole and as an institution G 
(that is the three participating judges) is in favour of a particular 
appointment, that unanimous opinion can be rendered 
worthless by any two other members of the NJAC, one of whom 
may very well include the Law Minister representing the political 
H