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
590 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
emerges from the various articles of the Constitution 
which provide for the establishment of the legislative 
bodies70 (Parliament and the State Legislatures) and the 
Articles which prescribe a periodic election to these 
bodies71 based on adult franchise72; the role assigned 
B 
to these bodies, that is, to make laws for the governance 
of this Country in their respective spheres73; and the 
establishment of an independent machinery74 for 
conducting the periodic elections etc.; 
c 
· (b) the concept of secularism emanates from various 
articles contained in the fundamental rights chapter like 
Articles 15 and 16 which prohibits the State from 
practicing any kind of discrimination on the ground of 
religion and Articles 25 to 30 which guarantee certain 
o 
fundamental rights regarding the freedom of religion to 
every person and the specific mention of such rights with 
reference to minorities. 
84. The abrogation of a basic feature may ensue as a 
consequence of the amendment of a single Article in the cluster 
E of Articles constituting the basic feature as it happened in 
Minerva Mills case and Indira Nehru Gandhi case. 
85. On the other hand, such a result may not ensue in 
the context of some basic features. For example, Article 326 
F prescribes that election to Lok Sabha and the Legislative 
Assemblies shall be on the basis of adult suffrage. Adult 
suffrage is explained in the said Article as: 
G 
H 
" ... that is
to say, every person who is a citizen of 
India and who is not less than eighteen years of 
10 Articles 79-84 and 168-173 
71 Articles 83 and 172 
12 Article 326 
73 Articles 245 and 246 etc. 
74 Article 324
SUPREME COURT ADVOCATES-ON-RECORD 
. 591 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
age on such date as may be fixed in that behalf by 
A 
or under any law made by the appropriate 
Legislature and is not otherwise disqualified under 
this Constitution or any law made by the appropriate 
Legislature on the ground of non-residence: 
unsoundness of mind, crime or corrupt or illegal 
B 
practice, shall be entitled to be registered as a voter 
at a("ly such election." 
One of the components is that the prescription of the 
minimum age limit of 18 years. Undoubtedly, the right created c 
under Article 326 in favour of citizens of India to participate in 
the election process of the Lok Sabha and the Legislative 
Assemblies is an integral part (for the sake of convenience, I 
call it an ELEMENT) of the basic feature i.e. democracy. 
However, for some valid reasons, if the Parliament were to 
D 
amend Article 326 fixing a higher .minimum age limit, it is 
doubtful whether such an amendment would be abrogative of 
the ba.sic feature of democracy thereby resulting in the 
destruction of the basic structure of the Constitution. It is 
worthwhile remembering that the minimum age of 18 years 
E 
occurring under Article 326 as on today came up by way of the 
Constitution (Sixty-first Amendment) Act, 1988. Prior to the· 
amendment, the minimum age limit was 21 years. 
86. As held by this Court in Minerva Mills case, the 
F 
amendment of a single article may result in the destruction of 
the
basic structure of the Constitution depending upon the 
nature of the basic feature and the context of the abrogation of 
that article if the purpose sought to be achieved by the Article 
constitutes the quintessential to the basic structure of the 
G 
Constitution. 
87. In my opinion, these cases also are really of no help 
for determining the case on hand as they do not lay down any 
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A 
general principle by which it can be determined as to when · 
can a constitutional amendment be said to destroy the basic 
structure of the Constitution. In the case on hand, the identity 
of the basic feature is not in dispute. The question is wh.ether 
the AMENDMENT is abrogative of the independence of 
B judiciary-(a basic feature) resulting in the destruction of the 
basic structure of the Constitution. 
88. By the very nature of the basic feature with which we 
are dealing, it does not confer any fundamental or constitutional 
c right in favour of individuals. It is only a means for securing to 
the people of India, justice, liberty and equality. It creates a 
collective right in favour of the polity to have a judiciary which 
is free from the control of the Executive or the Legislature in its 
essential function of decision making. 
D 
89. The challenge to the AMENDMENT is required to be 
examined in the light of the preceding discussion. 
The 
petitioners argued that (i) Independence of the judiciary is a 
basic feature (COMPONENT) of the basic structure of the 
Constitution; (ii) the process of appointment of members of 
E 
constitutional courts is an essential ingredient (ELEMENT) of 
such COMPONENT; (iii) the process prescribed under 
unamended Articles 124 and 217, as interpreted by this Court 
in the Second and Third Judges cases, is a basic feature and 
F was so designed by framers of the Constitution for ensuring
independence of the judiciary, by providing for primacy of the 
opinion of the CJI (Collegium); and not of the opinion of the 
President (the Executive); (iv) the AMENDMENT dilutes such 
primacy and tilts the balance in favour of the Executive, thereby 
G abrogating a basic feature, leading to destruction of the basic 
structure. 
H 
90. The prime target of attack by the petitioners is Section 
2(a) of the AMENDMENT by which the institutional mechanism 
for appointment of judges of constitutional courts is replaced.
SUPREME COURT ADVOCATES-ON-RECORD 
593 .· 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
According to the petitioners, the AMENDMENT is a brazen A 
attempt by the Executive branch to grab the power of 
appointing Judges to CONSTITUTIONAL COURTS. Such 
shift of power into the hands of Executive would enable packing 
of the CONSTITUTIONAL COURTS with persons who are likely 
to be less independent. 
B 
91. It is further argued that the principles laid down in the 
Second and Third Judges cases are not based purely on the 
interpretation of the text of the Constitution as it stood prior to 
the impugned AMENDMENT but also on the basis of a c 
fundamental Constitutional principle that an independent 
judiciary is one of the basic features of the Constitution. The 
procedure for appointment of the Judges of the 
CONSTITUTIONAL COURTS is an important element in the 
establishment and nurturing of an independent judiciary. Such D 
conclusion not only flows from the text of the Articles 124 and 
217 as they stood prior to the impugned AMENDMENT but 
flow from a necessary implication emanating from the scheme 
of the Constitution as evidenced by Articles 32, 50, 112(3)(d), 
113(1), 203(1), 125(2), 221(2)etc. 
E 
92. Mr. Nariman, learned Senior Counsel appearing for 
one of the petitioners emphatically submitted that he is not 
against change of the mechanism provided under Articles 124 
and 217. He submitted that this aspect of the matter fell for 
F 
consideration of Justice M.N.
Venkatachaliah Commission75, 
which also recommended creation of a National Judicial 
Appointments Commission but with a slightly different 
composition76• If really Parliament wanted to change in the 
75 The National Commission to Review the Working of the Constitution G 
(NCRWC), 2002 chaired by Justice M.N. Venkatachaliah 
76 7.3.7 '"The matter relating to manner of appointment of judges had been 
debated over a decade. The Constitution (Sixty-seventh Amendment) Bill, 
1990 was introduced on 18'" May, 1990 (9'" Lok Sabha) providing for the 
institutional frame work of National Judicial Commission for recommending 
the appointment of judges to the Supreme Court and the various High 
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mechanism for the selection of the members of the superior 
judiciary, the model recommended by the Justice M.N. 
Venkatachaliah Commission could well have been adopted. 
According to Mr. Nariman the model identified by 
Venkatachaliah Commission is more suitable for preservation 
of independence of the judiciary than the model adopted in 
the AMENDMENT. Mr. Nariman further argued that no reasons 
are given by the Union of India explaining why 
recommendations of the Justice M.N. Venkatachaliah 
Commission were not accepted. 
93. On the other hand, it is submitted by the learned 
Attorney General and other senior counsel appearing for 
various respondents; 
Courts. Further, it appears that latterly there is a movement throughout the 
world to move this function away from the exclusive fiat of the executive and 
involving some institutional frame work whereunder consultation with the 
judiciary at some level is provided for before making such appointments. The 
system of consultation in some form is already available in Japan, Israel and 
the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for 
a collegium of the Chief Justice of India and two other judges of the Supreme 
Court for making appointment to the Supreme Court. However, it would be 
worthwhile to have a participatory mode with the participation of both the 
executive and the judiciary in making such recommendations. The
Commission proposes the composition of the Collegium which gives due 
importance to and provides for the effective participation of both the executive 
and the judicial wings of the State as an integrated scheme for the machinery 
for appointment of judges. This Commission, accordingly, recommends the 
establishment of a National Judicial Commission under the Constitution. 
The National Judicial Commission for appointment of judges of the 
Supreme Court shall comprise of: 
1. The Chief Justice of India 
2. Two senior most judges of the Supreme Court: 
3 The Union Minister for Law and Justice: 
4 One eminent person nominated by the 
President after consulting the CJI 
Chairman 
Member 
Member 
Member 
The recommendation for the establishment of a National Judicial 
Commission and its composition are to be treated as integral in view of the 
need to preserve the independence of the judiciary." ·
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ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
(i) Parliament's power to amend the Constitution is A 
plenary subject only to the limitation that it cannot abrogate 
the basic structure of the Constitution. 
The 
AMENDMENT in no way abrogates the basic structure 
of the Constitution. 
B 
(ii) Independence of judiciary is not the only objective 
envisaged by the Constitution, it also envisages an 
efficient judiciary. To achieve such twin objects, 
Parliament in its wisdom thought that the selection 
process of the members of the CONSTITUTIONAL c 
COURTS as it existed prior to the AMENDMENT 
required modification. The wisdom of Parliament is not 
amenable to the scrutiny of this Court, even in the context 
of ordinary legislation. Logically, a constitutional 
amendment therefore should enjoy a greater degree of D 
immunity. 
In other words, where the goal sought to be achieved by 
Parliament is constitutionally legitimate, the legislation 
by which such a goal is sought to be achieved can be 
questioned only on limited grounds. They are (i) lack of E 
legislative competence, (ii) the legislation violates any 
one of the f~ndamental rights enumerated in Part 111 of 
the Constitution, or is in contravention of some other 
express prohibition of the Constitution. Absent such 
F 
objectionable features, the possibility that the goal sought 
to be achieved by the legislation can be achieved through 
modes other than the one chosen by the
legislation can 
never be a ground for invalidating even an ordinary 
legislation as has been consistently held by this Court. 
G 
In the case of a constitutional amendment question of 
legislative competence in the above-mentioned sense 
and conflict with the other provisions of the Constitution 
are irrelevant and does not arise. 
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B 
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SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
(iii) Checks and balances of powers conferred by the 
Constitution on the three great branches of governance 
- Legislature, Executive and Judiciary is the most basic 
feature of all democratic constitutions. 
Absolute, 
independence of any one of the three branches is 
inconsistent with core democratic values and the scheme 
of our Constitution. 
This Court by an interpretative 
process of the Constitution as it stood prior to the 
AMENDMENT disturbed such balance. The 
AMENDMENT only seeks to restore such balance and 
therefore cannot be said to be destructive of the basic 
structure of the Constitution. 
(iv) That the law laid down by this Court in Second and 
Third Judges case is no more relevant in view of the fact 
D 
that the text of the Constitution which was the subject 
matter of interpretation in the said cases stands 
amended. In the light of well settled principles of 
interpretation of statutes the law laid down in those two 
cases is no more a good law. It is further argued that in 
E 
the event this Court comes to the conclusion that the law 
laid down in the abovementioned two judgments has 
some relevance for determining the constitutional validity 
of the AMENDMENT and also the correctness of the 
F 
G 
H 
principles laid down in those judgments requires 
reconsideration by a Bench of appropriate strength. 
According to the Attorney General and other learned 
counsel for respondents, the abovementioned
two 
judgments are contrary to the text of the Constitution as 
it stood then and in complete disregard of the 
constitutional history and background of the relevant 
provisions. It is further submitted that under the scheme 
of the Constitution, neither this Court nor High Courts are 
conferred unqualified autonomy though a large measure
SUPREME COURT ADVOCATES-ON-RECORD 
597 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
of autonomy is conferred under various provisions. For A 
example the salaries, privileges and allowances, pension 
etc. could still be regulated by law made by Parliament 
under Article 125 and 221, 137, 140, 145 etc. 
(v) It is submitted that independence of the judiciary is 
B 
indisputably a basic feature of the Constitution. An 
essential element of this basic feature is that the 
President (Executive) should not have an unfettered 
discretion in such appointment process but not that the 
opinion of the CJI (Collegium) should have primacy or c 
dominance. The judgments of this Court in the Second 
and Third Judges cases are not only counter textual but 
also plainly contrary to the intent of the Constituent 
Assembly and clearly beyond limits of judicial power, it 
is an e~ercise of constituent authority in the disguise of D 
interpretation. Under the AMENDMENT, the President 
has no discretion in the matter of appointment of Judges 
of CONSTITUTIONAL COURTS. He is bound by the 
recommendation of the NJAC wherein members of the 
judiciary constitute the single largest group. Parliament E 
exercising constituent power (under Article 368) 
considered it appropriate that representatives of the Civil 
Society should be accorded a participatory role in the 
process of appointments to CONSTITUTIONAL 
COURTS and that their presence would be a check on 
F 
potential and consequently ruinous 'trade
offs'; (i) 
between and amongst the three members representing 
the judiciary and (ii) between the judiciary and the 
executive; and would accentuate transparency to what 
had hitherto been an opaque process. Such wisdom of G 
the Parliament in not open to question. It is an 
established and venerated principle that the Court would 
not sit in judgment over the wisdom of Parliament even 
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in respect of an ordinary legislation; a constitutional 
amend~ent invites a greaterdegree of deference. 
(vi) Even under the scheme of the AMENDMENT, 
judiciary has a pre-dominant role. The apprehension that, 
under the new dispensation, Executive would have the 
opportunity of packing the CONSTITUTIONAL COURTS 
of this country with cronies is illogical and baseless. The 
presence of three senior most Judges of this Court in 
the. NJAC is a wholesome safeguard against such 
possibility. Any two of the three Judges can stall such 
an effort, if ever attempted by the Executive. 
(vii) The fact that a Commission headed by Justice 
M.N.Venkatachaliah made certain recommendations 
need not necessarily mean that the model suggested by 
the Commission is the only model for securing 
independence of the judiciary or the best model. At any 
rate, the choice of the appropriate model necessarily 
involves a value judgment. The model chosen by the 
Parliament in exercise of its constituent powers cannot 
be held to be unconstitutional only on the ground that in 
the opinion of some, there are better models or 
alternatives. Such a value judgment is exclusively in the 
realm of the Parliament's constituent powers. It is also 
argued that the mechanism for selection of members 
of the constitutional courts as expounded in the Second 
and the Third Judges cases, even according to Mr. 
Nariman's opinion is not the best.
Mr. Nariman is on 
record stating so in one of the books authored by him 
"Before Memory Fades :AnAutobiography"77• 
77 Fali S. Nariman, Before Memory Fades -An Autobiography, 
p. 389 - "If there is one important case decided by the Supreme Court of India 
in which I appeared and won, and which I have lived to regret, it is the decision 
that goes by the title - Supreme Cowt Advocates-on-Record Association vs 
Union of India. It is a decision of the year 1993 and is better known as the 
H 
Second Judges Case."
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599 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
94. Any appointment process established under the 
A 
Constitution must necessarily be conducive for establishment 
of not only an independent judiciary but also ensure its 
efficiency. Two qualities essential for preservation of liberty. 
"In order to lay a due foundation for that separate 
and distinct exercise of the different powers of 
government, which to a certain extent is admitted 
on all hands to be essential to the preservation 
of liberty, it is evident that each department 
should have a will of its own, and consequently 
should be so constituted that the members of 
each should have as little agency as possible 
in the appointment of the members of the 
others. Were this principle rigorously adhered to, 
it would require that all the appointments for 
the supreme executive, legislative, and judiciary 
magistracies should be drawn from the same 
fountain of authority, the people, through 
channels having no communication whatever with 
one another. Some difficulties, and some additional 
expense would attend the execution of it. Some 
deviations, therefore, from the principle must be 
admitted. In the constitution of the judiciary 
department in particular, it might be 
inexpedient to insfst rigorously on the 
principle: first, because peculiar qualifications 
being essential in the members, the pri.mary 
B 
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F 
p.400 -
"I don't see what is so special about the first five
judges of the 
Supreme Court. They are only the first five in seniority of appointment - not G 
necessarily in superiority of wisdom or competence. 
I see no reason why all 
the judges in the highest court should not be consulted when a proposal is 
made for appointment of a high court judge (or an eminent advocate) to be a 
judge of the Supreme Court. I would suggest that the closed-circuit network 
of five judges should be disbanded. They invariably hold their 'cards' close 
to their chest. They ask no one. They consult no one but themselves." 
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A 
consideration ought to be to select that mode 
of choice which best secures these 
qualifications."78 
[emphasis supplied] 
B 
Judges who could decide causes brought before them 
expeditiously and consistent with applicable principles of 
jurisprudence, generate confidence, in litigants and the polity 
that they indeed dispense justice. Whether the appointment 
process prior to the AMENDMENT yielded such appointments 
C has been deeply contentious. As submitted by the learned 
Attorney General, the history of appointments to 
CONSTITUTIONAL COURTS in our Republic could be divided 
into two phases - pre and post Second Judges case. No 
doubt during both phases, the appointment process yielded 
D mixed results, on the in<;lex of both independence and 
efficiency. Some outstanding and some not so outstanding 
persona came to be appointed in both phases. Allegations of 
seriously unworthy appointments abound but our system 
provides for no mechanism for audit or qualitative analysis. 
E Such systemic deficit has pathological consequences. 
95. Parliament representing the majoritarian will was 
satisfied that the existing process warrants change and acted 
in exercise of its constituent power and concomitant discretion. 
F Such constituent assessment of the need is clearly off limits to 
judicial review. Whether curative ushered in by the 
AMENDMENT transgresses the permissible limits of 
amendatory power is certainly amenable to
Judicial Review 
because of the law declared in Bharati case and followed 
G consistently thereafter. 
H 
96. The text and scheme of the AMENDMENT excludes 
discretion to the President in making appointments to 
78 See Federist No.51 - (Hamilton or Madison) (1788)
SUPREME COURT ADVOCATES-ON-RECORD 
601 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
CONSTITUTIONAL COURTS and the President is required 
A 
to accept recommendations by the NJAC. The amended 
Articles stipulate that judges of CONSTITUTIONAL COURTS 
shall be appointed by the President ....... on the 
recommendation of the NJAC. 
97. Prior to the AMENDMENT, there were only two B 
parties to the appointment process, the Executive and the 
Judiciary. The relative importance of their roles varied from 
time to time. The AMENDMENT makes three important 
changes - (i) primacy of judiciary is whittled down; (ii) role of c 
the executive is also curtailed; and (iii) representatives of civil 
society are made part of the mechanism. 
98. Primacy of the opinion of judiciary in the matter of 
judicial appointments is not the only means for the 
establishment of an independent and efficient judiciary. There D 
is abundance of opinion (in discerning and responsible 
quarters of the civil society in the legal fraternity, jurists, political 
theorists and scholars) that primacy to the opinion of judiciary 
is not a normative or constitutional fundamental for 
establishment of an independent and efficient judiciary. Such E 
an assumption has been proved to be of doubtful accuracy. It 
is Parliament's asserted assumption that induction of civil 
society represen.tation will bring about critically desirable 
transparency, commitment and participation of the ultimate F 
stakeholders - the people.
The fountain of all constitutional 
authority, to ensure appointment of the most suitable persons 
with due regard to legitimate aspirations of the several 
competing interests. Various democratic societies have and 
are experimenting with models involving association of civil G 
society representation in such selection process. Assessment 
of the product of such experiments are however inconclusive. 
The question is not whether the model conceived by the 
AMENDMENT would yield a more independent and efficient 
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[2015] 13 S.C.R. 
A judiciary. The question is whether Parliament's wisdom and 
authority to undertake such an experiment by resort to 
constituent power is subject to curial audit. 
99. As rightly pointed out by the Attorney General, the 
8 
basic feature of the Constitution is not primacy of the opinion 
of the CJI (Collegium) but lies in non investiture of absolute 
power in the President (Executive) to choose and appoint 
judges of CONSTITUTIONAL COURTS. That feature is not 
abrogated by the AMENDMENT. The Executive may at best 
c only make a proposal through its representative in the NJAC, 
i.e. the Law Minister. Such proposal, if considered unworthy,. 
can still be rejected by the other members of the NJAC. The 
worth of a candidate does oot depend upon who proposes 
the name nor the candidate's political association; if any, should 
o be a disqualification. 
E 
F 
G 
H 
" ......... , even party men can be fiercely 
independent after being appointed judges, as has 
been proved by some judges who were active in 
politics. Justice K.S. Hegde served as a member 
of Rajya Sabha from 1952 to 1957 and was 
elevated as a High Court judge directly from Rajya 
Sabha. Though he was a congress MP, he proved 
to be so independent that he was superseded in 
1973 in the appointment of the CJI by his own 
party's government. Justice Tekchand was also a 
member of Rajya Sabha before becoming a judge.· 
He was appointed when he was a sitting MP, but 
he
proved to be a fine judge whose report on 
prohibition is a landmark. Another prominent 
example is Justice V.R. Krishna Iyer who was made 
a judge of the Kerala High Court in 1968, though 
he had not only been an MLA but also a minister in
SUPREME COURT ADVOCATES-ON~RECORD 
603 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
the Namboodiripad government (1957-59) in 
· Kerala. In 1973, Justice S.M. Sikri, the CJI, was 
totally opposed to the elevation of Justice Iyer to 
the apex court on the ground that he had been a 
politician who held the office of a cabinet minister 
in Kerala. It was AN. Ray who cleared his elevation, 
and Justice Iyer proved to be a luminous example 
of what a judge ought to be. He was one of the 
finest judges who ever sat on the bench of the 
Supreme Court who tried to bridge the gap between 
the Supreme Court and the common people. There 
is also the example of Justice Bahrul Islam who 
served as a member of Raj ya Sabha for 10 years 
before being appointed a High Court judge. He 
was subsequently elevated to the Supreme Court. 
He absolved Jagannath Mishra, the Chief Minister 
of Bihar, in the urban cooperative bank scandal, 
and immediately thereafter resigned to contest the 
· Lok Sabha election as a Congress( I) candidate 
from Barpeta - he never enjoyed a clean reputation. 
So, it is not proper to make any generalization. 
People of impeccable rectitude have to be 
handpicked." 79 
A 
B 
c 
D 
E 
100. Critical analysis of Articles 124, 217 and 124-Aand 
124-B leads to the position that the Executive Branch of F 
Government cannot push through an 'undeserving candidate' 
so long as at least two members representing the Judicial 
Branch are united in their view as to unsuitability of
that 
candidate. Even one eminent person and a single judicial 
member of NJAC could effectively stall entry of an unworthy G 
79 Sudhanshu Ranjan, 'Justice, Judocracy and Democracy in India: 
Boundaries and Breaches', p.185-186 
H 
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A appointment. Similarly, the judicial members also cannot push 
through persons of their choice unless at least one other 
member belonging to the non-judicial block supports the 
candidate proposed by them. 
B 
101. A democratic form of government is perhaps the 
best institution invented for preservation of liberties. At least 
that is the belief of societies which adopt this model of 
governance. 
True, there are many variants of democracy. 
Analysis of the variants is outside the scope of this judgment. 
C Under any constitutional model, primary responsibility to 
preserve liberties of the people is entrusted to the legislative 
and executive branches. Such entrustment is predicated on 
the structural and empirical assumption that legislators chosen 
periodically would strive to protect the liberties of their "only 
D masters - the people". This is for two reasons operating in 
tandem. They are the obligation to discharge the trust reposed 
and the fear of losing the glory of being the chosen 
representative. An in built possibility in the system of periodic 
elections. 
E 
102. To assume or assert that judiciary alone is 
· concerned with the preservation of liberties and does that job 
well, is an assumption that is dogmatic, bereft of evidentiary 
basis and historically disproved. Eminent constitution jurist and . 
F teacher Laurence H. Tribe has the following to say in the context 
of the American experience. 
G 
H 
"No
one should assume that the Supreme Court 
need always strike down laws and executive actions 
in order to protect our liberties. On the contrary, 
sometimes the Court best guarantees our rights by 
deferring to, rather than overruling, the political 
branches. When the Supreme Court, from 1900 
to 1937, struck down dozens of child labor laws, 
..
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
minimum wage laws, working condition regulations, 
and laws protecting workers; rights to organize 
unions, on the ground that such rules infringed on 
property rights and violated "liberty of contract," the 
only rights the Court really vindicated were the rights 
to be overworked, underpaid, or unemployed. The 
Court eventually reversed itself on the~e issues 
when it recognized that, in twentieth-century 
America, such laws are not intrusions upon human 
freedom in any meaningful sense, but are instead 
entirely reasonable and just ways of combating 
economic subjugation. In upholding a minimum 
wage law in the watershed case of we·st Coast 
Hotel v. Parrish, the Supreme Court concluded in 
1937 that, in the light of "recent economic 
experience", such statutes were justified because 
they prevent "the exploitation of a class of workers 
in ways detrimental to their health and well being." 
Naturally, in this imperfect world, the Supreme Court has 
605 
A 
B 
c 
D 
not always guarded our liberties as jealously as it should. 
E 
During the First World War and again in the McCarthy era, the 
Court often shrank from the affirmation of our rights to think 
and spes:ik as we believe. And in the war hysteria following 
bombing of Pearl Harbor, the Supreme Court in Korematsu v. 
United States upheld the imprisonment of thousands of F 
Americans of Japanese ancestry who had committed no crime. 
In light
of such lapses, some have argued that when it comes 
to protecting fundamental rights, the Supreme Court is 
essentially redundant: on most occasions the Congress and 
the President will adequately safeguard our rights, and in those G 
difficult times when the political branches cannot be counted 
on, neither can the Court."80 
80 Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11 
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A 
103. Our experience is not dissimilar. Judgments in A. K. 
Gopalan81, Sanka/chand82 and ADM Jaba/puri3 (to mention 
a few) should lead to an identical inference that in difficult times 
when political branches cannot be counted upon, neither can 
the Judiciary. The point sought to be highlighted is that judiciary 
B 
is not the ONLY constitutional organ which protects liberties of 
the people. _Accordingly, primacy to the opinion of the judiciary 
in the matter of judicial appointments is not the only mode of 
securing independence of judiciary for protection of liberties. 
Consequently, the assumption that primacy of the Judicial 
C Branch in the appointments process is an essential element 
and thus a basic feature is empirically flawed without any basis 
either in the constitutional history of the Nation or any other 
and normatively fallacious apart from being contrary to political 
0 
theory. 
104. I now deal with the submission that presence of the 
law minister in the NJAC undermines independence of 
judiciary. According to the petitioners, the presence of a 
member of the Executive invariably has the effect of shifting 
E the power dynamics. The presence of the Law Minister in the 
NJAC which confers 1/6 of the voting power per se undermines 
the independence of the judiciary. The submission is untenable. 
The Executive with a vast administrative machinery under its 
control is capable of making enormous and valuable 
F
contribution to the selection process. The objection is justified 
to some extent on the trust deficit in the Executive Branch in 
the constitutional sense84, to be a component of the NJAC. 
" A.K Gopalan v. State of Madras AIR 1950 SC 27 
82 Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 
G 
83 ADM Jabalpur Vs_ s_s. Shukla Etc. Etc. AIR 1976 SC 1207 
H 
"Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2 
of Chapter 1 "Approaches to Constitutional Analysis" - "That all lawful power 
derives from the people and must be held in check to preserve their 
freedom is the oldest and mol!t central tenet of American constitutionalism. 
At the outset, only a small number of explicit substantive limitations on the 
exercise of governmental authority were thought essential; in the main, it was
SUPREME COURT ADVOCATES-ON-RECORD 
607 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
The same logic applies a fortiari to the Judicial branch, 
notwithstanding the belief that it is the least dangerous branch. 
The Constituent Assembly emphatically declined to repose 
exclusive trust even in the CJI. To wholly eliminate the Executive 
from the process of selection would be inconsistent with the 
foundational premise that government in a democracy is by B 
chosen representatives of the people. Under the scheme of 
our Constitution, the Executive is.chartered clear authority to 
administer critical areas such as defence of the realm, internal 
security, maintenance of public order, taxation, management 
. of fiscal policies and a host of other aspects, touching every C 
aspect of the administration of the Nation and lives of its 
people. In this context, to hold that it should be totally excluded 
fromthe process of appointing judges would be wholly illogical 
and inconsistent with the foundations of the theory of D 
democracy and a doctrinal heresy. Such exclusion has no 
parallel in any other democracy whose models were examined 
A 
by the Constituent Assembly and none other were brought to 
our notice either. Established principles of constitutional 
government, practices in other democratic constitutional E 
believed that personal freedom could be secured more effectively by 
decentralization than by express command. From the thought of seventeenth 
century English liberals,
particularly, as elaborated in eighteenth century 
France by Montesquieu, the Constitution"s framers had derived the 
conviction that human rights could best be preserved by inaction and 
indirection-shielded behind the lay of deliberately fragmented centers of F 
countervailing power, in a vision almost Newtonian in its inspiration. In this 
first model, the centralized accumulation of power in any man or single 
group of men meant tyranny; the division and separation of powers, both 
vertically (along the axis of federal, state and local authority) and 
horizontally (along the axis of legislative, executive and judicial authority) 
meant liberty. It was thus essential that no department, branch, or level of G 
government be empowered to achieve dominance on its own. If the. 
legislature would punish, it must enlist the cooperation of the other branches-
the executive to prosecute, the judicial to try and convict. 
So too with each 
other center of governmental power; exercising the mix of functions delegated 
to it by the people in the social compact that was the Constitution, each 
power center would remain dependent upon the others for the final efficacy 
of the social designs." 
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arrangements and the fact that the Constituent Assembly 
provided a role for the Executive clearly prohibit the inference 
that Executive participation in the selection process abrogates 
a basic feature. The Attorney General is right in his submission 
that exclusion of the Executive Branch is destructive of the basic 
B feature of checks and balances - a fundamental principle in 
constitutional theory. 
105. That takes me to the second provision which is 
under challenge. Article 124A.(1 )(d) which stipulates that the 
c NJAC should consist of two eminent persons85• Considerable 
debate took place during the course of hearing regarding 
validity of this provision, the gist of which is captured in the 
judgment of Khehar, J. The attack is again on the ground that 
the provision is utterly without guidance regarding the choice 
o of eminent persons. Petitioners argued that (i) there could be 
bipartisan compromise between the party in power and the 
opposition, resulting in sharing the two slots earmarked for 
eminent persons. Such possibility would eventually enable 
political parties to make appointments purely on political 
E considerations, thereby destroying independence of judiciary; 
(ii) even assuming that the two eminent persons nominated 
are absolute political neutrals, but are strangers to the judicial 
65 Article 124A. National Judicial Appointments Commission.- (1) There 
F 
shall be a Commission to be known as
the National Judicial Appointments 
Commission consisting of the following, namely-
JOO< 
JOO( 
JOO( 
JOO( 
(d) 
two eminent persons to be nominated by the committee consisting 
of the Prime Minister, the Chief Justice of India and the Leader of Opposition 
in the House of the People or where there is no such Leader of Opposition, 
then. the Leader of single largest Opposition Party in the House of the People-
G 
Members. 
Provided that one of the eminent person shall be nominated from 
amongst the persons belonging to the Scheduled Castes, the Scheduled 
Tribes, Other Backward Classes. Minorities or Women. 
H 
Provided further that an eminent person shall be nominated for a 
period of three years and shall not be eligible for renomination ..
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
system, they would not be able to make any meaningful A 
contribution to the selection process, as they would have no 
resources to collect appropriate data relevant for the decision 
making process; (iii) the possibility of two eminent persons 
vetoing the candidature of a person approved unanimously by 
the three judicial members of the NJAC itself is destructive of B 
the basic structure. 
106. Transparency is a vital factor in constitutional 
governance. This Court in innumerable cases noted that 
constitutionalism demands rationality in every sphere of State c 
action. In the context of judicial proceedings, this Court held in 
Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & 
Anr.B6: 
"20 .................... Public trial in open court is 
undoubtedly essential for the healthy, objective and 
fair administration of justice. Trial held subject to 
the public scrutiny and gaze naturally acts as a check 
against judicial caprice or vagaries, and serves as 
a powerful instrument for creating confidence of the 
public in the fairness, objectivity, and impartiality of . 
the administration of justice. Public confidence in 
the administration of justice is of such great 
significance that there can be no two opinions on 
the broad proposition that in discharging their 
functions as judicial tribunals, courts must generally 
hear causes in open and must permit the public 
admission to the
court-room. As Bentham has 
observed: 
"In the darkness of secrecy sinister interest, and 
evil in every shape, have full swing. Only in 
86 AIR 1967 SC 1, para 20. 
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proportion as publicity has place can any of the 
checks applicable to judicial injustice operate. 
Where there is no publicity there is no justice. 
Publicity is the very soul of justice. It is the keenest 
spur to exertion, and surest of all guards against 
B 
improbity. It keeps the Judge himself while trying 
under trial (in the sense that) the security of 
securities is publicity." 
Transparency is an aspect of rationality. The need for 
c transparency is more in the case of appointment process. 
D 
E 
Proceedings of the collegium were absolutely opaque and 
inaccessible both to public and history, barring occasional 
leaks. Ruma Pal , J. is on record -
"Consensus within the collegium is sometimes 
resolved through a trade-off resulting in dubioµs 
appointments with disastrous consequences for the 
litigants and the credibility of the judicial system. 
Besides, institutional independence has also been 
compromised by growing sycophancy and 
'lobbying' within the system."87 
One beneficial purpose the induction of representatives 
of civil society would hopefully serve is that it acts as a check 
on unwholesome trade-offs within the collegium and incestuous 
F accommodations between Judicial and Executive branches. 
G 
H 
To believe that members of the judiciary alone could bring 
valuable inputs to the appointment process requires great 
conceit and disrespect for the civil society .. Iyer, J. cautioned -
"74
............. And when criteria for transfers of 
Judges are put forward by the President which may 
upset past practices we must, as democrats, 
" "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal 
at the 5'" V.M. Tarkunde Memorial Lecture on 10.11.2011
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [CHELAMESWAR; J.] 
remember Learned Hand who once said that the 
spirit of liberty is "the spirit which is not too sure 
that it is right". That great Judge was fond of 
recalling Cromwell's statement : "I beseech ye in 
the bowels of Christ, think that ye may be mistaken." 
He told a Senate Committee. "I should like to 
have that written over the portals of every 
church, every school and every court-house, 
any may I say, of every legislative body in the 
United States. I should like to have every court 
begin "I beseech ye in the bowels of Christ, 
think that we may be mistaken." (Yale Law 
Journal: Vol.71 : 1961, November part)."88 
611 
A 
B 
c 
[emphasis supplied] 
Replace "transfers" and "President" with "appointments" D 
and "Parliament" and Iyer, J's admonition is custom made to 
answer the objections (ii) and (iii) of the petitioners. 
107. There is a possibility that the apprehension 
expressed by the petitioners might come true. The possibility E 
of abuse of a power conferred by the Constitution is no ground 
for denying the authority to confer such power. Bachawat, J. 
in/. C. Golak Nath (supra) opined as follows: 
"235. It is said that the Parliament is abusing its 
power of amendment by making too many frequent 
changes. If the Parliament has the power to make 
the amendments, the choice of making any 
particular amendment must be left to it. Questions 
of policy cannot be debated in this Court. The
possibility of abuse of a power is not the test of its 
existence: In Webb v. Outrim (1907]A.C. 81, Lord 
88 Sanka/chand case (supra) para 78. 
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Hobhouse said, "If they find that on the due 
construction of the Act a legislative power falls within 
S. 92, it would be quite wrong of them to deny its 
existence because by some possibility it may of 
be abused, or limit the range which otherwise would 
be open to the Dominion Parliament". With 
reference to the doctrine of implied prohibition 
against the exercise of power ascertained in 
accordance with ordinary rules of construction, 
Knox C.J., in the Amalgamated Society of 
Engineers v. The Adelaide Steamship Company 
Limited 129 C.L.R. 151, said, "It means the 
necessity of protection against the aggression of 
some outside and possibly hostile body. It is based 
on distrust, lest powers, if once conceded to the 
least degree, might be abused to the point of 
destruction. But possible abuse of power is no 
reason in British law for limiting the natural force of 
the language creating them". 
However, it was a dissenting opinion. But this Court in 
l.R. Coelho (supra), Sabharwal, J. speaking for a unanimous 
Bench of nine Judges, held as follows: 
"76. It is also contended that the power to pack up 
laws in the Ninth Schedule in absence of any indicia 
in Article 31 B has been abused and that abuse is 
likely to continue. It is submitted that the Ninth 
Schedule which commenced with only 13 
enactments has now a list of 284 enactments. The 
validity of Article 31 B is not in question before us.
Further, mere possibility of abuse is not a 
relevant test to determine the validity of a 
provision. The people, through the Constitution,
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
have vested the power to make laws in their 
A 
representatives through Parliament in the same 
manner in which they have entrusted the 
responsibility to adjudge, interpret and construe law 
and the Constitution including its limitation in the 
judiciary. We, therefore, cannot make any 
B 
assumption about the alleged abuse of the power." 
[emphasis supplied] 
In the final analysis, all power could be misused including 
judicial power. The remedy is not to deny grant of power but to C 
structure it so as to eliminate the potential for abuse. The 
power to nominate two eminent persons is conferred upon 
three high constitutional functionaries-the Prime Minister, the 
Leader of the Opposition and the CJI. It is elementary political 
knowledge that the Prime Minister and the Leader of D 
Opposition would always have conflicting political interests and 
would rarely agree upon any issue. Nonetheless, possibility 
of a bipartisan compromise cannot be ruled out. Though, the 
presence of CJI in the Committee should normally be a strong 
deterrent, the possibility of the CJI failing to perceive a political 
E 
compromise or helplessness in the event of such compromise, 
cannot be ruled out. 
108. It is incontestable that nomination of eminent 
persons is not immune to judicial review. There is thus 
F 
possibility of delay in functioning of NJAC and inevitably the 
process of appointments to
CONSTITUTIONAL COURTS. It 
is, therefore, essential that there must be an entrenched 
process of nomination of eminent persons which eliminates 
risk of possible bipartisan q:mipromises. The only conceivable G 
curative is to incorporate another tier of scrutiny in the process 
of nomination. In my considered view, the following safeguard 
would bring this process within permissible contours of the 
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A basic feature simultaneously eliminating the 'delay factor'. The 
Committee contemplated under Article 124-A(1 )(a) should 
prepare a panel of three members for each of the two 
categories of the nominees (for eminent persons)- in all a 
panel of six persons. Such panel should be placed before the 
B full house of the Supreme Court for voting. Nominees securing 
· the highest vote in each of the two categories should eventually 
be nominated as eminent members of the NJAC. Such 
procedure would still preserve the choice of eminent persons 
primarily with the Committee contemplated under Article 124-
C A, while incorporating sufficient safeguard against possible 
abuse of the power by the Committee. 
109. The third provision whose validity is under attack is 
Article 124 B(c), which obligates NJAC to ensure that the 
D person recommended is of ability and integrity. The challenge 
is on the ground that the AMENDMENT does not lay down any 
guidelines to be followed by the NJAC for assessing ability 
and integrity. Even in the absence of any express declaration, 
such an obligation is inherent and implied, having regard to 
E functional responsibilities entrusted to the NJAC. 
The 
precision is only an abundanti cautela. Perhaps prompted 
by certain bad experiences of the past, both pre and post 
Second Judges case . 
. F 
110. Having regard to the nature (i) of the document by 
which such obligation is created; (ii) the
composition of the 
body .(NJAC) upon which the obligation is cast; and (iii) the 
nature of the assignment, the argument is required to be 
rejected. NJAC is a constitutional authority created to perform 
G an important constitutional function. Its charter is the 
Constitution itself. Notwithstanding, the prolixity of our 
Constitution, a constitution is not expected or required to spell 
out every minute detail regarding administration of the State. 
In the context of the American Constitution, it is said that the 
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SUPREME COURT ADVOCATES-ON-RECORD 
615 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
Constitution is an intentionally incomplete, often deliberately A 
indeterminate structure for the participatory evolution of political 
ideals and governmental practices. Constitutions enumerate 
structural arrangements of Government and specify the outer 
limits of powers of each organ of the State. Within such limits, 
how the various organs of the State ought to discharge their B 
allocated functions is a matter of detail, either to be provided 
by law or convention. All written democratic Constitutions are 
full of abstract moral commands! 
111. Three members of the highest judicial body of this c 
country, a member of the Union Cabinet and two eminent 
persons chosen by a Committee consisting of three exalted 
office holders under the Constitution constitute the NJAC. To 
suggest that the NJAC requires detailed guidelines expressly 
spelt out in the text of the Constitution amounts to judicially D 
mandating inflexible standards for constitutional drafting. The 
task of expounding a Constitution is crucially different from that 
of construing a statute. 
112. Provisions of the Constitution are not to be 
interpreted in a· broad and liberal way. They are not to be 
E 
construed in the manner in which a piece of subordinate 
legislation or, for that matter, even a statute is required to be 
interpreted. This Court in S.R. Bommai had an occasion to 
consider this question. Dealing with the
authority of the 
F 
President under Article 356 of the Constitution of India and 
whether the exercise of such authority by the President is 
amenable to judicial review on the parameters enunciated by 
this Court in Barium Chemicals Ltd. v. Company Law Board, 
AIR 1967 SC 295, rejected the submission. 
G 
"35. 
. ........... The test laid down by this Court 
in Barium Chemicals Ltd. v. Company Law Board 
and subsequent decisions for adjudging the validity 
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of administrative action can have no application for 
testing the satisfaction of the President under 
Article 356. It must be remembered that the power 
conferred by Article 356 is of an extraordinary 
nature to be exercised in grave emergencies and, 
therefore, the exercise of such power cannot be 
equated to the power exercised in administrative 
law field and cannot, therefore, be tested by the 
same yardstick ....... . 
255. 
.. .. . ... The exercise of the power under 
Article 356 is a constitutional exercise of the power. 
The normal subjective satisfaction of an 
administrative decision on objective basis applied 
by the courts to administrative decisions by 
subordinate officers or quasi-judicial or subordinate 
legislation does not apply to the decision of the 
President under Article 356. 
373. 
. ....... So far as the approach adopted by 
this Court in Barium Chemical& is concerned, it 
is a decision concerning subjective satisfaction of 
an authority created by a statute. The principles 
evolved then cannot ipso facto be extended to the 
exercise of a constitutional power under Article 356. 
Having regard to the fact that this is a high 
constitutional power exercised by the highest 
. constitutional functionary of the Nation, it may not 
be appropriate to adopt the tests applicable in the 
case of action taken by statutory or administrative 
authorities -
nor at any rate, in their entirety."
113. Such a test is relevant only for bodies created by 
statutes and subordinate legislation. The functioning of any 
constitutional body is only disciplined by appropriate
SUPREME COURT ADVOCATES-ON-RECORD 
617 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
legislation. Constitution does not lay down any guidelines for A 
the functioning of the President and Prime Minister nor the 
Governors or the Chief Ministers. Performance of constitutional 
duties entrusted to them is structured by legislation and 
constitutional culture. The provisions of the Constitution cannot 
be read like a last will and testament lest it becomes one. Even 
B 
prior to the AMENDMENT, the constitutional text had no 
express guidelines for the President and the CJI to follow. It is 
however nobody's case that the pre-AMENDMENT selection 
scenario conferred any uncanalised discretion and therefore 
resulted in some undesirable judicial appointments. If in 
C 
practice, occasionally personal preferences outweighed 
concerns of public interest resulting in undesirable 
appointments, it is not because of constitutional silences in 
this area but because of shortcomings in the ethical standards D 
of the participants in the selection process. After the 
AMENDMENT, the obligation is unvaried. The qnly change is 
in the composition of the players to whom the task is entrusted 
and the mode of performing the task is altered with a view to 
achieve greater degree of transparency in the selection 
E 
process. To contend that the AMENDMENT is destructive of 
the basic structure since it does not lay down any guidelines 
tantamounts to holding that the design of the Constitution as
originally enacted is defective! 
114: The next submission which is required to be dealt F 
is that Section 6(6) of the ACT which stipulates that if any two 
members of the NJAC do not agree with the recommendation 
proposed by the NJAC, the NJAC shall not recommend such· 
candidate. In the opinion of the petitioners, it is a provision 
which confers veto power on two members of the NJAC to G 
scuttle proposa!s. It is submitted that though the provision is 
facially innocuous, in practice, this would result in giving the 
Executive a power of veto to reject the proposals made by the 
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A 
three judicial members of the NJAC. Such a provision is 
violative of the basic structure of the Constitution. It is further 
argued that though the provision is not part of the 
AMENDMENT, since the AMENDMENT and the ACT are 
made simultaneously and the ACT being complementary to 
B the AMENDMENT, the ACT must be understood to be a part 
of the design of the AMENDMENT and, therefore, Section 6(6) 
is required to be struck down on the ground it is violative of the 
basic structure of the Constitution. 
c 
115. The respondents submitted that Section 6(6) of the 
ACT only prescribes a special majority for sanctifying the 
recommendations of NJAC. Prescription of special majorities 
in law is a known phenomenon. The Constitution itself 
prescribes special majorities in certain cases. For example, 
D Article 368(2) prescribes a special majority for amending the 
Constitution. Similarly, Article 124(4) prescribes a special 
majority for the impeachment of judges of the 
CONSTITUTIONAL COURTS. It is argued that the petitioners 
presumption that only Government could take advantage of 
E the prescription under Section 6(6) is totally baseless. In a 
given case it may happen that two judicial members of the 
NJAC can turn down the proposal of the NJAC. Learned 
Attorney General also submitted that such a prescription of a 
special majority is also a part of the regime created under 
F Second Judges case and, therefore, there is nothing
constitutionally objectionable in such a prescription. 
116. The question whether the content of Section 6(6) 
confers a power of veto or prescribes a special majority is 
G only of semantic relevance. Whatever name we call it, the 
result is the same. The two members of the NJAC can override 
the opinion of the other four and stall the recommendation. I 
do not find anything inherently illegal about such a prescription. 
For the purpose of the present case, I do not even want to 
H 
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SUPREME COURT ADVOCATES-ON-RECORD 
619 
ASSOCIATION v. U.0.1. [CHELAMESWAR, J.] 
embark upon an enquiry whether the constitutional fascination 
A 
for the basic structure doctrine be made a Trojan horse to 
penetrate the entire legislative camp. For my part, I would like 
to examine the question in greater detail before answering 
the question. There are conflicting views of this Court on this 
proposition.89 In my opinion, such an enquiry is not required in B 
this case in view of the majority decision that the 
AMENDMENT is unsustainable. Some of the learned counsel 
for the petitioners placed reliance on S.R. Bommai case as a 
justification for the invocation of the doctri~e of basic structure. 
117. Only to indicate but not determine conclusively the c 
scope of the enquiry to answer the submission of the 
petitioners, I examine S.R. Bommai case. 
The question 
before this Court was whether the action of the President in 
invoking the powers under Article 356 was constitutionally D 
tenable? In other words, whether the material on which the 
President acted was constitutionally relevant for the invocation 
of powers under Article 356. The submission of the petitioners 
before this Court was that the exercise of powers under Article 
356 was inconsistent with two features of the Constitution, i.e. 
E 
the democracy and federalism, therefore, destructive of the 
basic structure, as the Presidential action under Article 356 
resulted in the super session of the
democratically elected 
State Governments by the Union Government. 
118. Repelling the contention, this Court held that 
secularism is also one of the basic features of the Constitutioa. 
The conscious inaction of the various State Governments and 
consequential failure to prevent certain activities which in 
F 
the opinion of the petitioners (endorsed by this court by the G 
89 Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 
166, Krishna Iyer, J. -
. 
"20. The question of basic structure .being breached cannot arise when we 
examine the vires of an ordinary legislation as distinguished from a 
constitutional .amendment." 
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A judgment) would ultimately result in the destruction of the 
secular fabric of the Constitution has certainly a relevant 
consideration for the exercise of extraordinary powers vested 
in the President under Article 356. Because Article 356 
obligates the President to resort to the action contemplated 
B thereunder only if the President is satisfied that a situation has 
arisen in which the Government of the State cannot be carried 
on in accordance with the provisions of the Constitution. Failure 
of the State Government to prevent activities which are bound 
to destroy the communal harmony between people following 
C different religions is certainly inconsistent with the constitutional 
obligation of the State to upheld the Constitution of which 
secularism is a basic feature. S.R. Bommai case is no authority 
for the proposition that the validity of a legislation is amenable 
0 
to judicial review on the ground of the basic structure doctrine. 
119. The fiasco created in Dinakaran case (supra) and 
Shanti Bhushan case (supra) would justify the participation of 
the members of the civil society in the process to eliminate 
from the selection process the maladies involved in the process 
E 
pointed out by Ruma Pal, J. The abovementioned two are not 
the only cases where the system failed. It is a matter of public 
record that in the last 20 years, after the advent of the collegium 
system, number of recommendations made by the
collegia of 
High Courts came to be rejected by the collegium of the 
F 
Supreme Court. There are also cases where the collegium of 
this Court quickly retraced its steps having rejected the 
recommendations of a particular name made by the High Court 
collegium giving scope for a great deal of speculation as to 
the factors which must have weighed with the collegium to 
G make such a quick volteface. Such decisions may be justified 
in some cases and may not in other cases. There is no 
accountability in this regard. The records are absolutely 
beyond the reach of any person including the judges of this 
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SUPREME COURT ADVOCATES-ON-RECORD 
621 
ASSOCIATION v. U.0.1. 
Court who are not lucky enough to become the Chief Justice A 
of India. S.uch a state of affairs does not either enhance the 
credibility of the institution or good for the people of this country. 
120. For all the abovementioned reasons, I would upheld 
the AMENDMENT. However, in view of the majority decision, 
8 
I do not see any useful purpose in examining the constitutionality 
of the ACT. 
121. Only an independent and efficient judicial system 
can create confidence in the society which it serves. The ever 
increasing pendency of matters before various C 
CONSTITUTIONAL COURTS of this country is clearly not a 
certificate of efficiency. The frequency with which the residuary 
jurisdiction of this Court under Article 136 is invoked seeking 
correction of errors committed by the High Courts, some of 
which are trivicil and some profound coupled with bewildering D 
number of conflicting decisions rendered by the various 
benches of this Court only indicate that a comprehensive 
reform of the system is overdue. Selection process of the 
Judges to the CONSTITUTIONAL COURTS is only one of the 
aspect of such reforms. An attempt in that direction, 
E 
unfortunately, failed to secure the approval of this Court leaving · 
this Court with the sole responsibility and exclusive 
accountability of the efficiency of the legal system. I only part 
with this case recollecting the words of Macaulay - "reform 
F 
that you
may preserve"90• Future alone can tell whether I am 
rightly reminded of those words or not. 
ORDER 
MADAN B. LOKUR, J. 1. I have had the benefit of going 
through the draft order prepared by my learned brothers Justice G 
Khehar, Justice Chelameswar and Justice Kurian Joseph.· 
90 Thomas Babington Macaulay's address on 2"' March 1831 in the House of 
Commons on Parliamentary Reforms 
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A While endorsing the view expressed by my learned brothers 
Justice Khehar and Justice Chelameswar, I would like to add 
a few words on the procedural aspect of dealing with an 
application for recusal. 
2. Justice Khehar has mentioned in Paragraph 17 of the 
B draft order as follows:-
"The decision to remain as a member of the reconstituted 
Bench was mine, and mine alone." 
3. In my respectful opinion, when an application is made 
C for the recusal of a judge from hearing a case, the application 
is made to the concerned judge and not to the Bench as a 
whole. Therefore, my learned brother Justice Khehar is 
absolutely correct in stating that the decision is entirely his, 
and I respect his decision. 
D 
4. In a .detailed order pronounced in Court on its own 
motion v. State & Others1 reference was made to a decision 
of the Supreme Court of the United States in Jewell Ridge 
Coal Corporation v. Local No. 6167, United Mine Workers 
of America2, wherein it was held that a complaint as to the 
E qualification of a justice of the Supreme Court to take part in 
the decision of a cause cannot properly be addressed to the 
Court as a whole and it is the responsibility of each justice to 
determine for himself the propriety of withdrawing from a case. 
F 
5. This view was adverted to by Justice Rehnquist in 
Hanrahan v. Hampton3 in the following words:-
"Plaintiffs-respondents and their counsel in these cases 
have moved that I be
recused from the proceedings in 
this case for the reasons stated in their 14-page motion 
G 
and their five appendices filed with the Clerk of this Court 
on April 3, 1980. The motion is opposed by the state-
H 
1 MANU/DE/9073/2007 
2 325 us 897 (1945) 
J 446 us 1301 (1980)
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defendant petitioners in the action. Since generally the A 
Court as an institution leaves such motions, even though 
they be addressed to it, to the decision of the individual 
Justices to whom they refer, see Jewell Ridge Coal 
Corp. v. Mine Workers, 325 U.S. 897 (1945) (denial of 
petition for rehearing) (Jackson, J., concurring), I shall 
B 
treat the motion as addressed to me individually. I have 
considered the motion, the Appendices, the response 
of the state defendants, 28 U.S.C. 455 (1976 ed. And 
Supp. II), and the current American Bar Association 
Code of Judicial Conduct, and the motion is accordingly c 
denied." 
6. The issue of recusal may be looked at slightly 
differently apart from the legal nuance. What would happen if, 
in a Bench of five judges, an application is moved for the recusal 
of Judge A and after hearing the application Judge A decides D 
to recuse from the case but the' other four judges disagree 
and express the opinion that there is no justifiable reason for 
Judge A to recuse from the hearing? Can Judge A be 
compelled to hear the case even though he/she is desirous of 
recusing from the hearing? It is to get over such a difficult E 
\ 
situation that the application for recusal is actually to an 
individual judge and not the Bench as a whole. 
7. As far as the view expressed by Justice Kurian Joseph 
that reasons should be given while deciding an
application for F 
recusal, I would prefer not to join that decision. In the first place, 
giving or not giving reasons was not an issue before us. That 
reasons are presently being given is a different matter 
altogether. Secondly, the giving of reasons is fraught with some 
difficulties. For example, i.t is possible that in a given case, a G 
learned judge of the High Cou~ accepts an application for his/ 
her recusal from a case and one of the parties challenges that 
order in this Court. Upon hearing the parties, this Court comes 
to the conclusion that the reasons given by the learned judge 
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A were frivolous and therefore the order is incorrect and is then 
set aside. In such an event, can this Court pass a consequential 
order requiring the learned judge to hearthe case even though 
he/she genuinely believes that he/she should not hear the case? 
8. The issue of recusal from hearing a case is not as 
B simple as it appears. The questions thrown up are quite 
significant and since it appears that such applications are 
gaining frequency, it is time that some procedural and 
substantive rules are framed in this regard. If appropriate rules 
are framed, then, in a given case, it would avoid 
C embarrassment to other judges on the Bench. 
JUDGMENT 
MADAN B. LOKUR, J. 1. The questions for 
consideration are: Firstly, whether the Constitution (Ninety-ninth 
D Amendment) Act, 2014 which substitutes and replaces the 
extant procedure for the appointm.ent of judges of the Supreme 
Court and the High Courts with a radically different procedure 
impinges on the independence of the judiciary and violates 
the basic structure of the Constitution; Secondly, whether the 
E National Judicial Appointments Commission Act, 2014 is a 
constitutionally valid legislation. 
2. In my opinion, the Constitution (Ninety-ninth 
Amendment) Act, 2014 (for short the 991h Constitution 
F Amendment Act) alters the basic structure of the Constitution 
by introducing substantive changes in the appointment of 
judges to the Supreme Court and the High
Courts and rewriting 
Article 124(2) and Article 217(1) of the Constitution, thereby 
seriously compromising the independence of the judiciary. 
G Consequently, the ggth Constitution Amendment Act is 
unconstitutional. Since the 991h Constitution Amendment Act 
is unconstitutional, the National Judicial Appointments 
Commission Act, 2014 (for short the NJACAct) which is the 
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child of the 991h Constitution Amendment Act cannot A 
independently survive on the statute books. Even otherwise, it 
violates Article 14 of the Constitution by enabling substantive 
arbitrariness in the appointment of judges to the Supreme 
Court and the High Courts. 
3. Having had the benefit of reading the draft judgment B 
of Justice Khehar, Justice Kurian Joseph and Justice Adarsh 
Kumar Goel, I am in respectful agreement with the conclusions 
arrived at with regard to the constitutional validity of the 991h 
Constitution Amendment Act but prefer to supplement them c 
with additional reasons. I am in respectful disagreement with 
the view of Justice Chelameswar. I believe all the submissions 
made by various learned counsel led by Mr. Fali S. Nariman 
on .behalf of the petitioners and by Mr. Mukul Rohatgi the 
learned Attorney-General on behalf of the respondents have D 
been noted and dealt with by Justice Khehar in his draft 
judgment and in respect of some of them, I have nothing to 
add to what has already been said. 
Historical background 
.E 
4. George Santayana, philosopher, essayist, poet and 
novelist is believed to have said something to the effect that: 
'Those who do not remember their past are condemned to 
repeat their mistakes.' Keeping this in mind, it is essential to 
appreciate the evolution of the process for the appointment of F 
judges in the Indian judiciary, the
various alternatives discussed 
and debated and then to consider and analyze the solution 
given by the Constitution (Ninety-ninth Amendment) Act, 2014 
and the National Judicial Appointments Commission Act, 2014. 
This is important for another reason - some of the 'mistakes' G 
made before Constituent Assembly accepted the Constitution 
of India, have been revived and enacted, even though the 
Constituent Assembly debated and rejected them. 
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A 
5. Section 101 of the Government of India Act, 1919 
provided for the appointment of the Chief Justice and judges 
of the High Court and Section 102 provided for their tenure. It 
was provided that the appointment shall be made by His 
Majesty and the judge shall hold office 'during His Majesty's 
B 
pleasure.' Since the appointment process and the tenure of a 
judge depended upon the Crown's pleasure, perhaps the issue 
of the independence of the judiciary was not the subject of 
discussion in India. In any event, nothing was pointed out in 
this regard one way or the other during the submissions made 
C 
by learned counsel. 
6. The Government of India Act, 1935 partially changed 
the procedure for the appointment of judges to the High Courts 
and introduced a procedure for the appointment of judges to 
o the Federal Court constituted by the said Act. Section 200 
and 201 dealt with the appointment of judges of the Federal 
Court and while the Crown continued to make the appointments 
(apparently without any formal consultation process); their 
tenure was fixed at the age of 65 years. Removal of a judge 
E was possible only on the ground of misbehavior or of infirmity 
of mind or body. Section 201 provided for the salary, 
allowances, leave and pension of a judge and this could not 
be varied to his/her disadvantage after appointment. Section 
220 and 221 related to the appointment of a judge of the High 
F 
Court and the
provisions thereof were more or less similar to 
the appointment of a judge of the Federal Court. 
7. The Government of India Act, 1935 gave a semblance 
of an independent judiciary in that it provided some basic 
G requirements of independence such as eligibility for 
appointment, security of tenure including the removal process, 
assurance of salary, allowances and pension etc. Again, 
nothing specific was shown to us, one way or the other, which 
could throw light on the contemporaneous practice regarding 
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the appointment process or the independence of the judiciary. 
A 
A general practice on the appointment of judges was, however, 
subsisting and this has been adverted to by the Supreme Court 
of Pakistan in Al-Jehad Trust v. Federation of Pakistan.1 It 
was observed that ever since 1911 when the Indian High Courts 
Act was enacted and certainly from 1915/1919 onwards when 
B 
the Government of India Act was enacted, the recommendation 
of the Chief Justice for the appointment of a judge was 
accepted even though the appointment of a judge was a matter 
of the pleasure of the Crown. ltwas said: 
"Act of appointment of a Chief Justice or a Judge 
in the superior Court is an executive act. No doubt 
this power is vested in the Executive under the 
relevantArticles of the Constitution, butthe question 
is, as to how this power is to be exercised. 
Conventions can be pressed into service while 
construing a provision of the Constitution and for 
channelising and regulating the exercise of power 
under the Constitution: whereas undertt}e Islamic 
Jurisprudence, a convention which is termed as Urf 
has a binding force on the basis of various Islamic 
sources, it has been a consistent practice which 
has acquired the status of convention during pre 
partition days of India as well as post partition 
period that the recommendations of the Chief 
Justice of a High Court and the Chief Justice of the
Supreme Court in India as well as in Pakistan have 
been consistently accepted and acted upon except 
in very rare cases. The practice of consultation of 
the Chief Justice of a High Court and the Indian 
Federal Court was obtaining even under the Indian 
High Courts Act [1911] as well as under the 
1 PLD 1996 SC 324 (Five Judges Bench) 
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Government of India Act 1915, though the 
appointment of Judges of superior Courts in India 
was a matter of pleasure vested in the Crown. The 
recommendations of the Chief Justices even in 
those days were accepted as a matter of course." 
Sapru Committee 
8. The issue of the appointment of judges (for 
Independent India) first came up for discussion (as itappears) 
before the Sapru Committee. A Report prepared by this 
C 
Committee in 1945 dealt with the Legislature, the Executive 
and the Judiciary in Chapter V thereof. The relevant paragraphs 
pertaining to the appointment of judges are paragraphs 259, 
261 and 268.2 The Committee was of the opinion that the 
independence of the judiciary is of 'supreme importance for 
D the satisfactory working of the Constitution and nothing can 
be more detrimental to the well-being of a Province or 
calculated to undermine public confidence than the possibility 
of executive interference with the strength and independence 
of the highest tribunal of the Province.' It was dearth at it desired 
E to secure the 'absolute independence' of the High Court and 
to put the judges above party politics or influences. The 
Committee proposed a limited consultative system of 
appointment of judges completely leaving out the Legislature 
F 
and the Executive. The Committee proposed consultation only 
between the Head of the State and the Chief Justice of India 
for appointments to the Supreme
Court and for the High Courts, 
in addition, the Head of the Unit (Province) and the Chief Justice 
of the High Court. The relevant paragraphs of the Report read 
G as follows: 
H 
"259. In our Recommendation No.13 we first 
recommend that there shall be a Supreme Court 
'https://archive.org/stream/saprucommittee035520mbp/saprucommittee 
035520mbp djvu txt
SUPREME COURT ADVOCATES-ON-RECORD 
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for the Union and a High Court in each of the units. 
Then in the second clause we recommend that the 
strength of judges in each of these Courts at the 
inception of the Union as well as the salaries to be 
paid to them shall be fixed in the Constitution Act 
and no modification in either shall be made except 
on the recommendation of the High Court, the 
Government concerned and the Supreme Court 
and with the sanction of the Head of the State, 
provided, however, that the salary of no judge shall 
be varied to his disadvantage during his term of 
office. In sub-clause (3) we recommend:-
"(a) The Chief Justice of India shall be 
appointed by the Head of the State and the 
other judges of the Supreme Court shall be 
appointed by the Head of the State in 
consultation with the Chief Justice of India." 
"(b) The Chief Justice of a High Court shall 
be appointed by the Head of the State in 
consultation with the Head of the Unit and the 
Chief Justice of India." 
"(c) Other judges of a High Court shall be 
appointed by the Head of the State in 
consultation with the Head of the Unit, the 
Chief Justice of the High Court concerned and 
the ChiefJustice of India." 
261. Our main object in making these 
recommendations is to secure the absolute 
independence of the High Court and to put them 
above party politics or influences. Without some 
such safeguards, it is not impossible that a 
Provincial
Government may under political pressure 
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affect prejudicially the strength of the High Court 
within its jurisdiction or the salary of its Judges. If it 
is urged that the High Court and the Government 
concerned will be more or less interested parties 
in the matter, the intervention of the Supreme Court 
and of the Head of the State would rule out all 
possibility of the exercise of political or party 
influences. The imposition of these conditions, may, 
on a superficial view, seem to be inconsistent with 
the theoretical autonomy of the Provinces, but, in 
our opinion, the independence of the High Court 
and of the judiciary generally is of supreme 
importance for the satisfactory working of the 
Constitution and nothing can be more detrimental 
to the well-being of a Province or calculated to 
undermine public confidence than the possibility of 
executive interference with the strength and 
independence of the highest tribunal of the 
Province. 
268. We now come to the method of appointment 
of Judges. Under the existing law Judges of High 
Courts and of the Federal Court are appointed by 
the Crown. We have recommended that the Chief 
Justice of India should be appointed by the Head 
of the State. In this connection we would refer to 
our discussion of the phrase 'Head of the State' in 
Chapter VI. Similarly we have recommended that 
the other Judges of the Supreme Court shall be 
appointed by the Head of the State in consultation 
with the
Chief Justice of India. The Chief Justice of 
a High Court shall be appointed by the Head of the 
State in consultation with the Head of the Unit and 
the Chief Justice of India, and the other judges of a
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
High Court shall be appointed by the Head of the 
State in consultation with the Head of the Unit, the 
Chief Justice of the High Court concerned and the 
Chief Justice of India. We have deliberately placed 
the appointment of these Judges, including Judges 
of the Provincial High Courts outside the purview 
of party politics, and we make the same 
observations as above in justification of this 
provision notwithstanding its seeming interference 
with the theoretical autonomy of the Provinces." 
9. As mentioned, 'Head of State' was discussed in 
Chapter VI of the Report and in so far as the judiciary is 
concerned, the Head of State was expected to act 'on his own' 
631 
A 
B 
c 
as the occupant of the office of Head of State and not on the 
advice of the Federal Ministry. More specifically, the Head of D 
State was to act on his/her own in the matter of appointment 
and removal of judges. This is what was said in the Report: 
''The Union will be a democratic federal State and 
the Head of the State who will replace both the 
Governor-General and the Crown Representative 
and might be given a suitable indigenous 
designation, if necessary should exercise such 
functions as are given to him only on the advice of 
his Federal Ministry, barring a few very exceptional 
cases, to be specifically mentioned in the 
Constitution Act, where discretion is given to him 
to act on his own or on advice other
than that of the 
Federal Ministry (1) for avoiding political or 
communal graft, or (2) for taking the initiative in the 
national interest, especially in exceptional and fast 
moving situations such as exist at the present day. 
Under exception (1) will fall the suggestions we have 
made under paragraph 13 of our recommendations 
E. 
F 
G 
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A 
as regard the alteration of the strength of High 
Courts and the appointment and removal of judges 
of the Supreme Court and the High Courts."3 
Ad hoc Committee on the Supreme Court 
B 
10. After the Constituent Assembly was formed, an Ad 
hoc Committee on the Supreme Court was set up which 
presented its Report of 21st May, 194 7 to the Constituent 
Assembly. Paragraph 14 of the Report is of relevance to the 
issue of appointment of judges of the Supreme Court. It 
C accepted, in principle, the qualification for the appointment of 
judges to the Supreme Court, as mentioned in the Government 
of India Act, 1935 but found it inexpedient 'to leave the power 
of appointing judges of the Supreme Court to the unfettered 
discretion of the President of the Union.' It made two 
D suggestions in the appointment procedure, both of which 
necessitated consultation between the President and the Chief 
Justice of India and the opinion of a panel of 11 (eleven) 
persons comprising of, inter alia, some Chief Justices of the 
High Courts, some members of both the Houses of the Central .. 
E Legislature and some law officers of the Union. It was proposed 
that the executive be kept out of the appointment process. The 
said paragraph reads as follows: 
"14. The qualifications of the judges of the Supreme 
F 
Court may be laid down on terms very similar to 
those in the Act of 1935 as regards the judges of 
the Federal Court, the possibility
being borne in 
mind (as in the Act of 1935) that judges of the 
superior courts even from the States which may join 
G 
the Union may be found fit to occupy a seat in the 
Supreme Court. We do not think that it will be 
expedient to leave the power of appointing judges 
of the Supreme Court to the unfettered discretion 
H ' Paragraph 288
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
of the President of the Union. We recommend that 
either of the following methods may be adopted. 
One method is that the President should in 
consultation with the Chief Justice ofthe Supreme 
Court (so far, as the appointment of puisne judges 
is concerned) nominate a person whom he 
considers fit to be appointed to the Supreme Court 
and the nomination should be confirmed by a 
majority of at least 7 out of a panel of 11 composed 
of some of the Chief Justices of the High Courts of 
the constituent units, some members of both the 
Houses of the Central Legislature and some of the 
law officers of the Union. The other method is that 
the panel of 11 should recommend three names 
out of which the President, in consultation with the 
Chief Justice, may select a judge for the 
appointment. The same procedure should be 
followed for the appointment of the Chief Justice 
except of course that in this case there will be no· 
consultation with the Chief Justice. To ensure that 
the panel will be both independent [and] command 
confidence the panel should not be an ad hoc body 
but must be one appointed for a term of years."4 
11. There was clearly a divergence of opinion between 
633 
A 
B 
c 
D 
E 
the Sapru Committee and the Ad hoc Committee on the 
F 
consultation process for the appointment of judges. The Sapru 
Committee felt that the appointment of judges should be left to 
the Head of State
acting on his/her own while the Ad hoc 
Committee did not approve of the appointment process being 
left to the 'unfettered discretion of the President' but suggested G 
it to be broad-based involving a panel. 
· 
12. However, what is apparent from both the Report of 
4 http-([164 100 47 132/LssNew/cons!j!ueotlyol4p6 html 
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A 
the Sapru Committee and the Report of the Ad hoc Committee 
· is that tfle executive was not to be involved at all in the process 
of appointment of judges. This is of considerable significance. 5 
Memorandum on the Union Constitution and Draft 
8 
Clauses 
13. On 3Qth May, 194 7 the Constitutional Advisor to the 
ConstituentAssembly, Sir B.N. Rau submitted a Memorandum 
on the Union Constitution and Draft Clauses. The 
Memorandum provided in Chapter VI (The Union Judicature) 
C that there shall be a Supreme Court 'with powers and 
jurisdiction as recommended by the ad hoc Committee on the 
Union Judiciary. '6 In the draft clauses of the Union Constitution 
appended to the Memorandum, it was provided that every judge 
of the Supreme Court shall be appointed by the President with 
D the approval of not less than 2f3rd of the members of the Council 
. of State.7 In this regard, the Law Commission of India notes in 
its 8Qth Report as follows: 
"The Constitutional Adviser, in his memorandum 
E 
dated May 3Qth, 1947 suggested that the 
appointment of Judges should be made by the 
President with the approval of at least two-thirds of 
the Council of State. The Council of State, 
· according to him, was to be a body in the nature of 
F 
a Privy Council for advising the President on certain 
matters on which decisions were required on 
independent non-party lines. The Council of State 
was to include the Chief Justice of India among
its 
members and its composition was to be such as 
G 
to secure freedom from party bias. Such a Council 
5 Lay persons were also not included in the consultation process. 
• B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, 
Volume II page 486 
7 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, 
H Volume II page 519
SUPREME COURT ADVOCATES-ON-RECORD 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
of State, it was suggested by the Constitutional 
Adviser, would be a satisfactory substitute for the 
panel recommended by the Special Committee. 
The Union Constitution Committee did not accept 
the proposal of the Constitutional Adviser for setting 
up of a Council of State, and suggested that the 
procedure for the appointment of judges should be 
that the President should consult the Chief Justice 
and such other judges of the Supreme Court as 
635 • 
A 
B 
might be necessary."8 
c 
14. It appears that by this time, the independence of the 
judiciary was taken for granted, the only question being the 
procedure for the appointment of judges -whether it should 
be the exclusive responsibility of the President or it should be 
broad-based involving a panel or a Council of State. In any D 
event, the exclusion of the executive in the appointment process 
appears to have been taken as accepted. 
Union Constitution Committee 
15. The Union Constitution Committee which presented 
E 
a Report to the Constituent Assembly on 41h July, 1947 
did not adopt the proposal for setting up a Council of 
State. Consequently, an alternative procedure for the 
appointment of a judge of the Supreme Court was suggested, 
namely, for the appointment by consultation between the 
F 
President and the Chief Justice of the Supreme Court and 
such other judges of the Supreme Court and judges of the High 
Court as may be
necessary. In other words, the limited 
consultative process as originally envisaged by the Sapru G 
Committee (between the President and the Chief Justice of 
India) was accepted though with modifications. Chapter IV 
paragraph 18 of the Report concerns itself with the 
• Paragraphs 4.4 and 4.5 
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appointment of judges of the Supreme Court and this reads 
B 
c 
D 
E 
F 
as follows: 
"18. Supreme Court.-There shall be a Supreme 
Court with the constitution, powers and jurisdiction 
recommended by the ad hoc Committee on the 
Union Judiciary, except that a judge of the Supreme 
Court shall be appointed by the President after 
consulting the Chief Justice and such other judges 
of the Supreme Court as also judges of the High 
Courts as may be necessary for the purpose. 
[NOTE - The ad hoc Committee on the Supreme 
Court has observed that it will not be expedient to 
leave the power of appointing judges of the 
Supreme Court to the unfettered discretion of the 
President of the Federation. They have suggested 
two alternatives, both of which involve the setting 
up. of a special panel of eleven members. 
According to one alternative, the President, in 
consultation with the Chief Justice, is to nominate 
a person for appointment as puisne judge and the 
nomination has to be confirmed by at least seven 
members of the panel. According to the other 
alternative, the panel should recommend three 
names, out of which the President, in consultation 
with the Chief Justice, is to select one for the 
appointment. The provision suggested in the above 
clause follows the decision of the Union Constitution 
Committee.]"9 
G 
Again, the executive had no role to play in the 
H 
appointment of judges, specifically of the Supreme Court.
9 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, 
Volume II page 583
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Provincial Constitution Committee 
A 
16. With regard to the High Courts, a Report of 27111 June, 
1947 was submitted to the Constituent Assembly by the 
Provincial Constitution Committee. Part II thereof pertained to 
the Provincial Judiciary and the recommendations made for 8 
the appointment of judges of the High Court incorporated the 
provisions of the Government of India Act, 1935 and the 
recommendations made by the Union Constitution Committee. 
These read as follows: 
"The Provincial Judiciary 
c 
1. The provisions of the Government of India Act, 1935, 
relating to the High Court should be adopted mutatis 
mutandis; but judges should be appointed by the 
President of the Federation in consultation with the Chief D 
Justice of the Supreme Court, the Governor of the 
Province and the Chief Justice of the High Court of the 
Province (except when the Chief Justice of the High Court 
himself is to be appointed). 
2. Jhe judges of the High Court shall receive such 
E 
emoluments and allowances as may be determined by 
Act of the Provincial Legislature and until then such as 
are prescribed in Schedule ........... . 
3. The emoluments and allowances of the judges shall 
F 
not be diminished during their term of office."10 
The above discussion indicates that the executive was 
to be kept out of the process of appointing judges to the 
Supreme Court and the High Courts. This is clear from
the 
views of: ( 1) The Sapru Committee; (2) The Ad hoc Committee G 
on the Supreme Court; (3) The Union Constitution Committee, 
10 B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents, 
Volume II page 662 
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A and (4) The Provincial Constitution Committee. This will have 
some bearing when the composition of the National Judicial 
Appointments Commission is examined. 
17. In this background pertaining to the judiciary, the first 
8 
draft of the Constitution was placed before the Drafting 
Committee in October, 194 7. This was followed by another 
(revised) draft submitted to the President of the Constituent 
Assembly on 21st February, 1948. There was no significant 
change between these two drafts as far the appointment 
c process for the Federal Judicature (or the High Courts in the 
Provinces/States) is concerned. But, it is important to note that 
the Drafting Committee did not throw overboard the view of 
any of the committees mentioned above, that is, to keep the 
executive out of the process of appointment of judges. 
D 
Conference of Chief Justices 
18. Wide publicity was given to the Draft Constitution to 
enable interested persons to express their views through 
comments and suggestions. The views expressed by the 
E Conference of Chief Justices (the Chief Justice of the Federal 
Court and Chief Justices of the High Courts), the Minorities 
Sub-Committee and the Advisory Committee on Fundamental 
Rights, Minorities and Tribal and Excluded Areas are important 
since they explain the interplay between the Executive and the 
F Judiciary in the matter of appointment of judges. 
19. These views also make it clear that almost
immediately after Independence (or thereabouts) the executive 
began to interfere in the appointment of judges of the High 
Courts. This interference by the executive (or in the present 
G day language, the political executive) is the genesis of the 
problem that we are grappling with even today. 
H 
20. The Conference of Chief Justices was held on 26th 
and 27th March, 1948 to consider the proposals in the
SUPREME COURT ADVOCATES-ON-RECORD 
639 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Draft Constitution concerning the judiciary. A Memorandum A 
representing the views of the Federal Court and of the Chief 
Justices representing all the Provincial High Courts of the Union 
of India was prepared and submitted by the Conference.11 This 
Memorandum is of immense importance in understanding the 
prevailing appointment process. 
B 
21. Very briefly, in what may be described as the 
'preamble' to the Memorandum, a few salient points were 
assumed and noticed. It was assumed that the independence 
- and integrity of the judiciary is of the 'highest importance' not c 
only to the judges but to the citizens seeki~g resort from a court 
of law against the high handed and illegal exercise of power 
. by the executive. It was noticed that there is a tendency to 
whittle down the powers, rights and authority of the judiciary 
which, if allowed to continue, would be 'most unfortunate'. 
D 
Therefore, there was a need to col.interact this tendency which 
was likely to grow witl;J,_greater power being placed in the hands 
of the political parties."lt was said: 
· 
"We have assumed that it is recognized on all hands that 
the independence and integrity of the judiciary in a 
E 
democratic system of government is of the highest 
importance and interest not only to the judges but to the 
citizens at large who may have to seek redress in the 
last resort in courts of law against any illegal
acts or the 
F 
high-handed exercise of power by the executive. Thanks 
to the system of administration of justice established by 
the British in this country, the judiciary until now has, in 
the main, played and independent role in protecting the 
rights of the individual citizen against encroachment and 
G 
invasion by the executive power. Unfortunately, however, 
a tendency has, of late, been noticeable to detract from 
11 The text of the Memorandum is available in B. Shiva Rao: ;The Framing of 
India's Constitution' - Select Documents, Volume IV page 193 
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the status and dignity of the judiciary and to whittle down 
their powers, rights an authority which if unchecked would 
be most unfortunate. While we recognize that the Draft 
Constitution proposes to liberalize in some respects the 
existing safeguards against executive interference and 
to enlarge their present powers, it is felt that further 
provision should be made in the same direction in order 
effectively to counteract the aforesaid tendency which is 
bound to become more pronounced as more power 
passes into the hands of political parties who will control 
and dominate the governmental machinery in the years 
to come. In making the following proposals and 
suggestions, the paramount importance of securing the 
fearless functioning of an independent, incorruptible and 
efficient judiciary has been steadily kept in view." 
The Memorandum specifically pointed out (sadly) that 
after 15th August, 1947 the appointment of judges to the High 
Courts, on merit, was not always assured in view of the practice 
followed (by some States). Also, recommendations by the 
E Chief Justice of the High Court were not always forwarded to 
the Central Government, implying thereby that some other 
recommendations were forwarded. In this regard it was said: 
F 
G 
H 
"Discussions at the conference revealed that the 
procedure followed after 15th August 1947 does not in 
practice always ensure appointment being made purely 
on
merit without political, communal and party 
considerations being imported into the matter. Though 
it is acknowledged readily enough in principle that such 
considerations should not influence the appointment, this 
is not always kept in view in working the procedure in 
practice. The Chief Justice sends his recommendation 
to the Premier who consults his Home Minister. The 
recommendation of the Premier is then forwarded to the 
/
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Home Ministry at the Centre without even sending the A 
recommendation of the Chief Justice along with it, the 
prescribed procedure being apparently understood as 
not rendering it obligatory for the Premier to do so." 
22. Consequently, a modified procedure for making 
8 
recommendations was unanimously recommended by the 
Conference which would ensure that the recommendation of 
the Chief Justice reaches the President and that the 
appointment be made with the concurrence of the Chief Justice 
of India to avoid any political pressures. It was said: 
c 
"The Chief Justice should send his recommendation in 
that behalf directly to the President. After consultation with 
the Governor the President should make the appointment 
with the concurrence of the Chief Justice of India. This 
procedure would obviate the need for the Chief Justice D 
of the High Court discussing the matter with the Premier 
and his Home Minister and "justifying" his 
recommendations before them. It would also ensure the 
recommendation .of the Chief Justice of the High Court 
being always placed before the appointing authority, 
E 
namely, the President. The necessity for obtaining the 
"concurrence" of the Chief Justice of India would provide 
a safeguard against political and party pressure at the 
highest level being brought to bear in the matter." 
F 
23. Significantly, the Memorandum tacitly and implicitly
acknowledged that apart from a recommendation for the 
appointment of a judge of a High Court originating from the 
Chief Justice of the High Court, recommendations were being 
made by or at the instance of the political executive. Whether G 
such a procedure was right or wrong was not considered but it 
was suggested that in the event of such a recommendation 
being maoe, the concurrence of the Chief Justice of India 
should be obtained before the appointment is made. The 
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Memorandum proposed that Article 193(1) of the Draft 
Constitution concerning the appointment of a judge of a High 
Court should read as under: 
B 
"Every judge of the High Court shall be appointed by the 
President by a warrant under his hand and seal on the 
recommendation of the Chief Justice of the High Court 
after consultation with the Governor of the State and with 
the concurrence of the Chief Justice of India ... " 
' 
. 
The 
Memorandum 
acknowledged 
that 
a 
C recommendation for the appointment of a judge of the High 
Court could also be made by the President (in an individual 
capacity). In the event of such a proposal (by the President), 
there was no likelihood of the Chief Justice of India not 
accepting it and, therefore, the concurrence of the Chief 
D Justice of India was not required to be incorporated in the 
E 
F 
G 
H 
Constitution. It was, therefore, noted: 
"We do not think it necessary to make any provision in 
the Constitution for the possibility of the Chief Justice of 
India refusing to concur in an appointment proposed by 
the President. Both are officers of the highest 
responsibility and so far no case of such refusal has arisen 
although a convention now exists that such appointments 
should be made after referring the matter to the Chief 
Justice of India and obtaining his concurrence. If per 
chance such a situation were ever to arise it could of 
course be met by the President making a
different 
proposal, and no express provision need, it seems to 
us, be made in that behalf. 
The foregoing applies mutatis mutandis to the 
appointment of the judges of the Supreme Court, and 
article 103(2) may also be suitably modified ..... "
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
24. The significance of this Memorandum cannot be A 
overemphasized and it can be summarized as follows: (1) The 
independence and integrity of the judiciary was of the highest 
importance. (2) A tendency had developed in the executive to 
whittle down the power and authority of the judiciary. (3) It was 
noted that recommendations for the appointment of a judge of B 
a High Court originate from the Chief Justice of the High Court. 
Occasionally, such recommendations are suppressed by the 
executive at the provincial level. It was proposed that 
recommendations made by the Chief Justice ought to be 
forwarded directly to the President for being processed so C 
that the political executive at the provincial level cannot 
suppress it. (4) It was acknowledged that the political executive 
at the provincial level also makes recommendations (though 
not always on merits) directly to the Central Government, without D 
the knowledge of the Chief Justice of the High Court. Such 
recommendations ought to be accepted only with the 
concurrence of the Chief Justice of India, and this should be 
taken care of in the Draft Constitution. (5) It was acknowledged 
that a recommendation for the appointment of a judge of a 
E 
High Court (or the Supreme Court) could be made by the 
President (personally - 'Both are officers of the highest 
responsibility .... .'). This would normally be accepted by the 
Chief
Justice of India and therefore no provision for the 
concurrence of the Chief Justice of India was required to be 
F 
made in this regard in the Draft Constitution. However, if the 
Chief Justice of India were to refuse to accept the 
recommendation, the situation could be met by the President 
making a different proposal. This is because, it was noted, 
that 'a convention now exists that such appointments should G 
be made after referring the matter to the Chief Justice of India 
and obtaining his concurrence.' 
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Amendments to Article 61 and Article 62 of the Draft 
Constitution 
25. The Minorities Sub-Committee and the Advisory 
Committee on Fundamental Rights, Minorities and Tribal and 
8 
Excluded Areas adverted to and considered Article 61 and 
Article 62 (amongst others) of the Draft Constitution. Article 
61 and Article 62 of the Draft Constitution pertain to the Council 
of Ministers to aid and advice the President and other 
provisions as to Ministers. In this regard, Shiva Rao mentions 
c in his excellent effort 'The Framing of India's Constitution -A 
Study' as follows: 
· 
D 
E 
F 
G 
H 
"There was considerable discussion in the Minorities 
Sub-Committee and in the Advisory Committee on 
Fundamental Rights, Minorities and Tribal and Excluded 
Areas on the need for the inclusion of minority 
representatives in the Union and State Cabinets ..... They 
considered that it would be sufficient if, following the 
precedent furnished by the Government of India Act of 
1935, an Instrument of Instructions was drawn up, to be 
included as a schedule to the Constitution, enjoining the 
Governors and the President as far as practicable to 
include members of the minority communities in their 
Ministries. In the Draft Constitution of February 1948, however, 
an Instrument of Instructions for this purpose was drawn 
. up only for Governors but not for the President. Possibly 
in order to rectify this omission, the Drafting Committee
decided, on further consideration of the articles relating 
to the Council of Ministers, that an Instrument of 
Instructions for the President would also be necessary"12 
26.Apparently, pursuant to this, the Drafting Committee 
gave a notice in October 1948 of an amendment to Article 62 
proposing to add the following clause: 
12 Page 373-374
SUPREME COURT ADVOCATES-ON-RECORD 
645 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
"In the choice of his Ministers and the exercise of his A 
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 otherwise than in accordance with such 
B 
Instructions." 
27. Schedule Ill-A incorporated the Instrument of 
tnstructions to the President and this is important and it reads 
as follows: 
c 
New Schedule 111-A 
[Article 62(5a)] 
INSTRUCTIONS TO THE PRESIDENT 
1. In these instructions, unless the context otherwise D 
requires, the term "President" shall include every person 
for the time being discharging the functions, of, or acting 
as, the President according to the provisions of this 
Constitution. 
E 
2. 
xxx 
3. 
xxx 
4. 
(1) The President shall make rules for the 
constitution of an Advisory Board consisting of not less 
F 
than fifteen members of.the Houses of Parliament to be 
elected by both Houses in accordance with the system 
of proportional representation by means of the single 
transferable vote for the purpose of advising the 
President in the matter of making certain appointments G 
under this Constitution and shall take all necessary steps 
for the due constitution of such Board as soon as may 
be after the commencement of this Constitution. 
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(2) Such rules shall provide that the Leader of the 
Opposition, if any, in either House of Parliament shall, if 
he is not elected to the Advisory Board, be nominated to 
the Board by the President. 
(3) Such rules shall also define the terms of office of the 
members of the Advisory Board and its procedure and 
may contain such ancillary provisions as the President 
may consider necessary. 
5. (1) 
In making any appointment of-
(a) the Chief Justice of India or any other judge of the 
Supreme Court; 
(b) the Chief Justice or any other judge of a High Court; 
(c) an Ambassador in a foreign State; 
(d) the Auditor-General of India; 
(e) the Chairman or any other member of the Union Public 
Service Commission; 
(f) any member of the Commission to superintend, direct 
and control all elections to Parliament and elections to 
the offices of President and Vice-President, 
The President shall consult the Advisory Board 
constituted under paragraph 4. 
(2) The President shall also consult the Advisory Board 
so constituted in making appointment by virtue of the 
powers conferred on him by this Constitution to any other 
office under the Government of India or the Government 
of a State other than the office of Governor of a State, if 
Parliament by resolutions passed by both Houses 
recommend to the President that the Advisory Board shall 
be consulted in making appointment to such office. 
6. (1) In making
appointment of judges of the Supreme
SUPREME COURT ADVOCATES-ON-RECORD 
647 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Court and of the High Courts, the President shall before A 
obtaining the advice of the Advisory Board shall follow 
the following procedure: 
(a) In the case of appointment of the Chief Justice of India, 
he shall consult the judges of the Supreme Court and the 
B 
Chief Justices of the High Courts within the territory of 
1.ndia except the States for Jhe time being specified in 
Part Ill of the First Schedule. 
(b) In the case of appointment of a judge of the Supreme 
Court other than the Chief Justice of India, he shall consult C 
the Chief Justice of India and the other judges of the 
Supreme Court and also the Chief Justices of the High 
Courts within the territory of India except the States for 
the time being specified in Part Ill of the First Schedule. 
D 
(c) In the case of appointment of the Chief Justice of a 
High Court, he shall consult the Governor of the State in 
which the High Court has its principal seat, and the Chief 
Justice of India. 
(d) In the case of appointment of a judge of a High Court 
E 
other than the Chief Justice, he shall consult the Governor 
of the State in which the High Court has its principal seat, 
the Chief Justice of India and the Chief Justice of the 
High Court. 
(2) The President shall place the recommendations of 
the authorities consulted by him under sub-paragraph ( 1) 
before the Advisory Board at the time of obtaining the 
advice of that Board
with regard to any appointment 
F 
referred to in that sub-paragraph. 
G 
7.xxx 
8.xxx"13 
"The Framing of India's Constitution - Select Documents, Volume -IV, Page 
84. 
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28. It is significant that the Instrument of Instructions also 
kept the executive completely out of the picture in so far as the 
appointment of judges is concerned. No one from the executive 
was to be consulted or involved in the appointment process. 
8 
29. The Drafting Committee also proposed, apparently 
in view of the insertion of Schedule Ill-A that Article 103(2) of 
the Draft Constitution (relating to the appointment of judges of 
the Supreme Court and corresponding to Article 124(2) of the 
Constitution of lndia)14 be modified as follows: 
C 
"(i) the words "after consultation with such of the judges 
of the Supreme Court and of the High Courts in the States 
as may be necessary for the purpose" be deleted in 
clause (2); and 
D · 
(ii) the first proviso to clause (2) be deleted ."15 
30. In other words, the President was not expected to 
consult the Council of Ministers at all or to act on its advice but 
was to consult the Chief Justice oflndia and other judges and 
then take the advice of the Advisory Board. This was a mixture 
E of the Sapru Committee recommendation of the Head of State 
(or President as the high office came to be designated) acting 
on his/her own and yet the President not having 'unfettered 
discretion' in the appointment of judges. 
F 
31. All the proposals, including those given by the 
Conference of Chief Justices, the Minorities Sub-Committee 
and the Advisory Committee on Fundamental
Rights, Minorities 
and Tribal and Excluded Areas, were considered by the Drafting 
14 Article 103(2) of the Draft Constitution reads: "Every judge of the Supreme 
Court shall be appointed by the President by warrant under his hand and 
G 
seal after consultation with such of the judges of the Supreme Court and of 
the High Courts in the States as may be necessary for the purpose and shall 
hold office until he 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." 
15 The Framing of India's Constitution - Select Documents, Volume - IV, 
H 
Page 147.
SUPREME COURT ADVOCATES-ON-RECORD 
649 
ASSOCIATION v. U.0.1..[MADAN B. LOKUR, J.] 
Committee and on 4th November, 1948 the second draft of the A 
Constitution was introduced in the Constituent Assembly by 
Dr. B.R. Ambedkar, Chairman of the Drafting Committee. 
However, the decision of the Drafting Committee taken in 
October, 1948 was not incorporated in the Draft Constitution. 
Therefore, Dr. Ambedkar moved an amendment in the 
B 
Constituent Assembly on 31st December, 1948 to insert clause 
(5)a in Article 62 of the Draft Constitution. The amendment 
proposed by Dr. Ambedkar reads as follows: 
"That after clause 5 of Article 62 the following new clause c 
be inserted:-
(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 D 
President shall not be called in question on the ground 
that it was done otherwise than in accordance with such 
instructions." 
32. The amendment was discussed briefly and adopted 
E · 
by the Constituent Assembly on the same day. Although the 
decision of the Drafting Committee was to insert clause (5)a 
in Article 62 of the Draft Constitution and simultaneously delete 
a part of clause (2) of Article 103 of the Draft Constitution, the 
amendment relating to the deletion of clause (2) of Article 103 F 
of the Draft Constitution was apparently not moved by Dr. 
Ambedkar. It
is not clear why. As far as the Instrument of 
Instructions is concerned, it is pointed out by Granville Austin 
that it was not actually, but implicitly, adopted by the Constituent 
Assembly. 16 
G 
33. A combined reading of the views of the Drafting 
Committee read with the Instrument of Instructions and the 
" Indian Constitution - Cornerstone of a Nation by Granville Austin at page 
126, footnote 39 
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insertion of clause (5)a in Article 62 of the Draft Constitution 
indicates that the thinking at the time was that in the matter of 
appointment of judges the President was to act in his/her 
individual capacity. This is very significant otherwise there was 
absolutely no need for an Instrument of Instructions or an 
B Advisory Board to be set up or for the complete exclusion of 
the Council of Ministers or the executive in the appointment of 
judges. However, this thinking was later on given up. 
Constituent Assembly Debates 
C 
34. This historical background has an impact on 
understanding the subsequent debate in the Constituent 
Assembly that took place on 23rd and 24th May, 1949 when 
Article 103 of the Draft Constitution was considered and 
debated in the Constituent Assembly. It needs to be· 
0 . emphasized at this stage that when the debate took place on 
23'd and 24th May, 1949 it~as in the backdrop of the fact that 
clause (5)a had already been inserted in Article 62 of the Draft 
Constitution to the effect that in respect of several matters, 
including the appointment of judges, the President would act 
E 
in his/her individual capacity and the Council of Ministers was 
not even in the picture. The debate will be referred to a little 
later. 
35. After a few months, on 11th October, 1949 the 
F 
President of the Constituent Assembly was informed by Mr. 
T.T. Krishnamachari that Schedule 111-Ais not being moved and
that it could be taken out of the list. He also moved for the 
deletion of Schedule IV from the Draft Constitution. Explaining 
the move to delete Schedule IV from the Draft Constitution it 
G was stated that the matter should be left entirely to convention 
rather than be put in the body of the Constitution as a Schedule 
in the shape of an Instrument of Instructions and that there is a 
fairly large volume of opinion which favours that idea. 
H 
36. Dr. Ambedkar added as follows:
SUPREME COURT ADVOCATES-ON-RECORD 
651 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
"Sir, with regard to the Instrument of Instructions, there A 
are two points which have to be borne in mind. The 
purpose of the Instrument of Instructions as was originally 
devised in the British Constitution for the Government of 
the colonies was to give certain directions to the head of 
the States as to how they should exercise their B 
discretionary powers that were vested in them. Now the 
Instrument of Instructions were effective in so far as the 
particular Governor or Viceroy to whom these instructions 
were given was subject to the authority of the Secretary 
of State. If in any particular matter which was of a serious C 
character, the Governor for instance, persistently refused 
to carry out the Instrument of Instructions issued to him, it 
was open to the Secretary of State to remove him, and 
appoint another and thereby secure the effective carrying D 
"out of the Instrument of Instructions. So far as our 
Constitution is concerned, there is no functionary created 
by it who can see that these Instruments of Instructions is 
carried out faithfully by the Governor. 
Secondly, the discretion which we are going to leave with 
E 
the Governor under this Constitution is very very meagre. 
He has hardly any discretion at all., He has to act on the 
advice of the Prime Minister in the matter of the selection 
of Members of the Cabinet. He has also to act on the 
advice of the Prime
Minister and his Ministers of State 
F 
with respect to any particular executive or legislative 
action that he takes. That being so, supposing the Prime 
Minister does not propose, for any special reason or 
circumstances, to include in his Cabinet members of the 
minority community, there is nothing which the Governor G 
can do, notwithstanding the fact that we shall be charging 
him through this particular Instrument of Instructions to 
act in a particular manner. It is therefore felt, having regard 
under the Constitution who can enforce this, that no such 
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directions should be given. They are useless and can 
serve no particular purpose. Therefore, it was felt in the 
circumstances it is not desirable to have such Instrument 
of Instructions which really can be effective in a different 
set of circumstances which can by no stretch of 
B 
imagination be deemed to exist after the new Constitution 
comes into existence. That is the principal reason why it 
is felt that this Instrument of Instructions is undesirable."17 
37. On the basis of the above discussion, Schedule IV 
c to the Draft Constitution was deleted and a motion to that effect 
was adopted. 
38. Thereafter on 141h October, 1949 an ~mendment was 
moved by Mr. T.T. Krishnamachari to omit clause (5)a of Article 
62 of the Draft Constitution. It was stated that since Schedule 
D 
lll~A was not moved, this clause becomes superfluous and 
therefore its omission was moved. The amendment to omit 
clause (5)a of Article 62 of the Draft Constitution was adopted. 
In support of this, Dr. Ambedkar [perhaps the main advocate 
of clause (5)a] had this to say, while emphasizing constitutional 
E obligations and constitutional conventions: 
"Every Constitution, so far as it r.elates to what we call 
parliamentary democracy, requires three different organs 
of the State, the executive, the judiciary and the 
F 
legislature. I have not anywhere found in any Constitution 
a provision saying that the executive shall obey the 
legislature,
nor have I found anywhere in any Constitution 
a provision that the executive shall obey the judiciary. 
Nowhere is such a provision to be found. That is because 
G 
it is generally understood that the provisions of the 
Constitution are binding upon the different organs of the 
State. Consequently, it is to be presumed that those who 
work the Constitution, those who compose the 
H 
17 http://parliamentofindia.nic.in/ls/debates/vol1 Op4 him
SUPREME COURT ADVOCATES-ON-RECORD 
653 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Legislature and those who compose the executive and 
A 
the judiciary know their functions, their limitations and their 
duties. It is therefore to be expected that if the executive 
is honest in working the Constitution, then the executive 
is bound to obey the Legislature without any kind of 
compulsory obligation laid down in the Constitution. 
B 
Similarly, if the executive is honest in working the 
Constitution, it must act in accordance with the judicial 
decisions given by the Supreme Court. Therefore my 
submission is that this is a matter of one organ of the c 
State acting within its own limitations and obeying the 
supremacy of the other organs of the State. In so far as 
the Constitution gives a supremacy to that is a matter of 
constitutional obligation which is implicit in the 
Constitution itself. 
D 
I remember, Sir, that you raised this question and I looked 
it up and I had with me two decisions of the King's Bench 
Division which I wanted one day to bring here and refer 
in the House so as to make the point quite clear. But I am 
sorry I had no notice today of this point being raised. But E 
this is the answer to the question that has been raised. 
No constitutional Government can function in any country 
unless any particular constitutional authority remembers 
the fact that its authority is limited by the Constitution and 
F 
that if there is any authority created by the
Constitution 
which has to decide between that particular authority and 
any other authority, then the decision of that authority shall 
be binding upon any other organ. That is the sanction 
which this Constitution gives in order to see that the G 
President shall follow the advice of his Ministers, that the 
executive shall not exceed in its executive authority the 
law made by Parliament and that the executive shall not 
give its own interpretation of the law which is in conflict 
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with the interpretation of the judicial organ created by 
the Constitution. 
Shri H V. Karnath : If in any particular case the President 
does not act upon the advice of his Council of Ministers, 
will that be tantamount to a violation of the Constitution 
and will he be liable to impeachment? 
. The Honourable Dr. B. R. Ambedkar: There is not the 
slightest doubt about it."18 
C 
Referring tothis extremely important exposition, Granville 
Austin concludes: 
"From this, one is forced to deduce thatAmbedkar and 
the members of the Drafting Committee, perhaps under 
pressure from Nehru or Patel, had come to the conclusion 
D 
that the written provisions of a non-justiciable Instrument 
of Instructions and the tacit conventions of cabinet 
government had equal value: both were legally 
unenforceable, but both provided a mechanism by which 
the legislature could control the Executive; and of the two, 
E 
conventions were the tidiest and the simplest way of 
limiting Executive authority."19 
Transposing this to the relationship between the Judiciary 
and the Executive, it is quite dear that Dr. Ambedkar and indeed 
F the Constituent Assembly was of the view that constitutional 
obligations and constitutional conventions must be respected, 
unwritten though they may be. And, one of these constitutional 
obligations and constitutional conventions is that the view of 
the judiciary must be respected by the executive not only with 
G
respect to judicial decisions but also in other matters that 
directly impact on the independence of the judiciary. 
" http'lipar!jamentofindja.nic jn/lsldebates/vol1 Op?c.htm 
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19 Indian Constitution - Cornerstone of a Nation, pages 138-139
SUPREME COURT ADVOCATES-ON-RECORD 
655 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
Debates on 23'd and 241h May, 1949 
A 
39. It is important to appreciate that the Constituent 
Assembly Debates (for short the CAD) to which our attention 
was drawn refer to the appointment of a judge of the Supreme 
Court and not specifically to the appointment of a judge of a 
8 
High Court. But the sum and substance of the debate is equally 
applicable to the appointment of a judge of a High Court. 
40. On 23'd and 24th May, 1949 three significant 
amendments to Article 103(2) of the Draft Constitution relating 
to the appointment of judges of the Supreme Court were C 
considered in the Constituent Assembly. The first was moved 
. by Prof. K.T. Shah (Bihar: General) who suggested that the 
appointment of a judge of the Supreme Court should be after 
consultation with the Council of State. This suggestion was 
.intended to avoid political influence, party maneuvers and 
D 
··. pressures in the appointment process. The second was moved 
. by Prof. Shibban Lal Saksena (United Provinces: General) who 
suggested that the appointment-Of the Chief Justice of India 
be subject to confirmation by two~thirds majority of the total 
E 
number of Members of Parliament assembled in a joint 
session of both the Houses of Parliament. The third was moved 
by Mr. B. Pocker Sahib (Madras: Muslim} who suggested that 
. the appointment of a judge of the Supreme Court should have 
··the concurrence of the
Chief Justice of India. In support of his 
F 
· amendment Mr. B. Pocker Sahib extensively referred to and 
relied on: the Merhoraridum submitted by the Conference of 
Chief Justices.As he put it: 
"I submit, Sir, the views expressed by the Federal Court 
and the Chief Justice of the .various High Courts G 
assembled in.conference are entitled to the highest 
weight befor-e this Assembly, before this provision is 
. passed. It is of the highest importance that the Judges of 
the· Supreme Court should not be made to feel that their 
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existence or their appointment is dependent upon political 
considerations or on the will of the political party. 
Therefore, it is essential that there should be sufficient 
safeguards against political influence being brought to 
bear on such appointments. Of course, if a Judge owes 
his appointment to a political party, certainly in the course 
of his career as a Judge, also as an ordinary human 
being, he will certainly be bound to have some 
consideration for the political views of the authority that 
has appointed him. That the Judges should be above all 
these political considerations cannot be denied. 
Therefore, I submit that one of the chief conditions 
mentioned in the procedure laid down, that is the 
concurrence of the Chief Justice of India in the 
appointment of the Judges of the Supreme Court, must 
be fulfilled. This has been insisted upon in this memo. 
and that is a very salutary principle which should be 
accepted by this House. I submit, Sir, that it is of the 
highest importance that the President must not only 
consult the Chief Justice of India, but his concurrence 
should be obtained before his colleagues, that is the 
Judges of the Supreme Court, are appointed. It has been 
very emphatically stated in this memo. that it is absolutely 
necessary to keep them above political influences. No 
doubt, it is said in this procedure that the Governor of the 
State also may be consulted;
but that is a matter of minor 
importance. It is likely that the Governor may also have 
some political inclinations. Therefore, my amendment 
has omitted the name of the Governor. That the judiciary 
should be above all political parties and above all political 
consideration cannot be denied. I do not want to enter 
into the controversy at present, which was debated 
yesterday, as to the necessity for the indepen<;Jence of 
the judiciary so far as the executive is concerned. It is a
SUPREME COURT ADVOCATES-ON-RECORD 
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matter which should receive very serious consideration 
A 
at the hands of this House and I hope the Honourable the 
Law Minister will also pay serious attention to this aspect 
of the question, particularly in view of the fact that this 
recommendation has bee.n ma<!e by the Federal Court 
and the Chief Justice of the other High Court assembled B 
in conference. I do not think, Sir, that there can be any 
higher authority on this subject than this conference of 
the Federal Court and the Chief Justices of the various 
High Courts in lndia."20 
Mr. MahboobAli Baig Sahib (Madras: Muslim) moved a 
somewhat similar amendment. The reason given by Mr. 
Mahboob Ali Baig Sahib was: 
c 
"Under our proposed constitution the President would 
be the constitutional Head of the executive. And the 
D 
constitution envisages what is called a parliamentary 
democracy. So the President would be guided by the 
Prime Minister or the Council of Ministers who are 
necessarily drawn from a political party. Therefore the 
decision of the President would be necessarily influenced 
E 
by party considerations. It is therefore necessary that the 
concurrence of the Chief Justice is made a pre-requisite 
for the appointment of a Judge of the Supreme Court in 
order to guard ourselves against party influences that may F 
be brought to bear upon the appointment of Ju,Pges."21 
41. It is clear that both these Hon'ble
Members made 
the 'concurrence' suggestion since they desired the 
appointment of a judge of the Supreme Court to be free from 
any sort of political or executive interference. It appears that G 
these amendments were moved unmindful of the insertion of 
clause (5)a in Article 62 ofthe Draft Constitution and Schedule 
Ill-A thereto. 
20 http'/lparljamentofindia njc jo/ls/debates/yo!Bp?a htm 
21 http://parliamentofindia nic in/ls/debates/vol8p?a htm 
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42. Be that as it may, there appears to have been some 
discordance in the views and perception of different persons 
on the exact role of the President in the process of appointment 
of judges. Is the Presi2ent expected to act on the advice of the 
Council of Ministers or in his/her personal capacity? 
43. One view, as expressed by Dr. Ambedkar was that 
the President would be guided by the Council of Ministers. 
The other view or perception was that with the insertion of 
clause (5)a in Article 62 of the Draft Constitution and Schedule 
c 
111-A the President was to act in his/her individual capacity and 
not be guided by the Council of Ministers since the executive 
was to be kept completely out of the appointment process. It 
is not clear which of the two views found favour with Mr. B. 
Packer Sahib and Mr. MahboobAli Baig Sahib- but both were 
D clear that the President could be put under political or party 
pressure in the recommendation ofa person for appointment 
and that this should be avoided and the pressure could be 
negated by the requirement of the concurrence of the Chief 
E 
Justice of India, an impartial person. 
44. But what is more significant is that Mr. B. Packer 
Sahib and Mr. Mahboob Ali Baig Sahib adverted only to a 
recommendation for the appointment of a judge by the 
President - hence the necessity of concurrence by the Chief 
F 
Justice of India. They did not, quite obviously, advert to the
recommendation for the appointment of a judge by the Chief 
Justice of India. 
45. It is in this background of divergence of perceptions 
that the speech of Dr. Ambedkar on 241h May, 1949 should be 
G appreciated. Replying to the debate, Dr.Ambedkar stated: 
"Now, Sir, with regard to the numerous amendments that 
have been moved, to this article, there are really three 
issues that have been raised. The first is, how are the 
H 
. Judges of the Supreme Court to be appointed? Now
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
grouping the different amendments which are related to A 
this particular matter, I find three different proposals. The 
first proposal is that the Judges of the Supreme Court 
should be appointed with the concurrence of the Chief 
Justice. That is one view. The other view is that the 
appointments made by the President should be subject B 
to the confirmation of two-thirds vote by Parliament; and 
the third suggestion is that they should be appointed frr . · 
consultation with the. Council of States. 
· · With regard to this matter, I quite agree that the point c 
raised is of the greatest importance. There can be no 
difference of opinion in the House that our judiciary must 
both be independent of the executive and must also be 
competent in itself. And the question is how these two 
objects could be secured. There are two in other D 
countries. In Great Britain the appointments are made 
by the Crown, without any kind of limitation whatsoever, 
which means by the executive of the day. There is the 
opposite system in the United States where, for instance, 
officers of the Supreme Court as well as other officers of E 
the State shall be made [appointed] only with the · 
·concurrence of the Senate in the United States. It seems 
to me in the circumstances in which we live today, where 
the sense of responsibility has not grown to the same 
extent to which we find it in the United States, it
would be 
F 
dangerous to leave the appointments to be made by the 
President, without any kind of reservation or limitation, 
that is to say, merely on the advice of the executive of the 
day. Similarly, it seems to me that to make every 
appointment which the executive wishes to make subject G 
to the concurrence of the Legislature is also not a very 
suitable provision. Apart from its being cumbrous, it also 
involves the possibility of the appointment being 
influenced by political pressure and political H
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A 
considerations. The draft article, therefore, steers a 
middle course. It does not make the President the 
supreme and the absolute authority in the matter of 
making appointments. It does not also import the 
influence of the Legislature. The provision in the article 
B 
is that there should be consultation of persons who are 
ex hypothesi, well qualified to give proper advice in 
matters of this sort, and my judgment is that this sort of 
provision may be regarded as sufficient for the moment. 
c 
With regard to the question of the concurrence of the Chief 
Justice, it seems to me that those who advocate that 
proposition seem to rely implicitly both on the impartiality 
of the Chief Justice and the soundness of his judgment. 
I personally feel no doubt that the Chief Justice is a very 
D 
eminent person. But after all the Chief Justice is a man 
with all the failings, all the sentiments and all the 
prejudices which we as common people have; and I think, 
to allow the Chief Justice practically a veto upon the 
appointment of judges is really to transfer the authority to 
E 
the Chief Justice which we are not prepared to vest in 
the President or the Government of the day. I, therefore, 
think that is also a dangerous proposition."22 
46. Dr. Ambedkar was quite clear that there could be no 
F difference of opinion that the judiciary should be independent 
of the executive, yet competent. He was of the view that it 
would be
'dangerous' to leave the appointment of judges to 
the President without any reservation or limitation, that is to 
say, merely on the advice of the executive of the day. Dr. 
G Ambedkar seems to have lost sight of the existence of the 
Instrument of Instructions (or it was 'given up' by him) since 
that document mentioned the advice of the Advisory Board 
and not the executive and also that that document enabled the 
H 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
President to act on his/her own, and not on the advice of the A 
executive. 
4 7. If this dichotomy between the role of the President 
and the executive and the binding or non-binding effect of the 
advice of the executive on the President is appreciated, the 
8 
views of Dr. Ambedkar become very clear. He was quite clear 
that the executive was not to have primacy in the appointment 
process nor did he want the President to have unfettered 
discretion to accept or reject the advice of the executive or act 
or. his/her own. As far as the concurrence of the Legislature is c 
concerned, Dr. Ambedkar felt that the process would be 
cumbrous with the possibility of political pressure and 
considerations. It is in this context that Dr. Ambedkar said that 
he was steering a middle course and was not prepared to 
grant a veto to the President (rejecting the advice of the D 
executive or acting on his/her own) in the appointment of 
judges, executive primacy having already been rejected by 
him. Under the circumstances, he felt that 'this sort of provision 
[consultation with the Chief Justice of India] may be regarded 
as sufficient for the moment.' 
E 
48. With regard to the 'concurrence' of the Chief Justice 
of India (as against consultation with the Chief Justice of India) 
in the appointment of a judge of the Supreme Court, Dr. 
Ambedkar was of the opinion that the Chief Justice, despite 
F
his eminence, had all the failings, sentiments and prejudices 
of common people and to confer on him a power of veto, which 
is not vested in the President or the Government of the day 
(that is the executive), would be a 'dangerous proposition'. 
49. Dr. Ambedkar was of the view that neither the G 
President nor the Government of the day (the executive) nor 
the Chief Justice of India should have the final word in the matter 
of the appointment of judges. Who then would have the final 
say in the event of a difference of opinion between the President 
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A or the Government of the day or the Chief Justice of India on 
the appointment of a particular person as a judge? Dr. 
Ambedkar did not directly address this question since he did 
not visualize a stalemate arising in this regard. 
8 
50. A small diversion - apart from the reasons already 
mentioned for keeping the executive out of the decision-taking 
process in the appointment of judges, it would be of interest to 
know that, on a different topic altogether, while replying to the 
debate 'on acceptance of office by members of the judiciary 
c after retirement' Dr. Ambedkar observed that the judiciary is 
very rarely engaged in deciding issues between citizens and 
the Government. He said: 
D 
E 
"The judiciary decides cases in which the Government 
has, if at all, the remotest interest, in fact no interest at 
all. The judiciary is engaged in deciding the issue 
between citizens and very rarely between citizens and 
the Government. Consequently the chances of influencing 
the conduct of a member of the judiciary by the 
Government are very remote, and my personal view, 
therefore, is that the provisions which are applied to the 
Federal Public Services.Commission have no place so 
far as the judiciary is concerned."23 
51. Times have changed dramatically since then and far 
F from disputes 'very rarely' arising between citizens and the 
Government, today the Government is unashamedly the 
biggest litigant in the country. It
has been noticed in Supreme 
Court Advocates on Record Association v. Union of 
/ndia24 that: 
G 
"No one can deny that the State in the present day has 
become the major litigant and the superior courts 
particularly the Supreme Court, have become centres 
23 htH:rUparliamentofindia nic jn/lsldebates/vol8p7b htm 
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24 (1993) 4 sec 441 (Nine Judges Bench)
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
for turbulent controversies, some of which with a flavour A 
of political repercussions and the Courts have to face 
tempest and storm because their vitality is a national 
imperative. In such circumstances, therefore, can the 
Government, namely, the major litigant be justified in 
enjoying absolute authority in nominating and appointing 
B 
its arbitrators. The answer would be in the negative. If 
such a process is allowed to continue, the independence 
. of judiciary in the long run will sink without any trace."25 
52. Given this fact situation, since there was this reason c 
in 1949 to insulate the judieiary and the appointment process 
from the direct or indirect influence ofthe executive and political 
or party pressures, there is a.II the more reason to do so today 
ifthe independence of the judiciary is to be maintained. 
53. In England too the executive is the 'most frequent D 
litigator' and the position seems to be no better than in our 
country. In a lecture on Judicial Independence, Lord Phillips26 
had this to say: 
"In modern society the individual citizen is subject to 
E 
controls imposed by the executive in respect of almost 
every aspect of life. The authority to impose most of those 
controls comes, directly or indirectly, from the legislature. 
The citizen must be able to challenge the legitimacy of 
executive action before an independent judiciary. 
F 
Because it is the
executive that exercises the power of 
the State and because it is the executive, in one form or 
another, that is the most frequent litigator in the courts, it 
is from executive pressure or influence that judges 
require particularly to be protected."27 
G 
25 Paragraph 207 (Justice Pandian). A similar view was expressed by Justice 
Kuldip Singh in paragraph 327. 
26 Former President of the Supreme Court of the United Kingdom and Lord 
Chief Justice of England and Wales 
27 https:/(www.ucl ac uk/constitution-unit/eventsOudjcjal-jndependence-
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A 
Summation 
54. The discussion leading up to the Constituent 
Assembly Debates and relating to the appointment of judges 
clearly brings out that: 
B 
(1) The independence of the judiciary was unflinchingly 
accepted by all policy and decision makers; 
(2) The appointment of judges of the Supreme Court and 
the High Courts was to be through a consultative process 
C between the President and the Chief Justice of India, neither 
of whom had unfettered discretion in the matter; 
(3) In any event, the political executive had no role or a 
very little role to play in the decision-taking process. 
Notwithstanding this, the political executive did interfere in the 
D appointment process as evidenced by the Memorandum 
prepared in the Conference of Chief Justices by, inter alia, 
recommending persons for appointment as j\,ldges of the High 
Court. Resultantly, the appointment of judges to the High Courts 
was not always on merit and sometimes without the 
E 
recommendation of the Chief Justice of the High Court; 
(4) A constitutional convention existed that the 
appointment of judges should be made in conformity with the 
views of the Chief Justice of India; 
F 
(5) The proposal for the appointment of a judge of the 
Supreme Court or a High Court could originate from the 
President (although it never did} or the Chief Justice of India 
and regardless of the origin, it would normally be accepted. 
However, the possibility of the
President giving in to political 
G or party pressures was not outside the realm of imagination. 
(6) Historically, the Chief Justice of India was always 
consulted in the matter of appointment of judges, and 
conventionally his concurrence was always taken regardless 
H of whether a recommendation for appointment originated from
SUPREME COURT ADVOCATES-ON-RECORD 
665 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the Chief Justice of the High Court or the political executive. It A 
is in this light that the discussion in the Constituent Assembly 
on the issue of appointment of judges to the Supreme Court 
and the High Courts deserves to be appreciated. 
(7) It remained a grey area whether in the appointment B 
of judges, the President was expected to act on his/her own or 
on the advice of the political executive. 
Views of the Law Commission of India 
55. The issue of the appointment of judges of the 
Supreme Court and the High Courts was first addressed, after C 
Independence, in the 14th Report of the Law Commission of 
India (for short the LCI), then in the 8Qth Report and finally in the 
121st Report. (A reference was made in the 2141h Report and 
the 23Qth Report but they are of no immediate consequence). 
D 
The issue also came to be addressed in S.P. Gupta v. Union 
of Jndia 28 and in Subhash Sharma v. Union of Jndia. 29 It 
was also the subject matter of three Constitution amendment 
Bills and two other pronouncements of this Court rendered by 
larger Benches. This is mentioned only to highlight the 
E 
complexity of the issue and the constant search for some 
stability and certainty in the appointment process in relation to 
the independence of the judiciary. It has been said with regard 
to the selection of judges in the United States, and this would 
equally apply to our country: 
F 
"It
is fairly certain that no single subject has consumed 
as many pages in law reviews and law-related 
publications over the past 50 years as the subject of 
judicial selection."30 
{a) 141h Report- 26.9.1958 
28 1981 (Supp) SCC 87 (Seven Judges Bench) 
"1991 supp (1) sec 574 
30 Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection 
Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting Philip Dubois). 
G 
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A 
. Appointment of judges of the Supreme Court 
56. Within less than a decade of the promulgation of the 
Constitution, the process of appointment of judges of the 
Supreme Court and the High Courts came in for sharp criticism· 
8 
from the LCI. Chapter 5 and Chapter 6 of the 14th Report of 
the LCI relating, inter alia, to the appointment of judges to the 
Supreme ~ourt and judges to the High Courts respectively 
. makes for some sad reading, more particularly since the 
Attorney-General for India was the Chair of the LCI. 31 It must 
C 
be noted here that the LCI travelled through the length and 
breadth of the country for about one year and examined as 
many as 4 73 witnesses from a cross-section of society before 
giving its Report. It also adopted a novel procedure of co-opting 
two members from the States that were visjted so a:s to 
o understand the local problems. The monumental and 
~uthoritative work can onlybe admired. 
57. The LCI observed that the Constitution endeavorecj 
to putjudges of the Supreme Court 'above executive control' .. 
E It very specifically acknowledged the importance of . 
safeguarding the independence of the judiciary and obser,ved . 
that 'It.is obvious that the selection of the Judges constituting a. 
Court of such pivotal importance. to the progress of the nation 
must be a responsibifity to be exercised with greafcare.'32 
F · 
. ?8 .. Thereafter three central issue~ were adverted to - .
(1)Communal and regional considerations had prevailed in · 
·.·making the selection of-judges. (2) The general impression·. 
was that executive influence was exerted now and again from 
the highest quarters in respect of some appointments to-the· 
G 
B~nch. (3) The best talent among.the judges of the High Courts 
did not find its way to the Supreme Court . 
H 
. 31 The Report is titled 'Reforms of the Judicial Administration' 
32 Chapter 5 paragraph 5
SUPREME COURT ADVOCATES-ON-RECORD 
667 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
59. The Report said: 
A 
"It is widely felt that communal and regional considerations 
have prevailed in making the selection of the Judges. 
The idea seems to have gained ground that the 
component States of India should have, as it were, 
B 
representation on the Court. Though we call ourselves a 
secular State, ideas of communal representation, which 
were viciously planted in our body politic by the British, 
have not entirely lost their influence. What perhaps is 
still more to be regretted is the general impression, that c 
now and again executive influence exerted from the 
highest quarters has been responsible for some 
appointments to the Bench. It is undoubtedly true, that 
the best talent among the Judges of the High Courts has 
not always found its way to the Supreme Court. This has D 
prevented the Court from being looked upon by t.he 
subordinate Courts and the public generally with that 
respect and indeed, reverence to which it by its status 
entitled."33 
60. On the basis of its findings, the LCI recommended, 
E 
inter alia, that 'communal and regional considerations shouh;l 
play no part in the making of appointments to the Supreme 
Court.' However, the LCI did not proffer any solution to the 
vexed issue of making more satisfactory appointments to the 
F 
Supreme Court. 
Appointment of judges of the High Courts . 
61: Similarly, Chapter 6 of the Report concerning the
appointment of judges to the High Courts makes for equally 
sad reading. The inadequacies in the appointments made G 
were pointed out as: (1) The selections have. been 
unsatisfactory and induced by executive influence. (2) There 
33 Chapter 5 p;;iragraph 6 
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A 
is no recognizable principle for making the appointments and 
considerations of political expediency or regional or communal 
sentiments have played a role. (3) Merit has been ignored in 
making appointments. 
B 
62. It was said that these inadequacies were well founded 
and there was acute public dissatisfaction with the 
appointments made: 
c 
D 
E 
F 
G 
H 
"We have visited all the High Court centres and on all 
hands we have heard bitter and reviling criticism about 
the appointments made to High Court judiciary give in 
recent years. This criticism has been made by Supreme 
Court Judges, High Court Judges, Reti~ed Judges, Public 
Prosecutors numerous representatives, associations of 
the Bar, principals and professors of Law Colleges and 
very responsible members of the legal profession all over 
the country. One of the State Governments had to admit 
that some of the selections did not seem to be good and 
that careful scrutiny was necessary. The almost universal 
chorus of comment is that the selections are 
unsatisfactory and that they have been induced by 
executive influence. It has been said that these selections 
appears to have proceeded on no recognizable principle 
and seem to have been made out of consideration of 
political expediency or regional or communal sentiments. 
Some of the members of the Bar appointed to the Bench 
did not occupy the front rank in the profession either in 
the matter of legal
equipment or of the volume of their 
practice at the bar. A number of more capcrble and 
deserving persons appear to have been ignored for 
reasons that can stem only from political or communal or 
similar grounds. Equally forceful or even more 
unfavourable comments have been made in respect of 
persons selected form the services. We are convinced
SUPREME COURT ADVOCATES-ON-RECORD 
669 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
that the views expressed to us show a well founded and A 
acute public dissatisfaction at these appointments."34 
63. On the procedure followed for the appointment of a 
judge of the High Court and the administrative working of Article 
217 of the Constitution, the LCI had this to say: 
"The Chief Justice forwards his recommendation to the 
Chief Minister who in tum forwards this recommendation 
B 
in consultation with the Governor to the Minister of Home 
Affairs in the Central Government. If, however, the Chief 
Minister does not agree with the recommendation of the C 
Chief Justice, he makes his own recommendation. It 
appears that in such a case, the Chief Justice is given 
an opportunity for making his comments on the 
recommendation made by the Chief Minister. This 
practice is not, however, invariably followed so that, in 
D 
some cases it happens that the recommendation made 
by the Chief Minister does not come to the knowledge of 
the Chief Justice. The rival recommendations are then 
forwarded to the Minister of Home Affairs who, in 
consultation with the Chief Justice of India, advises the 
E 
President as to the selection to be made. The person 
recommended by the Chief Minister may be, and 
occasionally is, selected in preference to the person 
recommended by the. Chief Justice."35 
F 
64. The LCI recorded that no less a personage than the 
Chief Justice of India had this to say
about executive 
interference in the appointment of judges to the High Courts 
(for reasons other than merit): 
'The Chief Minister now has a hand direct or indirect in G 
the matter of the appointment to the High Court Bench. 
The inevitable result has been that the High Court 
34 Chapter 6 paragraph 8 
35 Chapter 6 paragraph 11 
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B 
c 
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appointments are not always made on merit but on 
extraneous considerations of community, caste, political 
affiliations, and likes and dislikes have a free play. This 
necessarily encourages canvassing which, I am sorry to · 
say, has become the order of the day. The Chief Minister 
holding a political office dependent on the goodwill of 
his party followers may well be induced to listen and give 
way to canvassing. The Chief Justice on the other hand 
does not hold his office on sufferance of any party and 
he knows the advocates and their merits and demerits 
and a recommendation by the Chief Justice is therefore 
more likely to be on merit alone that the one made by the 
Chief Minister who may know nothing about the 
comparative legal acumen of the advocates."36 
65. To conclude this aspect, the Report observes that 
extraneous factors have influenced the appointments and that 
there seems to be canvassing for appointment as a judge of 
the High Court: 
'This indeed is a dismal picture and would seem to show 
that the atmosphere of communalism, regionalism and 
political patronage, have in a considerable measure 
influenced appointments to the High Court Judiciary. 
Apart from this very disquieting feature, the prevalence 
of canvassing for judgeships is also a distressing 
development. Formerly, a member of the Bar was invited 
to accept a judgeship and he considered it a great 
privilege and honour.
Within a few years of Independence, 
however, the judgeship of a High Court seems to have 
become a post to be worked and canvassed for."37 
66. Based on its findings, the LCI reached the following 
conclusions, amongst others: 
36 Chapter 6 paragraph 14 
37 Chapter 6 paragraph 14 and 15
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671 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
"(8) Many unsatisfactory appointments have been made A 
to the High Courts on political regional and communal or 
other grounds with the result that the fittest men have not 
been appointed. This has resulted in a diminution in the 
out-turn of work of the Judges. 
B 
(9) These unsatisfactory appointments have been made 
notwithstanding the fact that in the vast majority of cases, 
appointments have been concurred in by the Chief 
Justice of the High Court and the Chief Justice of India. 
(10) Consultation with the State executive is necessary C 
before appointments are made to the High Court. 
(11) While it should be open to the State executive to 
express its own opinion on a name proposed by the Chief 
Justice, it should not be open to it to propose a nominee D 
of its own and forward it to the Centre. 
(12) The role of the State executive should be confined 
to making its remarks about the nominee proposed by 
the Chief Justice and if necessary asking the Chief 
Justice to make a fresh recommendation. 
E 
(14) 
Article 217 of the Constitution should be 
amended to provide that a Judge of a High Court should 
be appointed only on the recommendation of the Chief 
Justice of that State and with the concurrence of the Chief F 
Justice of lndia."38 
67. Unlike in the appointment of judges to the Supreme 
Court, the LCI suggested, for the High Courts, thatArticle 217 
of the Constitution ought
to be amended to incorporate the 
concurrence of the Chief Justice of India to the appointment. G 
This recommendation was made so that, .in future, no 
appointment could be made without the concurrence'Of the 
Chief Justice of India. 
'·" Chapter 6 paragraph 82 
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A 
68. The Report was considered in Parliament on 23'd, 
24th and 25th November, 1959 and the Government of the day 
gave its point of view, as did several Hon'ble Members. But 
what is more important is that in the debate on 24th November, 
1959 it was stated by Shri Govind Ballabh Pant, Hon'ble 
B Minister of Home Affairs that since 1950, as many as 211 
judges were appointed to the High Courts and out of these 
except one 'were made on the advice, with the consent and 
concurrence of the Chief Justice of India. And out of the 211, 
196 proposals which were accepted by the Government had 
C the support of all persons who were connected with this 
matter.'39 
69. A little later it was stated: 
"But as I said, these 196 appointments were made in 
D 
accordance with the unanimous advice of the Chief 
Justice of the High Court, the Chief Minister of the State, 
the Governor and the Chief Justice of India. There were 
fifteen cases in which there was a difference of opinion 
E 
F 
G 
between the Chief Justice and the Chief Minister or the 
Governor. So, these cases also were referred to the Chief 
Justice of India. In some of these he accepted the 
proposal made by the Chief Minister and in others he 
accepted the advice or the suggestion received from the 
Chief Justice of the High Court. But we on our part had 
his advice along with that of the Chief Justice of the High 
Court concerned and of the Chief Minister concerned. 
So,
these cases do not even come to five per cent. But 
even there, so far as we are concerned, out of these 211 
cases, as I said, except in one case where there was a 
difference of opinion between the Chief Minister and the 
Chief Justice, we had accepted in 210 cases the advice 
of the Chief Justice of lndia."40 
39 Page 287 
H 
40 Page 288-289
SUPREME COURT ADVOCATES-ON-RECORD 
673 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.) 
70. On the next day, that is, 251h November, 1959 Shri 
A 
A.K. Sen, Minister of Law reiterated the statement made by 
the Home Minister. He clarified that in one case where there 
was a difference of opinion, the Government accepted the 
advice of the Chief Justice of the High Court (not the Chief 
Minister) rather than the advice of the Chief Justice of India. 
B 
71. The discussion ended with an Hon'ble Member 
suggesting that the recommendations of the LCI be taken note 
of and implemented as quickly as possible. 
72. What is of importance in this Report (apart from C 
several other conclusions) is that there had been instances 
where a recommendation for appointment as a judge of the 
High Court was made by the Chief Minister without the 
knowledge of the Chief Justice and that canvassing had begun 
to take place for appointment as a judge of the High Court. D 
But in all cases, except one, the concurrence of the Chief 
Justice of India was taken. 
(b) 801h Report-10.8.1979 
Appointment of judges of the Supreme Court 
E 
73. The 8Q1h Report of the LCI was submitted on 10th 
August, 1979 and it was mainly prepared by Justice H.R. 
Khanna when he was its Chair.41 
7 4. It was observed that an independent judiciary is 
F 
absolutely indispensible for ensuring the Rule of Law. Generally 
in regard to appointment of judges, it was observed that wrong 
appointments have affected the image of
the Courts and have 
undermined the confidence of the people in them. Further, it 
was observed that an appointment not made on merit but G 
because of favouritism or other ulterior considerations can 
hardly command real and spontaneous respect of the Bar and 
41 Although Justice H.R. Khanna did not sign the Report. it had his full 
concurrence 
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A that the effect of an improper appointment is felt not only for 
the time being but its repercussions are felt long thereafter. 42 
75. In this background, and in relation to the appointment 
of judges of the Supreme Court, it was concluded that (1) Only 
8 
persons who enjoy the highest reputation for independence, 
dispassionate approach and detachment should be elevated 
to the Supreme Court. (2) No one should be appointed a judge 
of the Supreme Court unless he has severed affiliations with 
political parties for at least 7 (seven) years. (3)Aperson should 
c be appointed as a judge if he has distinguished himself for his 
independence, dispassionate approach and freedom from 
political prejudice, bias or leaning.43 
76. Significantly, the LCI recommended adopting a 
consultative process in that the Chief Justice of India should 
D consult his three senior-most colleagues while making a 
recommendation for an appointment. He should reproduce 
their views while making the recommendation. This would 
minimize the chances of any possible arbitrariness or 
favouritism. 44 
E 
F 
G 
77. These recommendations were incorporated by the 
LCI in its summary of recommendations. I am concerned with 
the following recommendation: 
"(32) The Chief Justice of India, while recommending the 
name of a person for appointment as a Judge of the 
Supreme Court should consult his three senior most 
colleagues and should in the communication
incorporating his recommendation specify the result of 
such consultation and reproduce the views of each of 
his colleagues so consulted regarding his 
recommendation. The role of these colleagues would 
42 Paragraphs 2.2 to 2.5 are relevant in this context 
43 Chapter 7 
44 This later on became what is commonly called the 'collegium system' of 
H 
appointment of judges
SUPREME COURT ADVOCATES-ON-RECORD 
675 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
be confined to commenting on the recommendation of A 
the Chief Justice. Such consultation would minimize 
possible arbitrariness or favoritism"45 
Appointment of judges of the High Court 
78. In relation to the appointment of judges of the High 
B 
Court, it was generally observed by the LCI in Chapter 6 of the 
Report that the prevailing impression was that their 
appointment 'has not been always made on merit and that this 
has affected the image of the High Courts.' 46 
79. The LCI suggested a consultation process for the 
appointment of a judge of the High Court. It was suggested 
that the Chief Justice should, when making a recommendation, 
consult his two senior-most colleagues and indicate their views 
c 
in writing. This would have a 'healthy effect' and considerably D 
minimize the chances of possible favoritism. It was opined that 
any recommendation of the Chief Justice which is concurred 
with by the two senior-most judges should normally be 
accepted. The LCI was, in principle, against the selection of 
persons as judges of the High Court on grounds or E 
considerations of religion, caste or region. 
80. With regard to the recommendations originating from 
the political executive it was said: 
"Another question which has engaged attention is as to 
F 
whether the role of the Chief Minister should be that of 
commenting on the name recommended by the Chief 
Justice, or whether,
in case he disagrees with the 
recommendation of the Chief Justice, he (the Chief 
Minister) can also suggest another name. This question G 
was agit;:ited in the past, and after due consideration it 
was decided that the Chief Minister would be entitled, in 
case he disagrees with the recommendation of the Chief 
45 Chapter 9 
46 Paragraph 5.9 
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Justice to suggest another name. The Chief Minister in 
such an event has to invite the comments of the Chief 
Justice and send the matter thereafter along with the 
comments of the Chief Justice, to the Union Minister of 
Law and Justice. In view of the fact that a decision 
B 
referred to above has already been taken after due 
consideration, we need not say anything further in the 
matter."47 
81. Keeping all these factors in mind, some of the 
c recommendations made by the LCI were as follows: 
D 
E 
F 
G 
H 
"(3) When making a recommendation for appointment 
of a judge of a High Court, the Chief Justice should 
consult his two seniormost colleagues. The Chief Justice, 
in his letter recommending the appointment, should state 
the fact of such consultation and indicate the views of his 
two colleagues so consulted. 
(4) Any recommendation of the Chief Justice which 
carries the concurrence of his two seniormost colleagues 
should normally be accepted. 
(7) The Commission is, in principle, against selection to 
the High Court Bench on ground of religion, caste or 
region. Merit should be the only consideration. Even 
when matters of State policy make it necessary to give 
representation to persons belonging to some religion, 
caste or region, every effort should be made to select 
the best person. The number of such appointments 
should be as few as possible. 
(12) On the question whether the role of the Chief Minister
should be that only of commenting on the name 
recommended by the Chief Justice, or whether the Chief 
Minister can also suggest another name, a decision has 
47 Paragraph 6.14
SUPREME COURT ADVOCATES-ON-RECORD 
677 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
already been taken and nothing further need be said in 
A 
the matter."48 
82. Generally speaking, the LCI was of the view that the 
constitutional scheme of appointment of judges was basically 
sound, had worked satisfactorily and did not call for any radical 
8 
change, though some aspects needed improvement. The 
recommendations mentioned above were made in that light. 
(c) 121•1 Report- 31.7.1981 
A new forum for judicial appointments 
83. It is important to note that this Report was prepared 
after the decision of this Court in S.P. Gupta. In its 121 st Report, 
the LCI noted that over the last four decades, mounting 
dissatisfaction has been voiced over the method and strategy 
c 
of selection and the selectees to man the superior judiciary.49 
D 
Further, in paragraph 7 .1 of its Report, the LCI noted that 
'Everyone is agreed that the present scheme or model or 
mechanism for recruitment to superior judiciary has failed to 
deliver the goods.' This was with reference to the executive 
primacy theory in the appointment of judges propounded in 
E 
S.P. Gupta. In view of this the LCI recommended a new broad-· 
based model called a National Judicial Service Commission. 50 
84. The LCI observed that two models were available 
for the appointment of judges. The first was the existing model 
F 
which conferred overriding powers on the executive in selecting 
and appointing judges .. But,
Article 50 of the Constitution 
mandates a separation between the Executive and the 
Judiciary. The second model involved diluting (not excluding) 
the authority of the executive by associating more people in 
G 
the decision making process and setting up a body in which 
the judiciary has a pre-eminent position. This participatory 
48 Chapter 9 
49 Chapter 1 paragraph 1.4 
50 Paragraph 7 .8 
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model was called by the LCI as the National Judicial Service 
Commission. 
85. The Commission was envisaged as a multi-member 
body headed by the Chief Justice of India whose 'pre-eminent 
B 
position should not be diluted at all', his predecessor in office, 
three .senior-most judges of the Supreme Court, three Chief 
Justices of the High Courts in order of their seniority, the Law 
Minister, the Attorney-General for India and an outstanding law 
academic. Thus, an 11 (eleven) member body was proposed 
c by the LCI for the selection and appointment of judges of the 
Supreme Court and the High Courts. To give effect to the 
recommendation, it was proposed to suitably amend the 
Constitution.51 
86. The recommendation of the LCI was partially 
D accepted by the government of the day and the Constitution 
(Sixty-seventh Amendment) Bill, 1990 was introduced in 
Parliament. This will be adverted to a little later. 
Arrears Committee -1989-90 
E 
87. Between 11th and 13th December, 1987 a Conference 
·of Chief Justices was held with the Chief Justice of India in the 
Chair. The Conference discussed, inter alia, issues relating 
to arrears of cases in the High Courts and the District Courts 
in the country. Grave concern was expressed over the problem 
F 
of arrears and it was pointed out by most Chief Justices that 
delay in the appointment of judges is responsible for the 
arrears. Even after recommendations are sent, the Chief
Justice has to wait for a long time for the Government to make 
G the appointment with the result that for a number of years Courts 
have been working with about 50% of their strength. 
H 
88. After a detailed discussion of the matter, it was 
decided to appoint a committee of Chief Justices to thoroughly 
51 Paragraph 7.10 and 7.15
SUPREME COURT ADVOCATES-ON-RECORD 
679 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
examine the issues raised and a Resolution was passed 
A 
appointing such a committee. The composition of the 
committee called the Arrears Committee changed over a 
period of time but finally it consisted of Chief Justice V.S. 
Malimath (Kerala High Court), Chief Justice P.O. Desai 
(Calcutta High Court) and Chief Justice Dr. A.S. Anand (Madras B 
High Court). The Arrears Committee gave its Report in two 
volumes to the Conference of Chief Justices held between 31st 
August and 2nd September, 1990 which accepted the Reports, 
subject to a few modifications. 
c 
89. Chapter 5 of Volume 2 of the Report deals with the 
unsatisfactory appointment of judges to the High Courts. It 
was observed by the Arrears Committee that unsatisfactory 
appointments have contributed in a large measure to the 
accumulation of arrears in the High Courts. It was observed o 
that merit and merit alone, coupled with a reputation for 
integrity, suitability and capability has to be the criterion for 
selection of judges and judges not selected on that basis or 
who are appointed on considerations other than merit, may 
not be able to act impartially and fairly. It was noted that for E 
this reason the selection of judges should be made with utmost 
care and concern.52 
. 90. The Arrears Committee also considered the Report 
given in the recent past by the Satish Chandra Committee 
F 
which was of the confirmed view
that some judges have not 
been directly recommended by the Chief Justice of the High 
Court but have been foisted on the High Court and that if this 
trend continued, it would be very difficult for the Chief Justice 
to effectively transact the judicial business of the Court. 53 
G 
91. Thereafter, the selection of a judge of the High Court 
for reasons other than merit was discussed and it was 
observed as follows: 
52 Paragraph 5.1 
53 Paragraph 5.4 
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c 
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E 
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"The selection of a person, on considerations other than 
merit, has far reaching consequences and does more 
damage than what appc.t"ently meets the eye. Such an 
appointee does not even receive from the members of 
the Bar the measure of respect and co-operation which 
is imperative for proper administration of justice. He may 
not have confidence even in himself and a command over 
the proceedings of the Court. All this would be at the 
cost of proper administration of justice. The effect would 
be felt not only on the quality but also on the quantity of 
the work turned out. 
According to Satish Chandra Committee, the sea 
change which has gradually come into the political 
process is directly responsible for the grave deterioration 
and the fall in the high standards of appointments to the 
High Court Bench previously maintained. Barring 
exceptions, the Chief Ministers to-day have come to think 
that even filling up vacancies on the High Court Bench is 
a matter of patronage, political or otherwise. It noticed 
that formerly members of the Bar were invited to accept 
judge-ship. Now, the judge-ship of the High Court seems 
to have become a post to be canvassed for. It was found 
that as long as the State executive has an effective hand 
in such appointments, this· disquieting feature would 
continue and that it could be remedied only by providing 
the safeguard of the executive having no final say in
the 
matter of app9intment and that the last word in the matter 
should be of the Chief Justice of the High Court 
concerned and the Chief Justice of India. The 
Committee, therefore, suggested amendment of the 
Constitution, as a guarantee for ensuring the quality, that 
an appointment to the High Court must have the 
concurrence of the Chief Justice of India and should not 
be made merely in consultation with him. An amendment
SUPREME COURT ADVOCATES-ON-RECORD 
681 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
was suggested to Article 217(1) of the Constitution on 
A 
those lines."54 
92. It was concluded that for the judicial system to function 
effectively and forthe people to have faith and confidence in it, 
the appointment of judges should be made only on 8 
considerations of merit, suitability, integrity and capability and 
not on political expediency or regional or communal 
sentiments. It was observed in this regard as follows: 
"This Committee is of the firm view that to ensure that 
the judicial system functions effectively and to maintain C 
both the quality and quantity of judicial work, as well as 
the faith and confidence of the public, the appointments 
be made only on considerations of merit, suitability, 
integrity and capability and not of political expediency or 
regional or communal sentiments. The apprehension that D 
the recommendation made by him may not meet with 
the approval of the executive, may sometimes !nduce a 
Chief Justice to propose the name of a person who does 
not measure upto the requisite standard, which is rather 
unfortunate. It is fundamental for the preservation of the 
E 
independence of the judiciary that it be free from threats 
and pressures from any quarter. It is the duty of the State 
to ensure that the judiciary occupies, and is seen to 
occupy, such position in the polity that it can effectively F 
perform the functions entrusted to it by the
Constitution 
and that can be done only if the process of appointment 
is left unpolluted." 55 
93. Commenting on the existing system of appointment 
of judges, the Arrears Committee reviewed the system in 
G 
Chapter 6 of the Report. Amongst other things it was observed 
that the system of appointment of judges had been prevailing 
for four decades and it was functioning satisfactorily so long 
54 Paragraphs 5.5 and 5.6 
55 Paragraph 5.8 
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as well-established conventions were honoured and followed 
and that it is not the system that has failed but those operating 
it had failed it by allowing it to be perverted. It was observed 
as follows: 
B 
c 
D 
'The present system of appointment of Judges to the 
High Courts has been in vogue for about four decades. It 
functioned satisfactorily as long as the well-established 
conventions were honoured and followed. The gradual, 
but systematic violation and virtual annihilation of the 
conventions over the past two decades or so is 
essentially responsible for the present unfortunate 
situation. Has the system, therefore, failed or have the 
co~cerned failed the system is an all important question. 
It is apparent that the system has not failed, but all those 
concerned with operating the system have failed it by 
allowing it to be perverted."56 
94. While dealing with the Memorandum of Procedure 
in existe'nce at that time for the appointment of judges, the 
Arrears Committee was rather scathing in its observations to 
E the effect that there had been cases where there was 
agreement between the Chief Justice of India, the Chief Justice 
of the concerned High Court.and the Governor of the State but 
the Union Law Minister either choose not to make the 
F appointment or inordinately delayed the appointment. It was 
observed that sometimes the Union Law Minister adopted a 
pick and choose policy to appoint judges or
disturb the order 
in which the recommendations were made. There had been 
political interference in this regard and undesirable influence 
G of extra-constitutional authorities in the appointment of judges. 
-H 
The appointment process therefore was undermined leaving 
the executive to appoint judges not on excellence but on · 
influence. It was observed as follows: 
56 Paragraph 6 .11
SUPREME COURT ADVOCATES-ON-RECORD 
683 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR. J.] 
"There are cases that even where the Chief Justice of A 
India on being consulted, agrees with the 
recommendation made by the Chief Justice of the 
concerned High Court which is also concurred to by the 
Governor of the State and forwards his recommendation 
to the Union Law Minister, appointments are either not B 
made or made after inordinate delay. Sometimes, the 
Union Law Minister even adopts the "pick and choose" 
policy to appoint Judges out of the list of selectees 
recommended by the Chief Justice of the High Court duly 
concurred in by the Chief Justice of India or makes C 
appointments by disturbing the order in which the 
recommendations have been made. The malady has 
become more acute in view of the political interference 
and undesirable influence of "extra constitutional 
D 
authorities" in the appointment of judges. Thus, the 
· authority of the Chief Justice of India and the role of the 
Chief Justice of the High Courts in the matter of 
appointment of superior judiciary have, to a great extent, 
been undermined, leaving to the executive to appoint E 
Judges not on "excellence" but on "influence". Thus, merit, 
ability and suitability which undoubtedly the Chief Justice 
of the High Court is the most proper person to judge, are 
sacrificed at the altar of politital or other expediency. This 
attitude is essentially responsible for the deterioration 
F 
and the fall in the
high standards of appointments to the 
High Court Benches. It is unfortunate, but absolutely true, 
that the Chief Ministers have come to think and the Union 
Law Minister has come to believe that the vacancy in the 
High Court Bench is a matter of political patronage which G 
they are entitled to distribute or dole out to their favourites. 
This veto power with the executive has played havoc in 
the matter of appointment of Judges."57 
57 Paragraph 6.9 
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95. In its recommendations, the Arrears Committee 
B 
c 
D 
E 
F 
recommended dilution of the role of the executive and 
measures to avoid the existing system of appointment from 
being perverted. It was recommended as follows: 
"The role of the executive in the matter of appointment of 
judges should be diluted and that the cause for most of 
the ills in the functioning of the present system could be 
traced back to the veto power of the executive. This, 
indeed, is capable of being remedied by making certain 
amendments to Article 217 providing for concurrence of 
the Chief Justice of India, instead of consultation with 
him, in the matter of appointment of Judges of the High 
Courts."58 
"The Committee is of the view that the present 
constitutional scheme which was framed by the founding 
fathers after great deliberation and much reflection is 
intrinsically sound and that it worked in the true spirit it 
does not require any radical change. In order to guard 
against and obviate the perversion revealed in tile 
operation of the scheme, the Committee has made 
suitable recommendations. The Committee believes that 
if these recommendations are given effect to, there would 
not be any need to substitute it by a different 
mechanism."59 
96. In view of the scathing indictment of the system of 
appointment of judges where the executive had the 'ultimate 
power'60 which was being abused and perverted to take away 
the
independence of the judiciary, contrary to the intention of 
G the Constituent Assembly, there was no option but to have a 
fresh look into the entire issue of appointment of judges and 
ss Paragraph 124 
~· Paragraph 130 
• 0 This expression was used by Justice Bhagwati and by Justice D.A. Desai 
H 
in paragraph 719 of S.P. Gupta v. Union of India.
SUPREME .COURT ADVOCATES-ON-RECORD 
685 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
that eventually led to the issue being referred in the early 1990's A 
to a Bench of 9 (nine) judges of this Court. Quite clearly, the 
executive had made a mess of the appointment of judges, 
taken steps to subvert the independence of the judiciary, gone 
against the grain of the views of the Constituent Assembly and 
acted in a manner that a responsible executive ought not to. 
B 
97. Post Independence till the early 1990s, the judiciary 
saw the slow but sure interference of the executive in the 
appointment of judges. This was in the form of the executive 
recommending persons to the Chief Justice of the High Court c 
for appointment as a judge of the High Court. There were 
occasions when the executive completely by-passed the Chief 
Justice of the High Court and directly recommended persons 
to the Union Government for appointment as judges. The third 
stratagem adopted by the executive was to withhold 
D 
recommendations made by the Chief Justice and instead 
forward its own recommendation to the Union Government. 
The fourth method was to reopen approved recommendations 
on some pretext or the other. The fifth method was to delay 
processing a recommendation made by the Chief Justice. 
E 
98. Tragically, almost all the appointments made during 
this period had the concurrence (as a constitutional convention) 
of the Chief Justice of India and yet, there was criticism of 
some of the
appointments made. While the independence of F 
the judiciary was maintained at law, it was being slowly eroded 
both from within and without through the appointment of 
'unsuitable' judges with merit occasionally taking a side seat. 
The 141h Report of the LCI was generally critical of the 
appointments made to the High Courts and in this regard 
G 
reliance was placed by the LCI on information collected from 
various sources including judges of the Supreme Court. It is 
true that the 801h Report of the LCI found nothing seriously wrong 
with the system of appointment of judges, but it still needed a 
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change. The Arrears Committee, however, was derisive of the 
existing system of appointment of judges and made some 
positive recommendations within the existing system, while 
the 121 st Report of the LCI suggested wholesale changes. 
B 
99. This discussion in the historical perspective indicates 
that the appointment of judges plays a crucial and critical role 
in the independence of the judiciary in the real sense of the 
term. If judges can be influenced by political considerations 
and other extraneous factors, the judiciary cannot remain 
C independent only by securing the salary, allowances, conditions 
of service and pension ofsuch judges. The meat lies in the 
caliber of the judges and not their perks. 
100. In his concluding address to the Constituent 
Assembly on 26th November, 1949 Dr. Rajendra Prasad 
D referred to the independence of the judiciary and had this to 
say: 
E 
F 
G 
H 
"We have provided in the Constitution for a judiciary which 
will be independent. It is difficult to suggest anything 
more to make the Supreme Court and the High Courts 
independent of the influence of the executive. There is 
an attempt made in the Constitution to make even the 
lower judiciary independent of any outside or extraneous 
influence. One of our articles makes it easy for the State 
Governments to introduce separation of executive from 
judicial functions and placing the magistracy which deals 
with criminal cases on
similar footing as civil courts. I 
can only express the hope that this long overdue reform 
will soon be introduced in the States."61 
101. Providing for an independent judiciary is not enough 
- access to quality justice achieved through the appointment 
of independent judges is equally important It has been said of 
6' h!!p-/fparliameotofindja ojc jol!s/debates/yo!11pl2 htm
SUPREME COURT ADVOCATES-ON-RECORD 
. 687 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
the judges during apartheid in South Africa: 
A 
"Now during apartheid judges had the formal guarantees 
of independence - life tenure, salary, administrative 
autonomy - that judges in the United States of America, 
Canada, the United Kingdom, New Zealand or Australia B 
had. It is in seeing why it was the case that apartheid-era 
judges for the most part lacked independence even 
though they had its formal trappings that we see that 
judicial independence is also a kind of dependence; it 
depends on something positive - the judicial pursuit of c 
the justice of the law. One has to ask not only what judges 
have to be shielded from in order to be independent, but 
what we want them to be independent for. "62 
102. This review indicates that one of the important 
features of the Rule of Law and the independence of the 
D 
judiciary is the appointment process. It is, therefore, necessary 
to objectively appreciate the evolution of the appointment 
process post Independence and how the Judiciary understood 
it. 
Judicial pronouncements 
103. The question of the appointment of judges (mainly 
of the High Courts) came up for consideration in this Court on 
three occasions. The decision rendered in each of these cases 
E 
is not only of considerable importance but also indicates the 
F 
complexity in the appointment of judges and the struggle by 
the Bar to maintain the independence of the
judiciary from 
executive interference and encroachment. These three cases 
are referred to as the First Judges case,63 the Second G 
Judges case64 and the Third Judges case.65 There have 
62 Judicial Independence, Transitional Justice and the Rule of Law by David 
Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346 
63 S.P. Gupta v. Union of India, 198f Supp SCC 87 (Seven Judges Bench) 
64 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 
4 SCC 441 (Nine Judges Bench) 
65 Special Reference No. 1of1998, (1998) 7 SCC 739 (Nine Judges Bench) 
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been other significant pronouncements on the subject and they 
will be considered at the appropriate stage. 
First judges case - 30.12.1981 
104. The First Judges case is important for several 
B 
reasons, but I am concerned with a few of them. These are: (1) 
The independence of the judiciary was held to be a part of the 
basic feature of the Constitution.66 This was the first judgment 
to so hold. 
(2) The appointment of a judge is serious business and 
C 
is recognized as a very vital component of the independence 
of the judiciary. 'What is necessary is to have Judges who are 
prepared to fashion new tools, forge new methods, innovate 
new strategies and evolve a new jurisprudence, who are judicial 
0 
statesmen with a social vision and a creative faculty and who 
have, above all, a deep sense of commitment to the Constitution 
with an activist approach and obligation for accountability, not 
to any party in power nor to the opposition nor to the classes 
which are vociferous but to the half-hungry millions of India who 
E 
are continually denied their basic human rights. We need 
Judges who are alive to the socio-economic realities of Indian 
life, who are a·nxious to wipe every tear from every eye, who 
have faith in the constitutional values and who are ready to 
use law as an instrument for achieving the constitutional 
F 
objectives. This has to be the broad blueprint of the appointment 
project for the higher
echelons of judicial service. It is only if 
appointments of Judges are made with these considerations 
weighing predominantly with the appointing authority that we 
can have a truly independent judiciary committed only to the 
G Constitution and to the people of lndia.' 67 Justice 
Venkataramiah, however, was of the view that the 
independence of the judiciary is relatable only to post-
66 Paragraphs 27, 320 and 634. This view has been upheld in several 
decisions thereafter. 
H 
67 Paragraph 27
SUPREME COURT ADVOCATES-ON-RECORD 
689 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
appointment and that 'It is difficult to hold that merely because A 
the power of appointment is with the executive, the 
independence of the judiciary would become impaired. The 
true principle is that after such appointment the executive 
should have no scope to interfere with the work of a Judge.'68 
(3) In the appointment of a judge of the Supreme Court B 
or the High Court, the word 'consultation' occurring in Article 
124(2) and in Article 217(1) of the Constitution does not mean 
'concurrence'. 69 However, for the purposes of consultation, each 
constitutional functionary must have full and identical facts c 
relating to the appointment of a judge and the consultation 
should be based on this identical material. 70 
(4) In the event of a disagreement between the 
constitutional functionaries required to be consulted in the 
appointment of a judge, the Union Government would decide D 
whose opinion should be accepted and whether an 
appointment should be made or not. In such an event, the 
opinion of the Chief Justice of India has no primacy. 71 The 
'ultimate power' of appointment of judges to the superior Courts 
rests with the Union Government.72 (This is completely contrary E 
to the view of the Constituent Assembly and Dr. Ambedkar). 
(5) The extant system of appointment of judges is not an 
ideal system of appointment. The idea of a consultative panel 
(called a collegium or
Judicial Commission) was floated as a 
F 
replacement. This body was to consist of persons expected 
to have knowledge of persons who might be fit for appointment 
on the Bench and possessed of qualities required for such an 
appointment. Countries like Australia and New Zealand 'have 
veered round to the view that there should be a Judicial G 
68 Paragraph 1 033 
69 Paragraph 30 and paragraph 890 
70 Paragraphs 30, 632 and 848 
71 Paragraph 30 
72 Paragraph 30 
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A 
Commission for appointment of the higher judiciary.' 73 
Incidentally, we were informed during, the course of hearing 
that even about 35 years after the decision in the First Judges 
case neither Australia nor New Zealand have established a 
Judicial Commission as yet. 
B 
105. On the meaning of 'consultation' for the purposes 
of Article 124(2) and Article 217(1) of the Constitution, Justice 
Bhagwati who spoke for the majority relied upon Union of 
India v. Sankalchand Himmatlal Sheth74 and R. Pushpam 
c v. State of Madras75 to hold that: 
"Each of the constitutional functionaries required to be 
consulted under these two articles must have for his 
consideration full and identical facts bearing upon 
D 
appointment or non-appointment of the person 
concerned as a Judge and the opinion of each of them 
taken on identical material must be considered by the 
Central Government before it takes a decision whether 
or not to· appoint the person concerned as a Judge."76 
E 
106. The majority view in the First Judges case was 
overruled in the Second Judges case and it was held that 
'consultation' in Article 217 and Article 124 of the Constitution 
meant that 'primacy' in the appointment of judges must rest 
with the Chief Justice of India. 77 The evolution of the collegium 
F system and a Judicial Commission will be discussed a little 
later, although it must be noted that the seeds thereof were 
sown (apart from the Reports
of the LCI) in the First Judges 
case. 
G 
107. I do not think it necessary to further discuss the First 
73 Paragraph 30 and 31 
74 (1977) 4 SCC 1993 (Five Judges Bench) 
7s AIR 1953 Mad 392 
76 Paragraph 30 
77 I entirely agree with Justice Chelameswar when he says that the Second 
-
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Judges case did not hold that consultation means concurrence.
SUPREME COURT ADVOCATES-ON-RECORD 
691 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.) 
Judges case since it has been elaborately considered by A 
Justice Khehar. 
Subhash Sharma's case 
108. In a writ petition filed in this Court praying for filling 
up the vacancies of judges in the Supreme Court and several 
B 
High Courts of the country, a three judge Bench was of the 
view that the First Judges case required reconsideration. 78 It 
was observed that the decision of the majority not only rejects 
the primacy of the Chief Justice of India but also whittles down 
the significance of 'consultation'. 
C 
109. It was noted that the Constitution (Sixty-seventh 
Amendment) Bill, 1990 was pending consideration in 
Parliament and that the Statemel'.lt of Objects and Reasons 
for the Amendment Act acknowledged that there was criticism D 
of the existing system of appointment of judges (where the 
executive had the primacy) and that this needed change, hence 
the need for an AmendmentAct.79 
110. On the issue of executive interference in the 
appointment of judges, the Bench found that interference went E 
to the extent of impermissibly re-opening the appointment 
process even though a recommendation for the appointment 
of a judge had been accepted by the Chief Justice of India. It 
was observed: 
F 
"From the affidavits filed by the Union of India and the 
statements made by learned Attorney General on the 
different occasions when the matter was heard we found 
that the Union
Government had .adopted the policy of 
reopening recommendations even though the same had G 
been cleared by the Chief Justice of India on the basis 
that there had in the meantime been a change in the 
personnel of the Chief Justice of the High Court or the 
78 Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574 
" Paragraph 27 
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692 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
Chief Minister of the State. The selection of a person as 
a Judge has nothing personal either to the Chief Justice 
of the High Court or the Chief Minister of the State. The 
High Court is an institution of national importance wherein 
the person appointed as a Judge functions in an 
impersonal manner. The process of selection is intended 
to be totally honest and upright with a view to finding out 
the most suitable person for the vacancy. If in a given 
case the Chief Justice of the High C.ourt has 
recommended and the name has been considered by 
the Chief Minister and duly processed through the 
Governor so as to reach the hands of the Chief Justice 
of India through the Ministry of Justice and the Chief 
Justice of India as the highest judicial authority in the 
country, on due application of his mind, has given finality 
to the process at his level, there cannot ordinarily be any 
justification for reopening the matter merely because 
there has been a change in the personnel of the Chief 
Justice or the Chief Minister of the State concerned."80 
111. Apart from the above, the Bench was of the view 
that the interpretation given by the majority in the First Judges 
case to 'consultation' was not correctly appreciated in the 
constitutional scheme. It was also felt that the role of the 
institution of the Chief Justice of India in the constitutional 
F 
scheme had been denuded in the First Judges case. Keeping
all these factors in mind, particularly the functioning of the 
appointment process and the acknowledgement of the Union 
Government that a change was needed, it was observed: 
G 
'The view taken by Bhagwati, J., Fazal Ali, J., Desai, J., 
and Venkataramiah, J., to whicb we will presently advert, 
in our opinion, not only seriously detracts from and 
denudes the primacy of the position, implicit in the 
• 0 Paragraph 28 
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SUPREME COURT ADVOCATES-ON-RECORD 
693 
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 
constitutional scheme, of the Chief Justice of India in the 
A 
consultative process but also whittles down the very 
significance of "consultation" as required to be 
understood in the constitutional scheme and context. This 
bears both on the substance and the process of the 
constitutional scheme ..... Consistent with the B 
constitutional purpose and process it becomes 
imperative that the role of the institution of the Chief 
Justice of India be recognised as of crucial importance 
in the matter of appointments to the Supreme Court and 
the High Courts of the States. We are of the view that C 
this aspect dealt with in Gupta case requires 
reconsideration by a larger bench."81 
112. The issues for consideration of a larger Bench were 
then formulated in the following words: 
D 
"The points which require to be reconsidered relate to 
and arise from the views of the majority opinion touching 
the very status of "consultation" generally and in particular 
with reference to "consultation" with Chief Justice of India 
and, secondly, as to the primacy of the role of the Chief E 
Justice of India. The content and quality of consultation 
may perhaps vary in different situations in the interaction 
between the executive and the judicial organs of the State 
and some aspects may require clarification."82 
F 
113. It was ·also observed 't1'r.1t a view was expressed in 
the First Judges case that
the government of the State could 
. initiate a proposal for the appointment of a judge but that the 
proposal could not be sent directly to the Union Government, 
but should first be sent to the Chief Justice of the High Court. 83 
G 
Notwithstanding this clear exposition, the procedure was being 
distorted by the executive and a proposal for the appointment 
81 Paragraph 31 
82 Paragraph 32 
83 Paragraph 728 of the First Judges case 
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694 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
of judge of the High Court was being sent directly to the Union 
B 
Government. It was said in this regard: 
"But it has been mentioned that a practice is sought to 
be developed where the executive government of the 
State sends up the proposals directly to the Centre without 
reference to the Chief Justice of the State. This is a 
distortion of the constitutional scheme and is wholly 
impermissible. So far as the executive is concerned, the 
'right' to initiate an appointment should be limited to 
c 
suggesting appropriate names to the Chief Justice of 
the High Courts or the Chief Justice of India. If the 
recommendation is to emanate directly from a source 
other than that of the Chief Justices of the High Courts in 
the case of the High Courts and the Chief Justice of India 
o 
in the case of both the High Courts and the Supreme 
Court it would be difficult for an appropriate selection to 
be made. It has been increasingly felt over the decades 
that there has been an anxiety on the part of the 
government of the day to assert its choice in the ultimate 
E 
selection of Judges. If the power to recommend would 
vest in the State Government or even the Central 
Government, .the picture is likely to be blurred and the 
process of selection ultimately may turn out to be 
difficult."84 
F 
114. By-passing the Ghief Justice of the High Court in 
the matter of recommending a person for appointment as a 
judge of the High Court