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
Court in India Cement 
Ltd. v. State of Tamil Nadu25• This Court had to frame the above 
question, and refer the matter to a nine-Judge Bench. Learned 
G counsel, then placed reliance on Sub-Committee of Judicial 
Accountability v. Union of lndia26, wherein this Court had 
observed as under: 
" (2011 J 4 sec 450 
24 (2004J 10 sec 201 
2' 
( 1990 J 1 sec 12 
H 
2' (1992) 4 sec 97
SUPREME COURT ADVOCATES-ON-RECORD 
203 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
"5. Even if the prayer is examined as if it were an 
A 
independent substantive proceeding, the tests apposite to 
such a situation would also not render the grant of this 
relief permissible. The considerations against grant of this 
prayer are obvious and compelling. Indeed. no co-ordinate 
bench of this Court can even comment upon. let alone sit 
B 
in judgment over, the discretion exercised or judgment 
rendered in a cause or matter before another co-ordinate 
bench ...... " 
In view of the above, it was contended, that this Court C 
while examining the merits of the controversy in hand, was 
bound to rely on the judgments in the Second and Third Judges 
cases, to record its conclusions. Referring to the factual 
position narrated above, it was submitted, that this Court would 
not be in a position to effectively adjudicate on the issues D 
canvassed, till the matter was referred to a nine-Judge Bench 
(or even, a still larger Bench). 
52. Mr. Ranjit Kumar, learned Solicitor General of India 
submitted, that he would support the claim for reference to a 
larger Bench, by relying upon two judgments, and say no more. 
E 
First and foremost, he placed reliance on the Bengal Immunity 
Co. Ltd. case19, which itwas pointed out, had considered the 
judgment in State of Bombay v. United Motors (India) Ltd. 27• 
The matter, it was submitted, came to be referred to a seven-
Judge Bench, to
decide whether the judgment needed to be 
F 
reconsidered. This process, according to learned Solicitor 
General, need to be adopted in the present controversy as 
well, so as to take a fresh call on the previous judgments. 
Learned Solicitor General then placed reliance on Keshav G 
Mills Co. Ltd. v. Commissioner of Income-tax, Bombay North28, 
wherein a seven-Judge Bench held as under: 
"In dealing with the question as to whether the earlier 
27 (1953) SCR 1069 
26 (1965) 2 SCR 908 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
decisions of this Court in the New Jehangir Mills case, 
(1960) 1 SCR 249 and the Petlad Co. Ltd. case, (1963) 
Supp. SCH 871, should be reconsidered and revised by 
us, we ought to be clear as to the approach which should 
be adopted in such cases. Mr. Palkhivala has not disputed 
the fact that, in a proper case, this Court has inherent 
jurisdiction to reconsider and revise its earlier decisions, 
and so, the abstract question as to whether such a power 
ve~ts in this Court or not need not detain us. In exercising 
this inherent power, however, this would naturally like to 
impose certain reasonable limitations and would be 
reluctant to entertain pleas for the reconsideration and 
revision of its earlier decisions, unless it is satisfied that 
there are compelling and substantial reasons to do so. It is 
general judicial experience thatin matters of law involving 
que$tion of constructing statutory or constitutional 
provisions, two views are often reasonably possible and 
when judicial approach has to make a choice between the 
two reasonably possible views, the process of decision-
making is often very difficult and delicate. When this Court 
hears appeals against decisions of the High Courts and is 
required to consider the propriety or correctness of the view 
taken by the High Courts on any point of law, it would be 
open to this Court to hold that though the view taken by the 
High Court is
reasonably possible. the alternative view 
which is also reasonably possible is better and should be 
preferred. In such a case. the choice is between the yiew 
taken by the High Court whose judgment is under appeal, 
and the alternative view which appears to this Court to be 
more reasonable: and in accepting its own view in 
preference to that of the High Court. this Court would be 
discharging its duty as a Court of Appeal. But different 
considerations must inevitably arise where a previous 
· decision of this Court has taken a particular view as to the 
construction of a statutory provision as, for instance,
SUPREME COURT ADVOCATES-ON-RECORD 
205 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
s. 66(4) of the Act. When it is urged that the view already A 
taken by this Court should be reviewed and reyjsed. it may 
not necessarily be an adequate reason for such review 
and revision to hold that though the earlier view is a 
reasonably possible view, the alternative view which is 
pressed on the subsequent occasion is more reasonable. 
B 
In reviewing and revising its earlier decision, this Court 
should ask itself whether in interests of the public good or 
for any other valid and compulsive reasons. it is necessary 
that the earlier decision should be revised. When this Court 
decides questions of law, its decisions are, under Art. 141, C 
binding on all courts within the territory of India, and so, it 
must be the constant endeavour and concern of this Court 
to introduce and maintain an element of certainty and 
continuity in the interpretation of law in the country.Frequent 
D 
exercise by this Court of its power to review its earlier 
decisions on the ground that the view pressed before it 
later appears to the Court to be more reasonable. may 
incidentally tend to make law uncertain and introduce 
confusion which must be consistently avoided. That is not 
E 
to say that if 9n a subsequent occasion. the Court is 
satisfied that its earlier decision was clearly erroneous. it 
should. hesitate to correct the error: but bef9re a previous 
decision is pronounced to be plainly
erroneous. the Court 
must ge satisfied with a fair amount of unanimity amongst F 
its members that a revision of the said view is fully justified. 
It is not possible.or desirable, and in any case it would be 
inexpedient to lay down any principles which should govern 
the approach of the Court in dealing with the question of 
reviewing and revising its earlier decisions. It would always G 
depend upon several relevant considerations: -
What is 
the nature of the infirmity or error on which a plea for a 
review and revision of the earlier view is based? On the 
earlier occasion, did some patent aspects of the question 
remain unnoticed, or was the attention of the Court not drawn . H 
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SUPREME COURT REPORTS 
[2015] 13S.C.R. 
to any relevant and material statutory provision, or was any 
previous decision of this Court bearing on the point not 
noticed? Is the Court hearing such plea fairly unanimous 
that there is such an error in the earlier view? What would 
be the impact·of the error on the general administration of 
law or on public good? Has the earlier decision been 
followed on subsequent occasions either by this Court or 
by the High Courts? And, would the reversal of the earlier 
decision lead to public inconvenience, hardship or mischief? 
These and other relevant considerations must be carefully 
borne in mind whenever this Court is called upon to exercise 
its jurisdiction to review and review and revise its earlier 
decisions. These considerations become $till more 
significant when the earlier decision happens to be a unanimous 
decision of a Bench of five learned Judges of this Court. 
..... The principle of stare decisis, no doubt, cannot be 
pressed into service in cases where the jurisdiction of this 
Court to reconsider and revise its earlier decisions is 
invoked; but nevertheless, the normal principle that 
E 
judgments pronounced by this Court would be final, cannot 
be ignored, and unless considerations of a substantial and 
compelling character make it necessary to do so, this Court 
should and would be reluctant to review and revise its earlier 
decisions. That, broadly stated, is the approach which we 
F 
propose
to adopt in dealing with the point made by the 
learned Attorney-General that the earlier decisions of this 
Court in the New Jehangir Mills Gase, (1960) 1 SCR 249 
and the Petlad Co. Ltd. case, (1963) Supp. 1 SCR 871, 
should be reconsidered and revised. 
G 
Let us then consider the question of construing s. 66(4) of 
the Act. Before we do so, it is necessary to read sub-section 
(1 ), (2) and (4) of s. 66. Section 66(1) reads thus: -
"Within sixty days of the date upon which he is served with 
notice of an order under sub-section (4) of section 33, the 
H 
assessee or the Commissioner may, by application in the
SUPREME COURT ADVOCATES-ON-RECORD 
207 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
prescribed form, accompanied where application is made by A 
the assessee by a fee of one hundred rupees, require the 
appellate Tribunal to refer to the High Court any question 
of law arising out of such order, and the Appellate Tribunai 
shall within ninety days of the receipt of such application 
draw up a statement of the case and refer it to the High 
B 
Court." ..... " 
Based on the above, it was asserted, on the basis of the 
factual and legal position projected by the learned Attorney 
General, that the position declared by this Court in the Second C 
Judges case, as also, in the Third Judges case, was clearly 
erroneous. It was submitted, that the procedure evolved by this 
Court for appointment of Judges to the higher judiciary having 
. miserably failed, not because of any defect in the 
independence of the procedure prescribed, but because of D 
the "intra-dependence of the Judges", who took part in 
discharging the responsibilities vested in the collegium. of 
Judges, certainly required a re-examination. 
53. It is apparent from the submissions advanced ·at the 
hands of the learned counsel representing the Union of India 
E 
and the different State Governments, that rather than choosing 
to respond to the assertions made with reference to the 
constitutional validity of the Constitution (99th Amendment)Act, 
2014 and the NJAC Act, had collectively canvassed, that the
present five-Judge Bench should referthe present controversy 
F 
for adjudication to a Bench of nine or more Judges, which could 
effectively revisit, if necessary, the judgments rendered by this 
Court in the Second and Third Judges cases. In view of ttie 
aforesaid consideration, we are of the view, that the G 
observations recorded by this Court, in the Suraz India Trust 
case15, as also, the fact that the same is pending before this 
Court, is immaterial. Consequent upon the instant 
determination by us, the above matter will be liable to be 
disposed of, in terms of the instant judgment. 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A IV. OBJECTION BY THE PETITIONERS. TO THE MOTION 
FOR REVIEW: 
54. Mr. Fali S. Nariman, disagreed with the suggestion 
that the controversy in hand, needed to be decided by a larger 
B 
Bench. It was his pointed submission, that the issue canvassed 
had been improperly pressed, by overlooking certain salient 
features, which had necessarily to be taken into consideration, 
before a prayer for reference to a larger Bench could be 
agitated. It was submitted, that all the learned counsel 
c representing the· respondents had overlooked the fact, that the 
interpretation of Article 124 of the Constitution, was rendered 
in the first instance, by a seven-Judge Bench in the First 
Judges case. It was pointed out, that the law declared by this 
Court in the First Judges case, having been doubted, the matter· 
o was referred for reconsideration, before the nine-Judge Bench, 
which delivered the judgment in the Second Judges case. It 
was pointed out, that the prayer for revisitation, which is being 
made at the behest of the learned counsel representing the 
Union of India and the different participating States, was clearly 
E 
unacceptable, because the legal position declared by this 
Court in the First Judges case had already been revisited in 
the Second Judges case by a larger Constitution Bench. Not 
only that, it was asserted, that when certain doubts arose about 
the implementation of the judgment in the Second Judges case, 
F 
a
Presidential Reference was made under Article 143, resulting 
in the re-examination of the matter, at the hands of yet another 
nine-Judge Bench, where the Union of India clearly expressed 
its stand in ~aragraph 11 as under: 
G 
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"11. We record at thei outset the statements of the 
Attorney General that (1) the Union of India is not seeking 
a review or reconsideration of the judgment in the 
Second Judges case and that (2) the Union of India shall 
accept and treat as binding the answers of this Court to 
the questions set out in the Reference."
SUPREME COURT ADVOCATES-ON-RECORD 
209 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
It was submitted, that thereupon, the matter was again 
A 
examined and the declared legal position in the Second 
Judges case, was reiterated and confirmed, by the judgment 
rendered in the Third Judges case. Premised on the aforesaid 
factual position, learned counsel raised a poser, namely, how 
many times, can this Court revisit the same ql!lestion? It was 
B 
asserted, that just because such a prayer seems to be the 
only way out, for those representing the respondents, the same 
need not be accepted. 
55. Learned senior counsel pointed out, that the legal c 
position with reference to appointments to the higher judiciary 
came to be examined and declared, for the first time, in the 
First Judges case, in 1981. It was submitted, thatthe aforesaid 
determination would not have been rendered, had this Court's 
attention been drawn to the Samsher Singh case11 , during the o 
course of hearing, in the First Judges case. It was submitted, 
that the position declared by this Court in the First Judges case 
needed to be revisited, was realized during the hearing of the 
case in the Subhash Sharma case4• While examining the 
justification of the conclusions drawn by this Court, in the First E 
Judges case, the matter was placed for consideration, before 
a nine-Judge Bench. It was submitted, that all the issues, which 
have now been raised at the hands of learned senior counsel
representing the respondents, were canvassed before the 
Bench hearing the Second Judges case. This Court, in the Second 
F 
Judges case, clearly arrived at the conclusion, that the earlier 
judgment rendered in the First Judges case, did not lay down 
the correct law. It was submitted, that the legal position had 
been declared in the Second Judges case, by a majority of 7:2. 
56. It was submitted, that th,e minority view, in the Second 
Judges case, was expressed by A.M. Ahmadi and M.M. 
Punchhi, JJ., (as they then were). Learned senior counsel, 
referred to the observations recorded in the Second Judges 
G 
case by M.M. Punchhi, J.: 
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SUPREME COURT REPORTS 
[2015] 138.C.R. 
"500. Thus S.P. Gupta case. as I view it. in so far as it goes 
to permit the Executive trudging the express views of 
djsapproval or non-recommendation made by the Chief 
Justice of India. and forthat matter when appointing a High 
Court Judge the views of the Chief Justice of the High Court. 
is an act of impermissible deprival. violating the spirit of 
the Constitution. which cannot he approved. as it gives an 
unjust and unwarranted additional power to the Executive 
not originally conceived of. Resting of such power with the 
Executive would be wholly inappropriate and in the nature 
of arbitrary power. The constitutional provisions conceives, 
as it does, plurality and mutuality, but only amongst the 
constitutional functionaries and not at all in the extra-
constitutional ones in replacement' of the legitimate ones. 
The two functionaries can be likened to the children of the 
cradle, intimately connected to their common mother -
the Constitution. They recognise each other through that 
connection. There is thus more an obligation towards the 
tree which bore the fruit rather than to the fruit directly. 
Watering the fruit alone is pointless ignoring the roots of 
the tree. The view that the two functionaries must keep 
distances from each other is counter~productive. The 
relationship between the two needs to be maintained with 
more consideration. 
xxx 
xxx 
xxx 
503. A centuries old Baconian
example given to describe 
the plight of a litigant coming to a court of law comes to my 
mind. It was described that when the sheep ran for shelter 
to the bush to save itself from (ain and hail, it found itself 
deprived of its fleece when coming out. Same fate for the 
institution of the Chief Justice of India. Here it results simply 
and purely in change of dominance. In the post - S.P. Gupta 
period, the Central Government i.e. the Law Minister and 
the Prime Minister were found to be in a dominant position 
and could even appoint a Judge in the higher judiciary
SUPREME COURT ADVOCATES-ON-RECORD 
211 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
despite his being disapproved or not recommended by the 
A 
Chief Justice of India and likewise by the Chief Justice of a 
State High Court. Exception perhaps could be made only 
when the Chief Justice was not emphatic of his disapproval 
and was non-committed. His stance could in certain 
circumstance be then treated, as implied consent. These B 
would of course be rare cases. Now in place of the aforesaid 
two executive heads come in dominant position, the first 
and the second puisne, even when disagreeing with the 
Chief Justice of India. A similar position would emerge when 
appointing a Chief Justice or a Judge of the High Court. C 
Thus in my considered view the position of the institution 
of the Chief Justice being singular and unique in character 
under the Constitution is not capable of being disturbed. It 
escaped S.P. Gupta case, though in a truncated form. and D 
not to have become totally extinct. as is being done now. 
Correction was required in that regard in S.P. Gupta, but 
not effacement." 
Pointing to the opinion extracted above, it was asserted, 
that the action of the executive to put off the recommendation 
E 
made by the Chief Justice of India (disapproving the 
appointment of a person, as a Judge of the High Court) would 
amount to an act of deprival, "violating the sprit of the 
Constitution". Inasmuch as, the above demeanour/expression, 
would give an unjust
and unwarranted power to the executive, 
F 
which was not intended by the framers of the Constitution. The 
Court went on to hold, that the vesting of such power with the 
executive, would be wholly inappropriate, and in the nature of 
arbitrarx power. It was also noted, that after this Court rendered 
its decision in the First Judges case, the Law Minister and the G 
Prime Minister were found to be in such a dominant position, 
that they could appoint a Judge to the higher judiciary, despite 
his being disapproved (or, even when he was not 
recommended at all) by the Chief Justice of India (and likewise, 
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[2015] 13 S.C.R. 
A 
by the Chief Justice of the High Court). Thus, in the view of 
M.M. Punchhi, J., these details had escaped the notice of the 
authors of the First Judges case, and corrections were . 
required, in that regard', in the said judgment. Accordingly, it 
was the contention of the learned senior counsel, that one of 
B the minority Judges had also expressed the same sentiments 
as had been recorded by the majority, on the subject of primacy 
of the judiciary in matters regulated under Articles 124, 217 
and 222. 
c 
57. ltwas submitted, thatthe issue in hand was examined 
threadbare by revisiting the judgment rendered in the First 
Jutlges case, when this Court reviewed the matter through the 
Second Judges case. It was submitted, that during the 
determination of the Third Judges case, the then Attorney 
o General for India had made a statement to the Bench, that the 
Union of India, was not seeking a review or reconsideration of 
the judgment in the Second Judges case. Even though, the 
opinion tendered by this Court, consequent upon a reference 
made to the Supreme Court by the President of India under 
E Article 143, is not binding, yet a statement" was made by 
Attorney General for India, that the Union of India had accepted 
as binding, the answers of this Court to the questions set out 
in the reference. All this, according to learned counsel, stands 
recorded in paragraph 11 of the judgment rendered in the Third 
F
Judges case. According to learned senior counsel, it was 
clearly beyond the purview of the Union of India, to seek a revisit 
of the Second and Third Judges cases. 
58. Besides the position expressed in the foregoing 
G paragraphs, even according to the legal position declared by 
this Court, it was not open to the Union of India and the State 
Governments, to require this Court to examine the correctness 
of the judgments rendered in the Second ·and Third Judges 
cases. It was submitted, that such a course could only be 
H · adopted, when it was established beyond all reasonable doubt,
SUPREME COURT ADVOCATES-ON-RECORD 
213 
ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
that the previous judgments were erroneous. Insofar as the 
A 
instant aspect of the matter is concerned, learned counsel 
placed reliance on Lt. Col. Khajoor Singh v. Union of lndia29 
(Bench of 7 Judges), wherefrom learned counsel highlighted 
the following: 
"We have given our earnest consideration to the language 
B 
of Art. 226 and the two decisions of this Court referred to 
above. We are of opinion that unless there are clear and 
co_mpelling reasons, which cannot be denied. we should 
not depart from the interoretation given in these two cases C 
and indeed from any interoretation given in an earlier 
judgment of this Court. unless there is a fair amount of 
unanimity that the earlier decisions are manifestly wrong. 
This Court should not, except when it is demonstrated 
beyond all reasonable doubt that its previous ruling, given 
D 
after due deliberation and full hearing, was erroneous, go 
back upon its previous ruling, particularly on a constitutional 
issue." 
Reference was also made to the Keshav Mills Co. Ltd. 
case28, wherein a seven-Judge Bench of this Court held as 
E 
under: 
"It must be conceded that the view for which the learned 
Attorney-General contends is a reasonably possible view, 
though we must hasten to add that the view which has 
been taken by this Court in its earlier decisions is also 
F 
reasonably possible. The said earlier view has been 
followed by
this Court on several occasions and has 
regulated the procedure in reference proceedings in the 
High Courts in this country ever since the decision of this G 
Court in the New Jehangir Mills, (1960) 1 SCR 249, was 
pronounced on May 12, 1959. Besides, it is somewhat 
remarkable that no reported decision has been cited before 
us where the question about the construction of 
29 (1961) 2 SCR 828 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
s. 66(4) was considered and decided in favour of the 
Attorney-General's contention. Having carefully weighed 
the pros and cons of the controversy which have been 
pressed before us on the present occasion. we are not 
satisfied that a case has been made out to review and 
revise our decisions in the case of the New Jehangir 
Mills and the case of the Petlad Co. Ltd. (1963) Supp. 
1 SCR 871. That is why we think that the contention 
raised by Mr. Palkhivala must be upheld. In the result, 
the order passed by the High Court is set aside and the 
matter is sent back to the High Court with a direction 
that the High Court should deal with it in the light of the 
two relevant decisions in the New Jehangir Mills and 
the Petlad Co. Ltd." 
While referring to Ganga Sugar Corporation Ltd. v. State 
of Uttar Pradesh30, our attention was drawn to the following 
observations recorded by the five-Judge Bench: 
"28. We are somewhat surprised that the argument about 
the invalidity of the Act on the score that it is with respect to 
a controlled industry' dies hard, despite the lethal decision 
of this Court in Ch. Tika Ramji case [1956] SCR 393. 
Enlightened litigative policy in the country must accept as 
final the pronouncements of this Court by a Constitution 
Bench unless the subject be of such fundamental 
importance to national life or the reasoning is so plainly 
erroneous in the light of later thought that it is
wiser to be 
ultimately right rather than to be consistently wrong. Stare 
decisis is not a ritual of convenience but a rule with limited 
exceptions, Pronouncements by Constitution Benches 
should not be treated so cavalierly as to be revised 
freguently. We cannot devalue the decisions of this Court 
to brief ephemerality which recalls the opinion expressed 
by Justice Roberts of the U.S. Supreme Court in Smith v. 
H 
" (1980) 1 sec 223
SUPREME COURT ADVOCATES-ON-RECORD 
215 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Allwright 321 U.S. 649 at 669 (1944) "that adjudications of A 
the Court were rapidly gravitating 'into the same class as 
a restricted railroad ticket, good for this day and train only"'." 
Learned counsel while relying upon Gannon Dunkerley 
and Co. v. State of Rajasthan31 (Bench of 5 Judges), referred 
to the following: 
B 
"28 ...... We are not inclined to agree. The principles 
governing reconsideration of an earlier decision are settled 
by the various decisions of this Court. It has been laid 
down: "This Court should not. accept when it is C 
demonstrated beyond all reasonable doubt that its previous 
ruling. given after due deliberation and full hearing. was 
erroneous. go back upon its previous ruling. particularly 
on a constitutional issue." (See: Lt. Col. Khajoor Singh 
vs. The Union of India, (1961) 2 SCR 828). In Keshav Mills 
D 
Co. Ltd. vs. CIT, (1965) 2 SCR 908, it has been observed: 
(SCR pp. 921-22) 
" ..... but before a previous decision is pronounced to be 
plainly erroneous, the Court must be satisfied with a fair 
amount of unanimity amongst its members that a revision 
E 
of the said view is fully justified." 
xxx 
xxx 
xxx 
30. Having regard to the observations referred to above 
and the stand of the parties during the course of arguments 
before us, we do not consider it appropriate to reopen the 
F 
issues which are covered by the decision in Builders'
Association case .... " 
Having referred to the above judgments, it was submitted, 
that it was clearly misconceived for the learned counsel for the G 
respondents, to seek a reference of the controversy, to a larger 
Bench forthe re-examination of the decisions rendered by this 
Court in the Second and Third Judges cases. 
"(1993) 1 sec 364 
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[2015] 13 S.C.R. 
A 
59. Yet another basis for asserting, that the prayer made 
at the behest of the learned counsel representing the 
respondents for revisiting the judgments rendered by this Court 
in the Second and Third Judges cases, was canvassed on 
the ground that the observations recorded by this Court in the 
B 
Samsher Singh case11 (in paragraph 149) could neither be 
understood as stray observations, nor be treated as obiter 
dicta. The reasons expressed by the learned senior counsel 
on the above issue were as follows: 
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"(i) In the other case relating to the independence of the 
judiciary (re transfer of High Court Judges)- UOI vs. Sankal 
Chand Seth, (1977) 4 sec 193 (5J) - as to wtJether a 
Judge of a High Court can be transferred to another High 
Court without his consent, it was deci~ed by majority that 
he could be: the majority consisted of Justice Chandrachud, 
Justice Krishna Iyer and Justice Murtaza Fazal Ali. 
(ii) The judgment of Justice Krishna Iyer (on behalf of 
himself and Justice Murtaza f azal Ali in Sankal Chand Seth 
-
[with which Bhagwati, J. said he was "entirely in 
agreement"] reads as follows (paras 115-116): 
"115. The next point for consideration in this appeal is as 
to the nature, ambit and scope of consultation, as appearing 
in Article 222(11 of the Constitution, with the Chief Justice 
of India. The consultation, in order to fulfil its normative 
function in Article 222(1 ), must be a
real, substantial and 
effective consultation based on full and proper materials 
placed before the Chief Justice by the Government. Before 
giving his opinion the Chief Justice of India would naturally 
take into consideration all relevant factors and may 
informally ascertain from the Judge concerned if he has 
any real personal difficulty or any humanitarian ground on 
which his transfer may not be directed. Such grounds may 
be of a wide range including his health or extreme family 
factors. It is not necessary for the Chief Justice to issue
SUPREME COURT ADVOCATES-ON-RECORD 
217 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
formal notice to the Judge concerned but it is sufficient -
A 
although it is not obligatory- if he ascertains these facts 
either from the Chief Justice of the High Court or from his 
own colleagues or through any other means which the 
Chief Justice thinks safe, fair and reasonable. Where a 
proposal of transfer of a Judge is made the Government 
B · 
must forward every possible material to the Chief Justice 
so that he is in a position to give an effective opinion. 
Secondly, although the opinion of the Chief Justice of India 
may not be binding on the Government it is entitled to great 
weight and is normally to be accepted by the Government C 
because the power under Article 222 cannot be exercised 
whimsically 
or 
arbitrarily. 
In 
the 
case 
of 
Chandramouleshwar Prasad v. 'Patna High Court, (1969) 
3 sec 36, while interpreting the word "consultation" as D 
appea.ring in Article 233 of the Constitution this Court 
observed as follows: 
"Consultation with the High Court under Article 233 is not 
an empty formality. So far as promotion of officers to the 
ca9re of District Judges is concerned the High Court is 
E 
best fitted to adjudge the claims and merits of persons to 
be .considered for promotion .... We cannot accept this. 
Consultation or deliberation is not complete or effective 
. before the parties thereto make their respective points of 
view known to the other or
others and discuss and examine 
F 
the relative merits of their views. If one party makes a 
proposal to the other who has a counter proposal in his 
mind which is not communicated to the prosper the 
direction to give effect to the counter proposal without 
anything more, cannot be said to have been issued after G 
consultation .. 
In Samsher Singh's case, AIR 1974 SC 2192, one of us 
has struck the same chord. It must also be borne in mind 
that if the Government departs from the opinion of the Chief 
Justice of India it has to justify its action by giving cogent 
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[2015) 13 S.C.R. 
A 
and convincing reasons for the same and, if challenged, 
to prove to the satisfaction of the Court that a case was 
made out for not accepting the advice of the Chief Justice 
of India. It seems to us that the word, 'consultation' has 
B 
c 
been used in Article 222 as a matter of constitutional 
courtesy in view of the fact that two very high dignitaries 
are concerned in the matter, namely, the President and 
the Chief Justice of India. Of course, the Chief Justice has 
no power of veto, as Dr. Ambedkar explained in the 
Constituent Assembly." 
(iii) Justice Chandrachud (in the course of his judgment) 
agreeing - in paragraph 41 of Sankalchand Seth followed 
Shamsher Singh (para 149)." 
Based on the aforesaid, it was the assertion of the 
0 
learned senior counsel that even if the contention advanced 
by the counsel for the respondents was to be accepted, namely, 
that the decisions rendered by this Court in the above two cases 
were required to be re-examined, by a reference to a larger 
Bench, still the observations recorded in paragraph 149 in the 
E Samsher Singh case11 would continue to hold the field, as the 
review of the same had not been sought. 
V. THE CONSIDERATION: 
I. 
F 
60. In the scheme of the Constitution, the Union judiciary 
has been dealt in Chapter IV of Part V, and the High Courts in 
the States, as well as, the Subordinate-courts have been dealt 
with in Chapters V and VI respectively, of Part VI. The
provisions of Parts V and VI of the Constitution, with reference 
G to the Union and the States judiciaries including Subordinate-
courts, have arisen for interpretative determination by this 
Court, on several occasions. We may chronologically notice 
the determination rendered by this Court, with reference to the 
above Parts, especially those dealing with the executive 
H
SUPREME COURT ADVOCATES-ON-RECORD 
219 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
participation, in the matters relating to the Union judiciary, the A 
High Courts in the States, and the Subordinate-courts. During 
the course of hearing, our attention was invited to the following: 
(i) Samsher Singh v. State of Punjab, (1974) 2 SCC 831 -
rendered by a five-Judge Bench, 
(ii) Union of India v. Sankalchand Himatlal Sheth (1977)4 SCC 
193 - rendered by a five-Judge Bench, 
(iii) S.P. Gupta v. Union of India, 1981 Supp SCC 87 - rendered 
by a seven-Judge Bench, 
B 
(iv) Supreme CourtAdvocates-on-RecordAssociation v. Union C 
of India, (1993) 4 SCC 441 - rendered by a nine-Judge Bench, 
and 
(v) Re: Special Reference No.1 of 1998, (1998) 7 SCC 739-
rendered by a nine-Judge Bench. 
This Court on no less than five occasions, has examined 
D 
the controversy which we are presently dealing with, through 
Constitution Benches. In the Samsher Singh case 11 , it was 
concluded, that in all conceivable cases, consultation with the 
highest dignitary in the Indian judiciary-the Chief Justice of E 
India, will and should be accepted by the Government of India, 
in matters relatable to the Chapters and Parts of the 
Constitution referred to above. In case, it was not so accepted, 
the Court would have an opportunity to examine, whether any 
other extraneous circumstances had entered into the verdict 
F 
of the concerned Minister or the Council of Ministers (headed 
by the Prime
Minister), whose views had prevailed in ignoring 
the counsel given by the Chief Justice of India. This Court 
. accordingly concluded, that in practice, the last word must 
belong to the Chief Justice of India. The above position was G 
also further clarified, that rejection of the advice tendered by 
the Chief Justice of India, would ordinarily be regarded as 
prompted by oblique considerations, vitiating the order. In a 
sense of understanding, this Court in the Samsher Singh case 11 , 
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A 
is seen to have read the term "consultation" expressed in 
Articles 124 and 217 as conferring primacy to the opinion 
tendered by the Chief Justice. When the matter came to be 
examined in the Sankalchand Himatlal Sheth cases, with 
reference to Article 222, another Constitution Bench of this 
B 
Court, reiterated the conclusion drawn in the Samsher Singh 
case11 , by holding, that in all conceivable cases, "consultation" 
with the Chief Justice of India, should be accepted, by the 
Government of India. And further, that in the event of any 
departure, it would be open to a court to examine whether, any 
C other circumstances had entered· into the verdict of the 
executive. More importantly, this Court expressly recorded an 
ardent hope, that the exposition recorded in the Samsher 
Singh case11 , would not fall on deaf ears. No doubt can be 
0 
entertained, that yet again, this Court read the term 
"consultation" as an expression, conveying primacy in the 
matter under consideration, to the view expressed by the Chief 
Justice. The solitary departure from the above interpretation, 
was recorded by this Court in the First Judges case, wherein 
E it came to be concluded, that the meaning of the term 
"consultation" could not be understood as "concurrence". In 
other words, it was held, thatthe opinion tendered by the Chief 
Justice of India, would not be binding on the executive. The 
function of appointment of Judges to the
higher judiciary, was .. 
F described as an executive function, and it was held by the 
majority, that the ultimate powerof appointment, unquestionably 
rested with the President. The opinion expressed by this Court 
in the First Judges case, was doubted in the Subhash Sharma 
case4, which led to the matter being re-examined in the Second 
G Judges case, at the hands of a nine-Judge Bench, which while 
setting aside the judgment rendered in the First Judges case, 
expressed its opinion in consonance with the judgments ·. 
rendered in the Samsher Singh case11 and the Sankalchand 
Himatlal Sheth cases. This Court expressly concluded, in the 
H Second Judges case, that the term "consultation" expressed
SUPREME COURT ADVOCATES-ON-RECORD 
221 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
in Articles 124, 217 and 222 had to be read as vesting primacy A 
with.the opinion expressed by the Chief Justice of India, based 
on a participatory consultative process. In other words, in 
matters involving Articles 124, 217 and 222, primacy with 
reference to the ultimate power of appointment (or transfer) 
was held, to be vesting with the judiciary. The above position 
B 
came to be reconsidered in the Third Judges case, by a nine-
Judge Bench, wherein the then learned Attorney General for 
India, made a statement, that the Union of India was not seeking 
a review, or reconsideration of the judgment in the Second 
Judges case, and further, that the Union of India had accepted C 
the said judgment, and would treat the decision of this Court in 
the Second Judges case as binding. It is therefore apparent, 
that the judiciary would have primacy in matters regulated by 
Articles 124, 217 and 222, was conceded, by the Union of D 
India, in the Third Judges case. 
61. We have also delineated hereinabove, the views of 
the Judges recorded in the First Judges case, which was 
rendered by a majority of 4:3. Not only, that the margin was 
extremely narrow, but also, the views expressed by the Judges 
E 
were at substantial variance, on all the issues canvassed 
before the Cm, rt. The primary reason for recording the view of 
each of the Judges in the First Judges case herein before, was 
to
demonstrate differences in the deductions, inferences and 
the eventual outcome .. As against the above, on a 
F 
reconsideration of the matters by a larger Bench in the Second 
Judges case, the decision was rendered by a majority of 7:2. 
Not only was the position clearly expressed, there was hardly 
any variance, on the issues canvassed. So was the position 
with the Third Judges case, which was a unanimous and 
G 
unambiguous exposition of the controversy. We,.therefore, find 
ourselves not inclined to accept the prayer for a review of the 
Second and Third Judges cases. 
62. Having given pointed and thoughtful consideration 
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[2015] 13 S.C.R. 
A to the proposition canvassed at the hands of the learned 
counsel for the respondents, we are constrained to conclude, 
that the issue of primacy of the judiciary, in the matter of 
appointment and transfer of Judges of the higher judiciary, 
having been repeatedly examined, the prayer for a re-look/ 
B reconsideration of the same, is just not made out. This Court 
having already devoted so much time to the same issue, should 
ordinarily not agree to re-examine the matter yet again, and 
spend more time for an issue, already well thrashed out. But 
time has not been the constraint, while hearing the present 
C cases, for we have allowed a free debate, and have taken 
. 
. 
upon ourselves the task of examining the issues. canvassed. 
Yet, the remedy of review must have some limitations. Mr. Fali 
S. Nariman, learned senior counsel, is right, in his submission, 
0 
that the power of review was exercised and stood expended 
when the First Judges case was reviewed by a larger Bench 
in the Second Judges case. And for sure, it was wholly 
unjustified for the Union of India, which had conceded during 
the course of hearing of the Third Judges case, that it had 
E accepted as binding, the decision rendered in the Second 
Judges case, to try and reagitate the matter all over again. 
The matter having been revisited, and the position having been 
conceded by the Union of India, it does not lie in the mouth of 
the Union of India, to
seek reconsideration of the judicial 
F declaration, in the Second and Third Judges cases. Therefore, 
as a proposition of law, we are not inclined to accept the prayer 
of the Union of India and the other respondents, for a re-look 
or review of the judgments rendered in the Second and Third 
Judges cases. All the same, as we have indicated at the 
G beginning of this order, because the matter is of extreme 
importance and sensitivity, we will still examine the merits of 
the submissions C\dvanced by learned counsel. 
II. 
H 
63. The most forceful submission advanced by the
SUPREME COURT ADVOCATES-ON-RECORD 
223 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
learned Attorney General, was premised on the Constituent A 
Assembly debates .. In this behalf, our attention was invited to 
the views expressed by K.T. Shah, K.M. Munshi, Tajamul 
Husain, Alladi Krishnaswami Aayar, Ananthasayanam 
Ayyangar and Dr. B.R. Ambedkar. It was pointed out by the 
learned Attorney General, that the Members of the Constituent B 
Assembly feared, that the process of selection and 
appointment of Judges to the higher judiciary should not be 
exclusively vested with the judiciary. The process of 
appointment of Judges by Judges, it was contended, was 
described as lmperium in lmperio, during the Constituent C 
Assembly debates. In responding to the above observations, 
Dr. B.R. Ambedkar while referring to the contents of Article 
122 (which was renumbered as Article 124 in the Constitution), 
had assured the Members of the Constituent Assembly, that D 
the drafted Article had adopted the middle course, while 
refusing to create an lmperium in lmperio, in such a manner, 
that the "independence of the judiciary" would be fully 
preserved. The exact text of the response of Dr. B.R. Ambedkar, 
has been extracted in paragraph 30 above. 
E 
64. It was the contention of the learned Attorney General, 
that despite the clear intent expressed during the Constituent 
Assembly debates, not to create an lmperium in lmperio, the 
Second and Third Judges cases had done just
that. It was 
submitted, that in the process of selection and appointment of F 
Judges to the higher judiciary, being followed since 1993, 
Judges alone had been appointing Judges. It was also 
contended, that the Constitution contemplates a system of 
checks and balances, where each pillar of governance is 
controlled by checks and balances, exercised by the other two G 
pillars. It was repeatedly emphasized, that in the present system 
of selection and appointment of Judges to the higher judiciary, 
the executive has no role whatsoever. It was accordingly the 
contention of the respondents, thatthe mannerin which Articles 
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[2015] 13S.C.R. 
A 
124, 217 and 222 had been interpreted in the Second and 
Third Judges cases, fell foul of the intent of the Constituent 
Assembly. This, according to the learned counsel for the 
respondents, was reason enough, to revisit and correct, the 
view expressed in the Second and Third Judges cases. 
B 
65. It is not possible for us to accept the contention 
advanced at the hands of the learned counsel for the 
respondents. Consequent upon the pronouncement of the 
judgments in the Second and Third Judges cases, a 
c Memorandum of Procedure for Appointment of Judges and 
Chief Justices to the Higher Judiciary was drawn by the Ministry 
of Law, Justice and Company Affairs on 30.6.1999. The 
Memorandum of Procedure aforementioned, is available on 
the website of the above Ministry. The above Memorandum of 
o Procedure has been examined by us. In our considered view, 
the Memorandum of Procedure provides for a participatory 
role, to the judiciary as well as the political-executive. Each of 
the above components are responsible for contributing 
information, material and data, with reference to the individual 
E under consideration. While the judicial contribution is 
responsible for evaluating the individual's professional ability, 
the political-executive is tasked with the obligation to provide 
details about the individual's character and antecedents. Our 
analysis of the Memorandum of Procedure reveals, that the 
F same contemplates
inter alia the following steps for selection 
of High Court Judges: 
Step 1: The Chief Justice of the concerned High Court has 
the responsibility of communicating, to the Chief Minister of 
G the State concerned, names of persons to be selected for 
appointment. Details are furnished to the Chief Minister, in 
terms of the format appended to the memorandum. 
Additionally, if the Chief Minister desires to recommend 
name(s) of person(s) for such appointment, he must forward 
H the same to the Chief Justice for his consideration.
SUPREME COURT ADVOCATES-ON-RECORD 
225. 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Step 2: Before forwarding his recommendations to the Chief A 
Minister, the Chief Justice must consult his.senior colleagues 
comprised in the High Courtcollegium, regarding the suitability 
of the names proposed. The entire consultation must be in 
writing, and these opinions must be sent to the Chief Minister 
along with the Chief Justice's recommendation. 
B 
Step 3: Copies of recommendations made by the Chief 
Justice of the High Court, to the Chief Minister of the concerned 
State, require to be endorsed, to the Union Minister of Law 
and Justice, to the Governor of the concerned State, and to c 
the Chief Justice of India. 
Step 4: Consequent upon the consideration of the names 
proposed by the Chief Justice, the Governor of the concerned 
State, as advised by the Chief Minister, would forward his 
recommendation along with the entire set of papers, to the 
D 
Union Minister for Law and Justice. 
Step 5: The Union Minister for Law and Justice would, at his 
own, consider the recommendations placed before him, in the 
light of the reports, as may be available to the Government, in 
E 
respect of the names under consideration. The proposed 
names, would be subject to scrutiny at the hands of the 
Intelligence Bureau, through the Union Ministry of Home Affairs. 
The Intelligence Bureau would opine.on the integrity of the 
individuals under consideration. 
F 
Step 6: The entire
material, as is available with the Union 
Minister for Law and Justice, would then be forwarded to the 
Chief Justice of India for his advice. The Chief Justice of India 
would, in consultation with his senior colleagues comprised in G 
the Supreme Court collegium, form his opinion with regard to 
the persons recommended for appointment. 
Step 7: Based on the material made available, and 
additionally the views of Judges of the Supreme Court (who 
were conversant with the affairs of the concerned High Court), 
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[2015] 13 S.C.R. 
A 
the Chief Justice of India in consultation with his collegium of 
Judges, would forward his recommendation, to the Union 
Minister for Law and Justice. The above noted views of Judges 
of the Supreme Court, conversant with the affairs of the High 
Court, were to be obtained in writing, and are to be part of the 
B 
compilation incorporating the recommendation. 
Step 8: The Union Minister for Law and Justice would then 
put up the recommendation made by the Chief Justice of India, 
to the Prime Minister, who would examine the entire matter in 
c consultation with the Union Minister for Law and Justice, and 
advise the President, in the matter of the proposed 
appointments. 
66. We shall venture to delineate the actual consideration 
at the hands of the executive, in the process of selection and 
D appointment of High Court Judges, in terms of the 
. Memorandum of Procedure, as well as, the actual prevailing 
practice. 
67. Steps 1 to 3 of the Memorandum of Procedure reveal, 
E that names of persons to be selected for appointment are 
forwarded to the Chief Minister and the Governor of the 
concerned State. On receipt of the names, the Chief Minister 
discharges the onerous responsibility to determine the 
suitability of the recommended candidate(s). Specially the 
F suitability of the candidate(s), pertaining to integrity, social 
behaviour, political involvement and the like. Needless to 
mention, that the Chief Minister of
the concerned State, has 
adequate machinery for providing such inputs. It would also 
be relevant to mention, that the consideration at the hands of 
G the Governor of the concerned State, is also not an empty 
formality. For it is the Governor, through whom the file 
processed by the Chief Minister, is forwarded to the Union 
Minister for Law and Justice. There have been occasions, when 
Governors of the concerned State, have recorded their own 
H
SUPREME COURT ADVOCATES-ON-RECORD 
227 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
impressions on the suitability of a recommended candidate, 
A 
in sharp contrast with the opinion expressed by the Chief 
Minister. Whether or not the Governors participate in the above 
exercise, is quite a separate matter. All that needs to be 
recorded is, that there are instances where Governors have 
actively participated in the process of selection of Judges to 
B 
High Courts, by providing necessary inputs. Record also bears 
testimony to the fact, that the opinion expressed by the 
Governor, had finally prevailed on a few occasions. 
68. The participation of the executive, with reference to c 
the consideration of a candidate recommended by the Chief 
Justice of High Court, continues further at the level of the 
Government of India. The matter of suitability of a candidate, 
is also independently examined at the hands of the Union of 
Minister for Law and Justice. The Ministry of Law and Justice D 
has a standard procedure of seeking inputs through the Union 
Ministry of Home Affairs. Such inputs are made available by 
the Union Ministry for Home Affairs, by having the integrity, 
social behaviour, political involvement and the like, examined 
through the Intelligence Bureau.After the receipt of such inputs, 
E 
and the examination of the proposal atth"e hands of the Union 
Minister for Law and Justice, the file proceeds to the Chief 
Justice of India, along with the details
received from the 
quarters referred to above. 
69. After the Chief Justice of India, in consultation with 
F 
his collegium of Judges recommends the concerned candidate 
for elevation to the High Court, the file is processed for a third 
time, by the executive. On this occasion, at the level of the 
Prime Minister of India. During the course of the instant G 
consideration also, the participation of the executive is not an 
empty formality. Based on the inputs available to the Prime 
Minister, it is open to the executive, to yet again return the file 
to the Chief Justice of India, for a reconsideration of the 
proposal, by enclosing material which may have escaped the H
228 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
notice of the Chief Justice of India and his collegium of Judges. 
There have been occasions, when the file returned to the Chief 
Justice of India for reconsideration, has resulted in a revision 
of the view earlier taken, by the Chief Justice of India and his 
collegium of Judges. It is therefore clear, that there is a complete 
B comity of purpose between the judiciary and the political-
executive in the matter of selection and appointment of High 
Court Judges. And between them, there is clear transparency 
also. As views are exchanged in writing, views and counter-
views, are in black and white. Nothing happens secretly, without 
C the knowledge of the participating constitutional functionaries. 
70. It is not necessary for us to delineate the participation 
of the judiciary in the process of selection and appointment of 
Judges to the High Courts. The same is apparent from the 
o steps contemplated in the Memorandum of Procedure, as have 
been recorded above. Suffice it to state, that it does not lie in 
the mouth of the respondents to contend, that there is no 
executive participation in the process of selection and 
appointment of Judges to High Courts. 
E 
71. The Memorandum of Procedure, for selection of 
Supreme Court Judges, provides for a similar participatory 
role to the judiciary and the political-executive. The same is 
not being analysed herein, for reasons of brevity. Suffice it to 
F 
state, that the same is
also a joint exercise, with a similar 
approach. 
72. For the reasons recorded by us hereinabove, it is 
not possible for us to accept, that in the procedure 
contemplated under the Second and Third Judges cases, 
G Judges at their own select Judges to the higher judiciary, or 
that, the system of lmperium in lmperio has been created for 
appointment of Judges to the higher judiciary. It is also not 
possible for us to accept, that the judgment in the Second 
Judges case, has interfered with the process of selection and 
H
SUPREME COURT ADVOCATES-ON-RECORD 
229 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
appointment of Judges to the higher judiciary, by curtailing the 
A 
participatory role of the executive, in the constitutional scheme 
· of checks and balances, in view of tbe role of the executive 
fully described above. We find no merit in the instant contention 
advanced at the hands of the respondents. 
Ill. 
73. The learned Attorney General placed emphatic 
reliance on the Constituent Assembly debates. It was sought 
B 
to be asserted, that for an apposite understanding of the 
provisions of the Constitution, it was imperative to refer to the C 
Constituent Assembly debates, which had led to formulating 
and composing of the concerned Article(s). Reliance was 
accordingly placed on the debates, which had led to the drafting 
of Article 124. It was submitted, that the conclusions drawn by 
this Court, in the Second Judges case, overlooked the fact, 
D 
that what had been expressly canvassed and raised by various 
Members of the Constituent Assembly, and rejected on due 
consideration, had been adopted by the judgment in the 
Second Judges case. It was, therefore, the contention of the 
learned Attorney General, that the judgments rendered in the 
E 
Second and Third Judges cases recorded a view, diagonally 
opposite the intent and resolve of the Constituent Assembly. 
74. For reasons of brevity, it is not essential for us to 
extract herein the amendments sought by some of the
eminent 
F 
Members of the Constituent Assembly in the draft provision 
(to which our attention was drawn). At this stage, we need 
only to refer to paragraph 772 (already extracted above), from 
the Indra Sawhney case9 , in order to record, that it is not 
essential to refer to individual views of the Members, and that, 
G 
the view expressed at the end of the debate by Dr. B.R. 
Ambedkar, would be sufficient to understand what had 
prevailed, and why. Suffice it to state, that during the course of 
the Constituent Assembly debates, it was expressly proposed 
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230 
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[2015] 13 S.C.R. 
A 
that the term "consultation" engaged in Articles 124 and 217, 
be substituted by the word "concurrence". The proposed 
amendment was ho~ever rejected by Dr. B.R. Ambedkar.-
Despite the above, this Court in the Second and Third Judges 
cases had interpreted the word "consultation" in clause (2) of 
B Article 124, and clause (1) of Article 217, as vesting primacy 
in the judiciary, something that was expressly rejected, during 
the Constituent Assembly debate. And therefore, the contention 
advanced on behalf of the respondents was, that this Court 
had interpreted the above provisions, by turning the Constituent 
C Assembly's intent and resolve, on its head. It was submitted, 
that the erroneous interpretation recorded in the Second 
Judges case, was writ large, even on a cursory examination 
of the debates. 
D 
E 
F 
G 
H 
75. We are of the view, that it would suffice, for examining 
the above contention, to extract herein a relevant part of the 
response of Dr. B.R. Ambedkar, to the above noted 
amendments, in the provisions noted above: 
"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 
Judges of the Supreme Court to be appointed? Now, 
grouping the different amendments which are related to 
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 to 
the confirmation of two-thirds vote by Parliament; and the 
third suggestion is that they should be appointed in 
consultation with the Council of States. 
With regard to this matter, I quite agree that the point raised 
is of the greatest importance. There can be no difference 
of opinion in the House that our judiciary must both be
SUPREME COURT ADVOCATES-ON-RECORD 
231 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
independent of the executive and must also be competent A 
in itself. And the question is how these two objects could 
be secured. There are two different ways in which this 
matter is governed in other countries. In Great Britain the 
· appointments are made by the Crown, without any kind of 
limitation whatsoever, which means by the executive of the 
B 
day. There is the opposite system in the United States 
where, for instance, offices of the Supreme Court as well 
as other offices of the State shall be made only with the 
concurrence of the Senate in the United States. It seems 
to me. in the circumstances in which we live today; where C 
the sense of responsibility has not grown to the same extent 
to which we find it in the United States. it would be 
·dangerous to leave the appointments to be made by the 
President. without any kind of reservation or limitation that 
D 
is to say merely on the advice of the executive of the day. 
Similarly. it seems to me that to make every appointment 
which the executive wishes to make subject to the 
concurrence of the Legislature js also not a very suitable 
provision. Apart fro~ its being cumbrous. it also involves 
E 
the possibility of the appointment being influenced by 
political pressure and political considerations. The draft 
article. therefore. steers a middle course. It does not make 
the President the supreme and the absolute
authority in 
the matter of making appointments. It does not also import 
F 
the influence of the Legislature. The provision in the article 
is that there should be consultation of persons who are ex 
hypothesi well gualified 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. 
G 
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 
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232 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
personally feel no doubt that the Chief Justice is a very 
eminent. person. But after all the Chief Justice is a man 
with all the failings. all the sentiments and all the prejudices 
which we as common people have: and I think. to allow 
the Chief Justice practically a veto upon the appointment 
B 
of judges is really to transfer the authority to the Chief 
Justice which we are not prepared to vest in the President 
or the Government of the day. I therefore. think that that is 
also a dangerous proposition." 
C 
The first paragraph extracted hereinabove reveals, that 
there were three proposals on the issue of appointment of 
Judges to the Supreme Court. The first proposal was, that the 
Judges of the Supreme Court should not be appointed by the 
President in "consultation" with the Chief Justice of India, but 
D should be appointed with the "concurrence" ofthe Chief Justice 
of India. The second proposal was, that like in the United 
States, appointments of Judges to the Supreme Court, should 
be made by the President, subject to confirmation by the 
Parliament, through a two-thirds majority. The third proposal 
E was, that Judges of the Supreme Court, should be appointed 
by the President in "consultation" with the Rajya Sabha. 
76. The response of Dr. B.R. Ambedkar to all the 
suggestions needs a very close examination, inasmuch as, 
even though rightfully pointed out by the Attorney General, and 
F the learned counsel
representing the respondents, all the 
issues which arise for consideration in the present controversy, 
were touched upon in the above response. Before dwelling 
upon the issue, which strictly pertained to the appointment of 
G Judges, Dr. B.R. Ambedkar expressed in unequivocal terms, 
that the unanimous opinion of the Constituent Assembly was, 
that "our judiciary must be independent of the executive". The 
same sentiment was expressed by Dr. B.R. Ambedkar while 
responding to K.T. Shah, K.M. Munshi, Tajamul Husain,Alladi 
H Krishnaswami Aayar and Anathasayanam Ayyangar (extracted
SUPREME COURT ADVOCATES-ON-RECORD 
233 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
in paragraph 30 above) wherein he emphasized, that" ... there A 
is no doubt that the House in general, has agreed that the 
independence of the Judiciary, from the Executive should be 
made as clear and definite as we could make it by law ... " The 
above assertion made while debating the issue of appointment 
of Judges to the Supreme Court, effectively acknowledges, 
B 
that the appointment of Judges to the higher judiciary, has a 
direct nexus to the issue of"independence of the judiciary". It 
therefore, does not lie in the mouth of the respondents to assert, 
that the subject of "appointment" would not fall within the domain/ 
realm of "independence of the judiciary". 
C 
77. While responding to the second and third proposals 
referred to above, Dr. B.R. Ambedkar, cited the manner of 
appointment of Judges in Great Britain, and pointed out, that 
in the United Kingdom appointments were made by the Crown, 
D 
without any kind of limitation, and as such, fell within the 
exclusive domain of the executive. Referring to the system 
adopted in the United States, he noted, that Judges of the 
Supreme Court in the United States, could only be appointed 
with the "concurrence" of the Senate. Suffice it to state, that 
E 
the latter reference was to a process of appointment which fell 
within the domain of the legislature (because the Senate is a 
legislative chamber in the bicameral
legislature of the United 
States, which together with the U.S. Hou?e of Representatives, 
make up the U.S. C.ongress). It is important to notice, that he 
F 
rejected both the systems, where appointments to the higher 
judiciary were made by the executive, as well as, by the 
legislature. Dr. B.R. Ambedkar therefore, very clearly 
concluded the issue by expressing, that it would be improper 
to leave the appointments of Judges to the Supreme Court, to 
G 
be made by the President-the executive (i.e., on the aid and 
advice of the Council of Ministers, headed by the Prime 
M[nister). In the words of Dr. B.R. Ambedkar, it would be 
dangerous to leave such appointments in the hands of the 
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executive of the day, without any kind of reservation and 
limitation. We are therefore satisfied, that the word 
"consultation" expressed in Articles 124 and 217, was 
contemplated by the Constituent Assembly, to curtail the free 
will of the executive. If that was the true intent, the word 
B "consultation" could never be assigned its ordinary dictionary 
meaning. And Article 124 (or Article 217) could never be meant 
to be read with Article 7 4. It is therefore not possible for us to 
accept, that the main voice in the matter of selection and 
appointment of Judges to the higher judiciary was that of the 
C President (expressed in the manner contemplated under Article 
74). Nor is it possible to accept that primacy in the instant 
matter rested with the executive. Nor that, the judiciary has 
been assigned a role in the matter, which was not contemplated 
D by the provisions of the Constitution. It is misconceived for the 
respondents to assert, that the determination of this Court in 
the Second and Third Judges cases was not interpretative in 
nature, but was factually legislative. Dr. B.R. Ambedkar, 
therefore rejected, for the same reasons, the proposal that 
E appointments of Judges to the Supreme Court should be made 
by the legislature. But the reason he expressed in this behalf 
was most apt, namely, the procedure of appointing Judges, 
by seeking a vote of approval by on~ or the other (or both) 
House(s) of
Parliament would be cumbersome. More 
F importantly, Dr. B.R.Ambedkarwas suspicious and distrustful 
of the possibility of the appointments being directed and 
impacted by "political pressure" and "political consideration", 
if the legislature was involved. We are therefore satisfied, that 
when the Constituent Assembly used the term "consultation", 
G in the above provisions, its intent was to limit the participatory 
role of the political-executive in the matter of appointments of 
Judges to the higher judiciary. 
· 
78. It was the view of Dr. B.R. Ambedkar, that the draft 
H article had adopted a middle course, by not ryiaking th·e
SUPREME COURT ADVOCATES-ON-RECORD 
235 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
President-the executive "the supreme and absolute authority A 
in the matter of making appointments" of Judges. And also, 
by keeping out the legislators for their obvious political 
inclinations and biases, which render them unsuitable for 
shouldering the responsibility. We are therefore of the view, 
that the judgments in the Second and Third Judges cases 
B 
cannot be blamed, for not assigning a dictionary meaning to 
the term "consultation". If the real purpose sought to be 
achieved by the term "consultation" was to shield the selection 
and appointment of Judges to the higher judiciary, from 
executive and political involvement, certainly the term 
C 
"consultation" was meant to be understood as something more 
than a mere "consultation". 
79. It is clear from the observations of Dr. B.R. Ambedkar, 
that the President - the executive was required by the D 
provisions of the draft article, to consult" ... persons, who were 
ex hypothesi, well qualified to give proper advice on the matter 
of ~ppointment of Judges to the Supreme Court." The 
response of Dr. B.R. Ambedkar in a singular paragraph 
(extracted above), leaves no room for any doubt that Article 
E 
124, in the manner it was debated, was clearly meant to 
propound, that the matter of "appointments of Judges was an 
integral part of the "independence of the judiciary". The process 
contemplated for appointment of Judges,
would therefore have 
to be understood, to be such, as would be guarded/shielded 
F 
from political pressure and political considerations. 
80. The paragraph following the one, that has been 
interpreted in the foregoing paragraphs, also leaves no room 
for any doubt, that the Constituent Assembly did not desire to G 
confer the Chief Justice of India, with a veto power to make 
appointments of Judges. It is therefore that a. consultative 
process was contemplated under Article 124, as it was 
. originally drafted. The same mandated consultation not only 
with the Chief Justice of India, but with other Judges of the 
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Supreme Court and the High Courts. Viewed closely, the 
judgments in the Second and Third Judges cases, were 
rendered in a manner as would give complete effect to the 
observations made by Dr. B.R. Ambedkar with reference to 
Article 124 (as originally incorporated). It is clearly erroneous 
B for the respondents to contend, that the consultative process 
postulated between the President with the other Judges of the 
Supreme Court or the High Courts in the States, at the 
discretion of the President, had been done away with by the 
Second and Third Judges cases. Nothing of the sort. It has 
C been, and is still open to the President, in his unfettered 
wisdom, to the consultation indicated in Article 124. 
Additionally, it is open to the President, to rely on the same, 
during the course of the mandatory "consultation" with the Chief 
0 
Justice of India. The above, further demonstrates the executive 
role in the selection of Judges to the higher judiciary, quite 
contrary to the submission advanced on behalf of the 
respondents. We are satisfied, t.hat the entire discussion and 
logic expressed during the debates of the Constituent 
E Assembly, could be given effect to, by reading the term 
"consultation" as vesting primacy with the judiciary, on the 
matter being debated. We are also of the view, that the above 
debates support the conclusions drawn in the judgments of 
·which review is being sought. For the reasons
recorded 
F hereinabove, we find no merit in the submissions advanced 
by the learned counsel for the respondents based on the 
Constituent Assembly debates. 
IV. 
G 
81. The consideration in hand, also has a historic 
perspective. We would venture to examine the same, from 
experiences g~ined, after the Constitution became operational 
i.e., after the people of this country came to govern themselves, 
in terms of the defined lines, and the distinctiveness of 
H functioning, set forth by the arrangement and allocation of
SUPREME COURT ADVOCATES-ON-RECORD 
237 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
• 
responsibilities, expressed in the Constitution. In this behalf, 
A 
it would be relevant to highlight the discussion which took place 
in Parliament, when the Fourteenth Report of the Law 
Commission on Judicial Reform (1958) was tabled for 
discussion, in the Raj ya Sabha on 24-25.11.1959. Replying 
to the debate on 24.11.1959, Govind Ballabh Pant, the then 
B 
Union Home Minister's remarks, as stand officially recorded, 
were inter a/ia as under: 
"Sir. so far as appointments to the Supreme Court go, since 
1950 when the Constitution was brought into force, nineteen C 
Judges have been appointed and everyone of them was 
so appointed on the recommendation of the Chief Justice 
of the Supreme Court. I do not know if any other alternative 
can be devised for this purpose. The Chief Justice of the 
Supreme Court is, I think, rightly deemed and believed to 
D 
be familiar with the merits of his own colleagues and also 
of the Judges and advocates who hold leading positions in 
different States. So we have followed the advice of the 
most competent. dependable and eminent person who 
could guide us in this matter. 
E 
Similarly. Sir. so far as High Courts are concerned. since 
1950, 211 appointments have been made and out of these 
except one. i.e .. 210 out of 211 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 
F 
accepted by Government had the support of all persons 
who were connected with this matter. As Hon. Members 
are aware under I think article 217 the Chief Justice of 
the High Court: the Chief Minister of the State concerned 
and the Governor first deal with these matters. Then they G 
come to the Home Ministry and are referred by the Ministry 
to the Chief Justice of India and whatever suggestions or 
comments he makes are taken into consideration and if 
necessary. a reference is again made to the Chief Minister 
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and the High Court. But as I said. these 196 appointments 
were made in 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 ... " 
The remarks made by Ashoke Kumar Sen, the then Union 
8 
Law Minister on 25.11.1959, during the course of the debate 
pertaining to the Law Commission Report, also need a 
reference: 
" ..... it is my duty to point out to the honourable House again. 
C 
as I did in the Lok Sabha when the Law Commission first 
sent an interim report - call it an interim report or some 
report before the final one - pointing out that Judges have 
been appointed on extraneous considerations. we gave 
them the facts and figures concerning all the appointments 
o 
made since 1950. We drew their pointed attention to the 
fact that, as the Home Minister pointed out yesterday, 
except in the case of one Judge out of the 176 odd Judges 
appointed since 1950, all were appointed on the advice of 
the Chief Justice. With regard to the one there was 
E 
difference of opinion between the local Chief Justice and 
the Chief Justice of India and the Government accepted 
the advice of the loq:il Chief Justice rather than the Chief 
Justice of India. But it was not their nominee. We should 
F 
G 
H 
have expected the Law Commission, in all fairness, to have 
dealt with the communication from the Government giving 
facts of all the
appointments not only of the High Courts 
but of the Supreme Court. I am not saying that they were 
obliged to do so, but it is only a fair thing to do, namely, 
when you bring certain accusation in a solemn document 
like the Law Commission's Report, you should deal with 
all the arguments for and against. We should have 
expected in all fairness that these facts ought to have been 
dealt with. Unfortunately, no facts are set out so that it is 
impossible to deal with. If it was said that this had been
SUPREME COURT ADVOCATES-ON-RECORD 
239 
ASSOCIATION v. U.0.1. [JAGDISH SINGH Kl-JEHAR, J.] 
the case with A, this had been the case with B or C, it 
A 
would have been easy for us to deal with them. Especially 
when we had given all the facts concerning the 
appointment of each and every Judge since 1950." 
82. If one were to draw an inference, from the factual 
numbers indicated in the statements of the Home Minister and 
8 
the Law Minister, and the inferences drawn therefrom, it is more 
than apparent, that the understanding of those in-charge of 
working the provisions of the Constitution; relating to the 
appointment of Judges to the higher.judiciary, was that, the 
C 
advice of the Chief Justice of India was to be, and was actually 
invariably accepted, by the President (or whosoever, exercised 
the power of appointment). 
83. Historically again, from the perspective of judicial 
declarations, the practice adopted on the issue in hand, came D 
to be so understood, in the Samsher Singh case 11 , wherein 
this Court through a seven-Judge Bench held as under: 
"In the light of the scheme of the Constitution we have 
already referred to. it is doubtful whether such an 
interpretation as to the personal satisfaction of the President 
is correct. We are of the view that the President means, 
for all practical purposes, the Minister or the Council of 
Ministers as the case may be, and his opinion, satisfaction 
E 
or decision is constitutionally secured when his Ministers 
F
arrive at such opinion satisfaction or decision. The 
independence of the Judiciary, which is a cardinal principle 
of the Constitution and has been relied on to justify the 
deviation, is guarded by the relevant article making 
consultation with the Chief Justice of India obligatory. In all 
G 
conceivable cases consultation with that highest dignitary 
of Indian justice will and should be accepted by the 
Government of India and the Court will have an opportunity 
to examine if any other extraneous circumstances have 
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entered into the verdict of the Minister if he departs from 
the counsel given by the Chief Justice of India. In practice 
the last word in such a sensitive subject must belong to 
the Chief Justice of India. the rejection of his advice being 
ordinarily regarded as prompted by obligue considerations 
B 
vitiating the order. In this view it is immaterial whether the 
President or the Prime Minister or the Minister for Justice 
formally decides the issue." 
84. Ever since 1974, when the above judgment was 
C 
rendered, the above declaration, has held the field, as the 
above judgment has neither been reviewed nor set aside. It 
cannot be overlooked, that the observations extracted from 
the Samsher Singh case 11 , were reaffirmed by another five-
Judge Bench, in the Sankalchand Himatlal Sheth case5, as 
0 
under: 
"This then, in my judgment, is the true meaning and content 
of consultation as envisaged by Article 222(1) of the 
Constitution. After an effective consultation with the Chief 
Justice of India. it is open to the President to arrive at a 
E 
proper decision of the guestion whether a Judge should 
be transferred to another High Court because. what the 
Constitution reguires is consultation with the Chief Justice. 
not his concurrence with the proposed transfer. But it is 
necessary to reiterate what Bhagwati and Krishna Iyer. JJ .. 
F 
said in Shamsher Singh (supra) that in all conceivable 
cases. consultation with
the Chief Justice of India should 
be accepted by the Government of India and that the Court 
will have an opportunity to examine if any other extraneous 
G 
H 
circumstances have entered into the verdict of the executive 
if it departs from the counsel given by the Chief Justice of 
India: "In practice the last word in such a sensitive subject 
must belong to the Chief Justice of India, the rejection of 
his advice being ordinarily regarded as prompted by oblique 
considerations vitiating the order." (page 873). It is hoped 
..
SUPREME COURT ADVOCATES-ON-RECORD 
241 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
that these words will not fall on deaf ears and since 
A 
normalcy has now been restored, the differenc;:es, if any 
between the executive and the judiciary will be resolved by 
mutual deliberation, each party treating the views of the 
other with respect and consideration." 
85. Even in the First Judges case, P.N. Bhagwati, J., 
8 
corrected his own order through a corrigendum, whereby his 
order, interalia, came to be recorded, as under: 
"Even if the opinion given by all the constitutional 
functionaries consulted by it is identical, the Central c 
Government is not bound to act in accordance with such 
opinion, though being a unanimous opinion of all three 
constitutional functionaries, it would have great weight and 
if an appointment is made by the Central Government in 
defiance of such unanimous opinion, it may prim a facie be 
D 
vulnerable to attack on the ground that it is mala fide or 
based on irrelevant grounds. The same position would 
obtain if an appointment is made by the Central 
Government contrary to the unanimous opinion of the Chief 
Justice of the High Court and the Chief Justice of India." 
E 
From the above extract, it is apparent, that the 
observations recorded by this Court in paragraph 149 in the 
Samsher Singh case 11 , were endorsed in the Sankalchand 
Himatlal Sheth case5, and were also adopted in the First 
Judges case. The position came to be expressed
F 
emphatically in the Second and Third Judges cases, by reading 
the term "consultation" as vesting primacy with the judiciary, in 
the matter of appointments of Judges to the higher judiciary. 
This time around, at the hands of two different nine-Judge G 
Benches, which reiterated the position expressed in the 
Samsher Singh case11 • 
86. The above sequence reveals, that the executive while 
giving effect to the procedure, for appointment of Judges to 
the higher judiciary (and also, in the matter of transfer of Chief H
242 
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A 
Justices and Judges from one High Court, to another), while 
acknowledging the participation of the other constitutional 
functionaries (referred to in Articles 124, 217 and 222), adopted 
a procedure, wherein primacy in the decision making process, 
was consciously entrusted with the judiciary. This position was 
B followed, from the very beginning, after the promulgation of 
the Constitution, by the executive, at its own. Insofar as the 
legislature is concerned, it is apparent, that the issue came up 
for discussion, in a responsive manner when the Fourteenth 
Report of the Law Commission on Judicial Reforms (1958), 
C was discussed by the Parliament, as far back as in 1959, just 
a few years after the country came to be governed by the 
Constitution. It is apparent, that when the two Houses of the 
Parliament, reflected inter a/ia on Articles 124, 217 and 222, 
0 
in the matter of appointment of Judges to the higher judiciary, 
the unanimous feeling which emerged was, that" ... the advice 
of the most competent dependent and eminent person ... " -
the Chief Justice of India, had been followed rightfully. Two 
aspects of the parliamentary discussion, which were kept in 
E 
mind when the issue was deliberated, need to be highlighted. 
First, that the President meant (for all practical purposes), the 
concerned Minister, or the Council of Ministers headed by the 
Prime Minister. And second, that the provisions in question
envisaged only a participatory role, of the other constitutional 
F 
authorities. Therefore, the above affirmation, to the primacy of 
the judiciary, in the matter of appointment of Judges to the higher 
judiciary, was consciously recorded, after having appreciated 
the gamut of the otherparticipating constitutional authorities. 
In the matter of judicial determination,-the issue was examined 
G by a Constitution Bench of the Supreme Court as far back, as 
in 1974 in the Samsher Singh case11 , wherein keeping in mind 
the cardinal principle - the "independence of the judiciary", it 
was concluded, that consultation with the highest dignitary in 
the judiciary - the Chief Justice of India, in practice meant, 
H that the last word must belong to the Chief Justice of India i.e.,
SUPREME COURT ADVOCATES-ON-RECORD 
243 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
the primacy in the matter of appointment of Judges to the higher A 
judiciary, must rest with the judic:;iary. The above position was 
maintained in the Sankalchand Himatlal Sheth case5 in 1977, 
by a five-Judge Bench, only to be altered in the First Judges 
case, by a seven-JU'dge Bench in 1981, wherein it was held, 
that the term "consultation" could not be read as "concurrence". B 
The position expounded even in this case by P.N. Bhagwati, 
J. (as he then was), extracted above, must necessarily also 
be kept in mind. The earlier position was restored in 1993 by 
a nine-Judge Bench in the Second Judges case (which 
overruled the First Judges case). The position was again C 
reaffirmed by a nine-Judge Bench, through the Third Judges 
case. Historically, therefore, all the three wings of governance, 
have uniformally maintained, that while making appointments 
of Judges to the higher judiciary, "independence of the judiciary" 0 
was accepted as an integral component of the spirit of the 
Constitution, and thereby, the term "consultation" used in the 
provisions under consideration, had to be understood as 
·vesting primacy with the judiciary, with reference to the subjects 
contemplated under ArtiGLes 124, 217 and 222. In view of the E 
above historical exposition, there is really no legitimate reason 
for the respondents to seek a review of the judgments in the· 
Second and Third
Judges cases. 
v. 
87. Whilst dwelling on the subject of the intention 
expressed by the Members of the Constituent Assembly, it is 
considered just and expedient, also to take into consideration 
the views expressed in respect of the adoption of "separation 
F 
of powers" in the Constitution. When the draft prepared by the G 
Constituent Assembly came up for debate, Dr. B.R. Ambedkar 
proposed an amendment of Article 39A. It would be relevant 
to mention, that the aforesaid amendment, on being adopted, 
was incorporated as Article 50 in the Constitution (as originally 
enacted). It is also necessary to notice, that the Government H
244 
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had already commenced to function, with Jawaharlal Nehru 
as the Prime Minister, when the draft of the Constitution was 
being debated before the Constituent Assembly. His 
participation in the debates of the Constituent Assembly, 
therefore, was not only in his capacity as a Member of the 
B 
Constituent Assembly, but also, as a representative of the. 
c 
D 
E 
F 
G 
H 
Government of India. It is necessary to extract hereunder, the 
views expressed by Jawaharlal Nehru, Bakshi Tek Chand and 
Loknath Misra, in the above debates, relating to "separation 
of powers". Relevant extracts are being reproduced hereunder: 
"The Honourable Pandit Jawaharlal Nehru (United 
Provinces: Gener.al): 
..... Coming to this particular matter, the honourable 
speaker, Pandit Kunzru, who has just spoken and opposed 
the amendment of Dr. Ambedkar seems to me; if I may 
say so with all respect to him, to have gone off the track 
completely, and to suspect a sinister motive on the part of 
Government about this business. Government as such is 
not concerned with this business, but it is true that some 
members of Government do feel rather strongly about it 
and would like this House fully to consider the particular 
view point that Dr. Ambedkar has placed before the House 
. today. I may say straight off that so far as the Government 
is concerned, it is entirely in favour of the separation of 
judicial and executive functions (Cheers). I may further
say 
that the sooner it is brought about the better (Hear, hear) 
and I am told that some of our Provincial Governments are 
actually taking steps to that end now. If anyone asked me, 
if anyone suggested the period of three years or some other 
period, my first reaction would have been that this period 
is too long. Why should we wait so long for this? It might 
be brought about, if not all over India, in a large part of 
India, much sooner than that.At the same time, it is obvious 
that India at the present moment, specially during the 
transitional period, is a very mixed country politically,
SUPREME COURT ADVOCATES-ON-RECORD 
245 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
judicially, economically and in many ways, and any fixed 
A 
rule of thumb to be applied to every area may be 
disadvantageous and difficult in regard to certain areas. 
On the one hand, that rule will really prevent progress in 
one area, and on the other hand, it may upset the apple-
cart in some other area: Therefore, a certain flexibility is 
B 
desirable. Generally speaking, I would have said that in any 
such directive of policy, it may not be legal, but any directive 
of policy in a Constitution must have a powerful effect. In 
any such directive, there should not be any detail or time-
limit etc. It is a directive of what the State wants, and your C 
putting in any kind of time-limit therefore rather lowers it 
from that high status of a State policy and brings it down to 
the level of a legislative measure, which it is not in that 
sense. I would have preferred no time-limit to be there, but 
D 
speaking more practically, any time-limit in this, as Dr. 
Ambedkar pointed out, is apt on the one hand to delay this 
very process in large parts of the country, probably the 
greater part of the country; on the other hand, in some parts 
where practically speaking it may be very difficult to bring 
E 
about, it may produce enormous confusion. I think, 
therefore, that Dr. Ambedkar's amendment, far from 
lessening the significance or the importance of this highly 
desirable change that
we wish to bring about, places it on 
a high level before the country. And I do not see myself 
F 
how any Provincial or other Government can forget this 
Directive or delay it much. After all, whatever is going to be 
done in the future will largely depend upon the sentiment 
of the people and the future Assemblies and Parliaments 
that will meet. But so far as this Constitution is concerned, 
G 
it gives a strong opinion in favour of this change and it gives 
it in a way so as to make it possible to bring it about in 
areas where it can be b~ught about - the provinces, etc. -
and in case of difficulty in any particular State, etc,, it does 
not bind them down. I submit. therefore. that this 
H
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A 
amendment of Dr. Ambedkar should be accepted. 
(Cheers)." 
"Dr. Bakshi Tek Chand (East Punjab: General): Mr. Vice-
President, Sir, I rise to lend my whole hearted support to 
the amendment which has been moved by Dr. Ambedkar 
B 
today. The question of the separation of executive and 
judicial functions is not only as old as the Congress itself, 
but indeed it is much older. It was in the year 1852 when 
public opinion in Bengal began to express itself in an 
c 
D 
E 
F 
G 
H 
organised form that the matter was first mooted. That was 
more than thirty years before the Congress came into 
existence. After the Mutiny. the movement gained 
momentum aod in the early seventies, in Bengal, under 
the leadership of Kisto Das Pal and Ram Gopal Ghosh, 
who were the leaders of public opinion in those days. definite 
proposals with regard to the separation of judicial and 
executive functions were put forward. Subsequently, the 
late Man Mohan Ghosh took up this matter and he and Babu 
Surendranath Bannerji year in and year out raised this 
question in all public meetings. 
When the Congress first met in the session in Bombay in 
1885. this reform in the administration was put in the 
forefront of its programme. Later on. not only politicians of 
all schools of thought, but even retired officers who had 
actually spent their lives in the administration. took up the 
matter and lent their support to it, I very well remember the 
Lucknow
Congress of 1899 when Ramesh Chunder Dutt.-
who had just retired from the Indian Civil Service presided. 
He devoted a large part of his presidential address to this 
subject and created a good deal of enthusiasm for jt, Not 
only that: even retired High Court Judges and Englishmen 
like Sir Arthur Hobhouse and Sir Arthur Wilson, both of 
whom subsequently became members of the Judicial 
Committee of the Priw Council, lent their support to this 
and they jointly with many eminent Indians submitted a
SUPREME COURT ADVOCATES-ON-RECORD 
247 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
representation to the Secretarv of State for India to give A 
immediate effect to this reform. 
In the year 1912, when the Public Service Commission 
was appointed, Mr. Abdur Rahim, who was a Judge of the 
Madras High Court and was for many years the President 
of the Central Legislature, appended a long Minute of B 
Dissent and therein he devoted several pages to this 
question. 
Therefore. Sir. the matter has been before the country for 
nearly a century and it is time that it is given effect to 
immediately. One of the Honourable Members who spoke C 
yesterday. observed that this matter was of great 
importance when we had a foreign Government but now 
the position has changed. and it may not be necessary to 
give effect to it. Well. an effective reply to this has been 
D 
given by the Honourable the Prime Minister today. He has 
expressly stated that it is the policy of the Government, 
and it is their intention to see that this reform is given 
immediate effect to. 
xxxx 
xxxx 
xxxx 
E 
I am glad to hear that he confirms it. This gives the quietus 
F 
to these two objections which have been raised, that 
because of the changed circumstances, because we have 
attained freedom, it is no longer necess!'!ry and that the 
financial burden will be so heavy that it might crush 
provincial Governments. Botti these objections are hollow. 
One word more I have to say in this connection and
that is. 
that with the advent of democracy and freedom, the 
necessity of this reform has become all the greater. 
Formerly it was only the district magistrate and a few 
G 
members of the bureaucratic Government from whom 
interference with the judiciary was apprehended. but now, 
I am very sorry to say that even the Ministers in some 
provinces and members of political parties have begun to 
. interfere with the free administration of justice. Those of H
248 
A 
B 
c 
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E 
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G 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
you. who may be reading news paper reports of judicial 
decisions lately. must have been struck with this type of 
interference which has been under review in the various 
High Courts lately. In one province we found that in a case 
pending in a Criminal Court, the Ministry sent for the record 
and passed an order directing the trying Magistrate to stay 
proceedings in the case. This was something absolutely 
unheard of. The matter eventually went up to the High Court 
and the learned Chief Justice and another Judge had to 
pass very strong remarks against such executive 
interference with the administration of justice. 
In another province a case was bei~g tried against a 
member of the Legislative Assembly and a directive went 
from the District Magistrate to the Magistrate trying the case 
not to proceed with it further and to release the man. The 
Magistrate who was a member of the Judicial Service and 
was officiating as a Magistrate had the strength to resist 
this demand. He had all those letters put on the record and 
eventually the matter went up to the High Court and the 
Chief Justice of the Calcutta High Court made very strong 
remarks about this matter. 
Again in the Punjab, a case has recently occurred in which 
a Judge of the High Court, Mr. JusticeAchu Ram, heard a 
habeas corpus petition and delivered a judgment of 164 
pages at the conclusion of which he observed that the 
action taken by
the Distr.ict Magistrate and the 
Superintendent of Police against a member of the 
Congress Party was mala fide and was the result of a 
personal vendetta. These were his remarks. 
In these citcumstances. I submit that with the change of 
circumstances and with the advent of freedom and the 
introduction of democracy. it has become all the more 
necessary to bring about the separation of the judiciary 
from the executive at the earliest possible opportunity."
SUPREME COURT ADVOCATES-ON-RECORD 
249 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
88. A perusal of the statements made before the A 
Constituent Assembly, which resulted in the adoption of Article 
50 of the Constitution reveals, that the first Prime Minister of 
this country, was entirely in favour of the separation of judicial 
and executive "functions". On the subject of separation, it was 
pointed out, that it was a directive which the Government itself B 
wanted. The statement of Dr. Bakshi Tek Chand in the 
Constituent Assembly projects the position, that the idea of 
separating the judiciary from the executive was mooted for 
the first time as far back as in 1852, and that thereafter, the 
political leadership and also public opinion, were directed C 
towards ensuring separation of judicial and executive 
functioning. He pointed out, that "year in and year out", the late 
Man Mohan Ghosh and Bapu Surendranath·Banerji had raised 
the instant question, in all public meetings. And when the 
D 
Congress first met in Bombay in 1885, the matter of separating 
the judiciary from the executive, was placed above all other 
issues under consideration. Thereafter, not only the politicians 
of all schools of thought, but even retired officers, who had 
actually spent their lives in administration, had supported the 
E 
issue of "separation of powers". He also highlighted, that in 
1899, Romesh Chunder Dutt had devoted a large part of his 
presidential address to the
issue. And that, retired High Court 
Judges and Englishmen like Sir Arthur Hob house and Sir Arthur 
Wilson (both of whom, subsequently became Members of the 
F 
Judicial Committee of the Privy Council), also supported the 
above reform. The debate, it was pointed out, had been on 
going, to accept the principle of "separation of powers", 
whereby, the judiciary would be kept apart from the executive. 
He also pointed to instances, indicating interference by G 
Ministers and members of the administration, which 
necessitated a complete separation of powers between the 
judiciary and the executive. Loknath Misra fully supported the 
above amendment, as a matter of principle. It is, therefore, 
imperative to conclude that the framers of the Constitution while 
H
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[2015] 13 S.C.R. 
A 
drafting Article 50 of the Constitution, were clear and 
unanimous in their view, that there need to be a judiciary, 
separated from the i6fluences of the executive. 
89. Based on the consideration recorded in the 
8 
immediately preceding paragraphs also, it seems to us, that 
the necessity of making a detailed reference to the Constituent 
Assembly debates in the Second Judges case, may well have 
been regarded, as of no serious consequence, whether it was 
on the subject of appointment of Judges to the higher judiciary, 
c as a component of "independence of the judiciary", or, on the 
subject of "separation of powers", whereby the judiciary was 
sought to be kept apart, and separate, from the executive. This 
Court having concluded, that the principle of "separation of 
powers" was expressly ingrained in the Constitution, which 
o removes the executive from any role in the judiciary, the right 
of the executive to have the final word in the appointment of 
Judges to the higher judiciary, was clearly ruled out. And 
therefore, this Court on a harmonious construction of the 
provisions ofthe Constitution, in the Second and Third Judges 
E 
cases, rightfully held, that primacy in the above matter, vested 
with the judiciary, leading to the inference, that the term 
"consultation" in the provisions under reference, should be 
understood as giving primacy to the view expressed by the 
F 
judiciary, through the Chief Justice "Of
India. 
VI. 
90. It is imperative to deal with another important 
submission advanced by the learned Attorney General, namely, 
that the issue of "independence of the judiciary" has nothing to 
G do with the process of "appointment" of Judges to the higher 
judiciary. It was submitted, that the question of independence 
of a Judge arises, only after a Judge has been appointed (to 
the higher judiciary), for it is only then, that he is to be shielded 
from the executive/political pressures and influences. It was 
H
SUPREME COURT ADVOCATES-ON-RECORD 
251 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
sought to be elaborated, that Judges of the higher judiciary, 
A 
immediately after their appointment were so well shielded, that 
there could be no occasion of the "independence of the 
judiciary" being compromised, in any manner, either at the 
hands of the executive, or of the legislature. 
91. Whilst advancing the instant contention, it was the 
pointed assertion of the learned Attorney General, that neither 
of the judgments rendered in the Second and Third Judges 
cases had held, thatthe "selection and appointment" Of Judges, 
B 
to the higher judiciary, would fall within the purview of c 
"independence of the judiciary". It was therefore his contention, 
that it was wrongful to assume, on the basis of the above two 
judgments, that the question of "appointment" of Judges to. the 
higher judiciary would constitute a component of the "basic 
structure" of the Constitution. It was the contention of the 
D 
learned Attorney General, that the Parliament, in its wisdom, 
had now amended the Constitution, admittedly altering the 
process of "selection and appointment" of Judges to the higher 
judiciary (including their transfer). It was further contended, that 
the process contemplated through the Constitution (99th 
E 
Amendment) Act, coupled with the NJACAct, was such, that it 
cannot be considered to have interfered with, or impinged upon, 
the "independence of the judiciary", and
thus viewed, it would 
not be rightful to conclude, that the impugned constitutional 
amendment, as also the NJAC Act, were per se violative of F 
the "basic structure". 
92. We may preface our consideration by noticing, that 
every two years since 1985, a conference of Supreme Court 
Chief Justices from the Asia Pacific region, has been held by G 
the Judicial Section of the Law Association for Asia and the 
Pacific. Since its inception, the conference has served as a 
useful forum for sharing information and discussing issues of 
mutual concern among Chief Justices of the region. At its 6th 
Conference held in Beijing in 1997, 20 Chief Justices adopted 
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[2015] 13 S.C.R. 
A 
a joint Statement of Principles of the "Independence of the 
Judiciary". This statement was further refined during the 7th 
Conference of Chief Justices held in Manila, wherein it was 
signed by 32 Chief Justices from the Asia Pacific region. The 
Beijing Statement of Principles of the "Independence of the 
B 
Judiciary" separately deals with appointment of Judges. The 
position expressed in the above statement with reference to 
"appointment" of Judges is extracted hereunder: 
c 
D 
E 
"Appointment of Judges 
11. To enable the judiciary to achieve its objectives and 
perform its functions, it is essential that judges be chosen 
on the basis of proven competence, integrity and 
indep~ndence. 
12.The mode of appointment of judges must be such as 
will ensure the appointment of persons who are best 
qualified for judicial office. It mu·st provide safeguards 
against improper.influences being taken into account so 
that only persons of competence. integrity and 
independence are appointed. 
13. In the selection of judges there must no discrimination 
against a person on the basis of race. colour. gender, 
· religion. political or other opinion national or social origin, 
marital status. sexual orientation. property. birth or status. 
expect that a requirement that a candidate for judicial office 
F 
must be a national of the country concerned shall not be 
considered discriminatory. 
14. The structure of the legal profession, and
the sources 
from which judges are drawn within the legal profession, 
differ in different societies. In some societies, the judiciary 
G 
is a career service; in others, judges are chosen from the 
practising profession. Therefore, it is accepted that in 
different societies, difference procedures and safeguards 
may be adopted to ensure the proper appointment of 
judges. 
H
SUPREME COURT ADVOCATES-ON-RECORD 
253 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
15. In some societies, the appointment of judges, by, with 
A 
the consent of, or after consultation with a Judicial Services 
Commission has been seen as a means of ensuring that 
those chosen judges are appropriate for the purpose. 
Where a Judicial Services Commission is adopted, it 
should include representatives the higher Judiciary and the 
B 
independent legal profession as a means of ensuring that 
judicial competence, integrity and independence are 
maintained. 
16. In the absence of a Judicial Services Commission, the 
procedures for appointment of judges should be clearly 
defined and formalised and information about them should 
be available to the public. 
c 
17. Promotion of judges must be based on an objective 
assessment of factors such as competence, integrity, 
D 
independence and experience." 
Therefore to contend, that the subject of "appointment" 
is irrelevant to the question of the "independence of the 
judiciary", must be considered as a misunderstanding of a well 
recognized position. 
E 
93. Whilst dealing with the instant contention, we will also 
examine if this Court in the Second and Third Judges cases, 
had actually dealt with the issue, whether "appointment" of 
Judges to the higher judiciary, was (or, was not) an essential 
component of the principle of "independence of the judiciary"? 
F 
Insofar as the instant aspect of the matter is concerned,
reference in the first instance, may be made to the Second 
Judges case, wherein S. Ratnavel Pandian, J., while recording 
his concurring opinion, supporting the majority view, observed G 
asunder: 
"47. The above arguments that the independence of 
judiciary is satisfactorily secured by the constitutional 
safeguard of the office that a judge holds and guarantees 
of the service conditions alone and not beyond that. are in 
H
254 
A 
B 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
our considered opinion. untenable. In fact we are unable 
even to conceive such an argument for the reason to be 
presently stated," 
In addition to the above extract, it is necessary to refer to 
the following observations of Kuldip Singh, J.: 
"335. Then the question which comes up for consideration 
is. can there be an independent judiciary when the power 
of appointment of judges vests in the executive? To say 
yes, would be illogical. ... " 
c 
From the above it is clear, that the issue canvassed by 
the learned Attorney General, was finally answered by the nine-
Judge Bench, which disposed of the Second Judges case by 
holding, that if the power of "appointment" of Judges, was left 
to the executive, the same would breach the principle of the 
D "independence of the judiciary". And also conversely, that 
providing safeguards after the appointment of a Judge to the 
higher judiciary, would not be sufficient to secure 
"independence of the judiciary". In the above view of the matter, 
it is necessary to conclude, that the "manner of selection and 
E 
appointment" of Judges to the higher judiciary, is an integral 
component of "independence of the judiciary". The contentions 
advanced on behalf of the Union of India, indicating the 
participation of the President and the Parliament, in the affairs 
of the judiciary, would have no bearing on the controversy in 
F 
hand, which primarily relates to the issue of
"appointment" of 
Judges to the higher judiciary. And, extends to transfer of Chief 
Justices and Judges from one High Court, to another. The fact 
that there were sufficient safeguards, to secure the 
G independence of Judges of the higher judiciary after their 
"appointment", and therefore, there was no need to postulate, 
that in the matter of "appointment" also, primacy need not be 
in the hands of the judiciary, is also not acceptable. It is quite 
another matter, whether the manner of selection and 
H appointment of Judges, introduced through the Constitution
SUPREME COURT ADVOCATES-ON-RECORD 
255 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
(99thAmendment)Act coupled with the NJACAct, can indeed A 
be considered to be violative of "independence of the judiciary". 
This aspect, shall be examined and determined independently, 
while examining the merits of the challenge raised by the 
petitioners. 
VII. 
B 
94. A perusal of the provisions of the Constitution reveals, 
that in addition to the appointment of the Chief Justice of India 
and Judges of the Supreme Court, under Article 124, the 
President has also been vested with the authority to appoint c 
Judges and Chief Justices of High Courts under Article 217. 
In both the above provisions, the mandate for the President, 
inter alia is, that the Chief Justice of India "shall always be 
consulted", (the first proviso, under Article 124(2), as originally 
enacted), and with reference to Judges of the High Court, the D 
language engaged in Article 217 was, that the President would 
appoint Judges of High Courts "after consultation with the Chief 
Justice of India" (per sub-Article (1) of Article 217). 
95. To understand the term "consultation" engaged in 
Articles 124 and 217, it is essential to contrast the above two 
E 
provisions, with other Articles of the Constitution, whereunder 
also, the President is mandated to appoint different 
con§titutional authorities. Reference in this behalf may be 
made to the appointment of the Comptroller and Auditor-
General of India, under
Article 148. The said provision vests 
F 
the authority of the above appointment with the President, 
without any consultative process. The position is exactly similar 
with reference to appointment of Governors of States, under 
Article 155. The said provision also contemplates G 
appointments, without any consultative process. The President 
is also vested with the authority, to appoint the Chairman and 
four Members of the Finance Commission, under Article 280. 
Herein also, the power is exclusively vested with the President, 
without any consultative process. The power of appointment H
256 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
of Chairman and other Members of the Union Public Service 
Commission, is also vested with the President under Article 
316. The aforesaid appointment also does not contemplate 
any deliberation, with any other authority. Under Article 324, 
the power of appointment of Chief Election Commissioner and 
8 
Election Commissioners is vested with the President 
exclusively. Likewise, is the case of appointment of 
Chairperson, Vice-Chairperson and Members of the National 
Commission for Scheduled Castes under Article 338, and 
Chairperson, Vice-Chairperson and other Members of the 
C National Commission for Scheduled Tribes under Article 338A. 
Under the above stated provisions, the President has the 
exclusive authority to make appointments, without any 
deliberation with any other authority. Under Article 344, the 
0 
President is also vested with the authority to appoint Chairman 
and other Members to the Commission of Parliament on 
Official Languages. The instant provision also does not 
provide for any consultative process before such appointment. 
The same position emerges from Article 3508, whereunder 
E the President is to appoint a Special Officer for Linguistic 
Minorities. Herein too, there is no contemplation of any prior 
consultation. 
96. It is apparent that the Council of Ministers, with the 
Prime Minister as its head, is to "aid and advise" the President 
F 
in the exercise of his functions. This position is not
disputed 
by the learned counsel representing the respondents. 
Interpreted in the above manner, according to the learned 
Attorney General, in exercising his responsibilities under 
Articles 124, 217, 148, 155, 280, 316, 324, 338, 338A, 344 
G and 3508, the President is only a figurative authority, whereas 
truthfully, the authority actually vests in the Council of Ministers 
headed by the Prime Minister. And as such, for all intents and 
purposes, the authority vested in the President for appointing 
different constitutional authorities, truly means that the power 
H of such appointment is vested in the executive.
SUPREME COURT ADVOCATES-ON-RECORD 
257 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
97. If one were to understand the words, as they were A 
expressed in Article 74, in our considered view, it would be 
difficult to conclude, that "aid and advice" can be treated 
synonymous with a binding "direction", an irrevocable 
"command" or a conclusive "mandate". Surely, the term "aid 
and advice" cannot individually be construed as an imperative B 
dictate, which had to be obeyed under all circumstances. In 
common parlance, a process of "consultation" is really the 
process of "aid and advice". The only distinction being, that 
"consultation" is obtained, whereas "aid and advice" may be 
tendered. On a plain readingtherefore, neither of the two ("aid 
C 
and advice" and "consultation") can be understood to convey, 
that they can be of a binding nature. We are of the view, that 
the above expressions were used, keeping in mind the exalted 
position which the President occupies (as the first citizen, of D 
the country). As the first citizen, it would have been discourteous 
to provide, that he was to discharge his functions in consonance 
with the directions, command, or mandate of the executive. 
Since, both the expressions ("aid and advice" and 
"consultation"), deserve the same interpretation, if any one of E 
them is considered to be mandatory and binding, the same 
import with reference to the other must follow. Through the 
Constitution (Forty-second Amendment) Act, 1976,
Article 7 4 
came to be amended, and with the insertion of the words "shall 
... act in accordance with such advice", the President came to 
F 
be bound, to exercise his functions, in consonance with the 
"aid and advice" tendered to him, by the Council of Ministers 
headed by the Prime Minister. The instant amendment, in our 
view, has to be considered as clarificatory in character, merely 
reiterating the manner in which the original provision ought to G 
have been understood. 
98. If "aid and advice" can be binding and mandatory, 
surely also;the term "consultation", referred to in Articles 124 
and 217, could lead to the same exposition. The President of H
258 
SUPREME COURT REPORTS 
(2015] 13 S.C.R. 
A 
India, being the first citizen of the country, is entitled to 
respectability. Articles 124 and 217, were undoubtedly 
couched in polite language, as a matter of constitutional 
courtesy, extended to the first citizen of the country. It is 
important to notice, that the first proviso under Article 124(2) 
B clearly mandates, that the Chief Justice of India "shall always" 
be consulted. It was a reverse obligation, distinguishable from 
Article 7 4. Herein, the President was obliged to consult the 
Chief Justice of India, in all matters of appointment of Judges 
to the Supreme Court. The process of "consultation" 
C contemplated therein, has to be meaningfully understood. If it 
was not to be so, the above provision could have been similarly 
worded as those relating to the appointment of the Comptroller 
and Auditor-General of India, Governors of States, Chairman 
and Members of the Finance Commission, Chairman and 
D Members of the Union Public Service Commission, Chief 
Election Commissioner and Election Commissioners, 
Chairperson and Vice Chairperson and Members of the 
National Commission for Scheduled Castes, as also, those 
E of the National Commission for Scheduled Tribes. This contrast 
between Articles 124 and 217 on the one hand, and the 
absence of any "consultation", with reference to the 
appointments contemplated under Articles 148, 155, 280, 316, 
324, 338, 338A, 344 and 3508, leaves no room for any doubt, 
F
that the above "consultation" was not a simplicitor 
"consultation". And since, the highest functionary in the judicial 
hierarchy was obliged to be consulted, a similar respectability 
needed to be bestowed on him. What would be the worth of 
the mandatory "consultation", with the Chief Justice of India, if 
G his advice could be rejected, without any justification? It was 
therefore, concluded by this Court, that in all conceivable cases, 
consultation with the highest dignitary in the judiciary-the Chief 
Justice of India, will and should be accepted. And, in case it 
was not so acceptd, it would be permissible to examine 
H whether such non acceptance was prompted by any oblique
SUPREME COURT ADVOCATES-ON-RECORD 
259 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
consideration. Rightfully therefore, the term "consultation" used A 
in Articles 124 and 217, as they were originally enacted meant, 
that primacy had to be given to the opinion tendered by the 
Chief Justice of India, on the issues for which the President 
was obliged to seek such "consultation". The submission 
advanced on behalf of the respondents, cannot be accepted, 
B 
also for the reason, that the interpretation placed by them on 
the term "consultation", would result in an interpretation of 
Articles 124 and 217, as at par with Articles 148, 155, 280, 
316, 324, 338, 338A, 344 and 3508, wherein the term 
"consultation" had not been used. Such an interpretation, would C 
be clearly unacceptable. Since the manner of appointment of 
Judges to the higher judiciary, is in contrast with that of the 
constitutional authorities referred to by the learned Attorney 
General, the submission advanced on behalf of the D 
respondents with reference to the other constitutional 
authorities cannot have a bearing on the present controversy. 
99. We would unhesitatingly accept and acknowledge 
the submission made by the learned Attorney General, as has 
been noticed hereinabove, but only limited to situations of E 
appointment contemplated under various Articles of the 
Constitution, where the power of appointment is exclusively 
vested with the President. As such, there is no room for any 
doubt
that the provisions of the Constitution, with reference to 
the appointment of Judges to the higher judiciary, contemplated 
F 
that the "aid and advice" (-the "consultation") tendered by the 
Chief Justice of India, was entitled to primacy, on matters 
regulated under Articles 124 and 217 (as also, under Article 222). 
VIII. 
G 
100. In continuation with the conclusions drawn in the 
foregoing analysis, the matter can be examined from another 
perspective as well. The term "consultation" (in connection 
with, appointments of Judges to the higher judiciary) has also 
been adopted in Article 233 on the subject of appointment of H
260 
SUPREME COURT REPORTS 
[2015] 13S.C.R. 
A 
District Judges. Under Article 233, the power of appointment 
is vested with the Governor of the concerned State, who is 
empowered to make appointments (including promotions) of 
District Judges. This Court, through a five-Judge Bench, in 
Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta 
B Satapathy32, has held, that recommendations made by the High 
Court in the consultative process envisaged under Article 233, 
is binding on the Governor. In the face of the aforestated 
. binding precedent, on a controversy, which is startlingly similar 
to the one in hand, and has never been questioned, it is quite 
C 
ununderstandable how the Union of India, desires to persuade 
this Court, ta now examine the term "consultation" differently 
with reference to Articles 124 and 217, without assailing the 
meaning given to the aforesaid term, with reference to a matter 
0 
also governing the judiciary. 
VI. CONCLUSION: 
101. Based on the conclusions drawn hereinabove, while 
considering the submissions_ advanced by the learned counsel 
for the rival parties, as have been recorded in "V - The 
E 
Consideration", we are of the view, that the prayer made at the 
hands of the learned counsel for the respondents, for revisiting 
or reviewing the judgments rendered by this Court, in the 
Second and Third Judges cases, cannot be acceded to. The 
F 
prayer is, accordingly, hereby declined. 
THE ORDER ON MERITS 
I. PREFACE 
1. It is
essential to begin the instant order by a foreword, 
G in the nature of an explanation. For, it would reduce the bulk of 
the instant order, and obviate the necessity to deal with issues 
which have been considered and dealt with, while hearing the 
present set of cases. 
H 
32 (1999) 1 sec 125
SUPREME COURT ADVOCATES-ON-RECORD 
261 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
2. The question which arises for consideration in the A 
present set of cases pertains to the constitutional validity of 
. the Constitution (Ninety-ninth Amendment) Act, 2014 
[hereinafter referred to as the Constitution (99th Amendment) 
Act], as also, that of the National Judicial Appointments 
Commission Act, 2014 (hereinafter referred to as, the NJAC B 
Act). The core issue that arises for consideration, relates to 
the validity of the process of selection and appointment of 
Judges to the higher judiciary (i.e., Chief Justices and Judges 
of the High Courts and the Supreme Court), and transfer of 
Chief Justices and Judges of one High Court, to another. 
C 
3. This is the third order in the series of orders passed 
by us, while adjudicating upon the present controversy. The 
first order, dealt with the prayer made at the Bar, for the "recusal" 
of one of us (J.S. Khehar, J.) from hearing the present set of D 
cases. As and when a reference is made to the above first 
order, it would be adverted to as the "Recusal Order". The 
second order, considered the prayer made by the learned 
Attorney General and some learned counsel representing the 
respondents, seeking a "reference" of the present controversy, 
E 
to a nine-Judge Bench (or even, to a further larger Bench) for 
re-examining the judgmenf rendered in Supreme Court 
Advocates-on-Record Association v. Union of lndia 2
(hereinafter referred to as, the Second Judges case), and the 
advisory opinion in Re: Special Reference No.1 of 19983 
F 
(hereinafter referred to, as the Third Judges case), for the 
alleged object of restoring and re-establishing, the declaration 
of the legal position, expounded by this Court in S.P. Gupta v. 
Union of lndia1 (hereinafter referred to as, the First Judges 
case). As and when a reference is made to the above second 
G 
order, it would be mentioned as the "Reference Order". 
4. We would, therefore, not examine the issues dealt with 
in the Recusal Order and/or in the Reference Order, even 
though they may arise for consideration yet again, in the 
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262 
SUPRE::ME COURT REPORTS 
[2015] 13 S.C.R. 
A 
process of disposal of the present controversy on merits. As 
and when a reference is made to the instant trnrd order, 
examining the "merits" of the controversy, it would be adverted 
to as the "Order on Merits". 
B II. PETITIONERS' CONTENTIONS. ON MERITS: 
5. On the subject of amending the Constitution based on 
the procedure provided for in Article 368, it was submitted by 
Mr. Fali S. Nariman, Senior Advocate, that the power of 
amendment of the Constitution is not a plenary power. It was 
C 
pointed out, that the above power was limited, inasmuch as, 
the power of amendment did not include the power of amending 
the "core" or the "basic structure" of the Constitution. In this 
behalf, learned counsel placed reliance on Minerva Mills Ltd. 
v. Union of lndia33, wherein majority view was expressed 
D through Y.V. Chandrachud, CJ., as under: 
E 
"17. Since the Constitution had conferred a limited 
amending power on the Parliament, the Parliament cannot 
under the exercise of that limited power enlarge that very 
power into an absolute power. Indeed, a limited amending 
power is one of the basic features of our Constitution and 
therefore, the limitations on that power cannot be 
destroyed. In other words, Parliament cannot. under 
Article 368, expand its amending power so as to acquire 
F 
for itself the right to repeal or abrogate the Constitution or 
to destroy its basic and essential features. The donee of a 
limited
power cannot by the exercise of that power convert 
the limited power into an unlimited one." 
In the above judgment, the minority view was recorded 
G by P.N. Bhagwati, J., (as he then was), as under: 
"88. That takes us to clause (5) of Article 368. This clause 
opens with the words "for the removal of doubts" and 
proceeds to declare that there shall be no limitation 
whatever on the amending power of Parliament under Article 
H 
03 (1980) 3 sec 625
SUPREME COURT ADVOCATES-ON-RECORD 
263 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
368. It is difficult to appreciate the meaning of the opening 
A 
words "for the removal of doubts" because the majority 
decision in Kesavananda Bharati case : Al R 1973 SC 1461 
clearly laid down and left no doubt that the basic structure 
of the Constitution was outside the competence of the 
amendatory power of Parliament and in Indira Gandhi 
case : [1976] 2 SCR 341, all the judges unanimously 
accepted theory of the basic structure as a theory by which 
the validity of the amendment impugned before them, 
namely, Article 329-A(4) was to be judged. Therefore. after 
the decisions in Kesavananda Bharati case and Indira 
Gandhi case, there was no doubt at all that the amendatory 
power of Parliament was limited and it was not competent 
to Parliament to alter the basic structure of the Constitution 
B 
c 
and clause (5) could not remove the doubt which did not D 
exist. What clause (5). really sought to do was to remove 
the limitation on the amending power of Parliament and 
convert it from a limited power into an unlimited one. This 
was clearly and indubitably a futile exercise on the part of 
Parliament. I fail to see how Parliament which has only a 
E 
limited power of amendment and which cannot alter the 
basic structure of the Constitution can expand its power of 
amendment so as to confer upon itself the power of repeal 
or abrogate the Constitution or to damage or destroy
its 
basic structure. That would clearly be in excess of the 
F 
limited amending power possessed by Parliament. The 
Constitution has conferred only a limited amending power 
on Parliament so that it cannot damage or destroy the basic 
structure of the Constitution and Parliament cannot by 
exercise of that limited amending power convert that very G 
power into an absolute and unlimited power. If it were 
permissible to Parliament to enlarge the limited amending 
power conferred upon it into an absolute power of 
amendment, then it was meaningless to place a limitation 
on the original power of amendment. It is difficult to 
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appreciate how Parliament having a limited power of 
amendment can get rid of the limitation by exercising that 
very power and convert it into an absolute power. Clause 
(5) of Article 368 which sought to remove the limitation on 
the amending power of Parliament by making it absolute 
must therefore be held to be outside the amending power 
of Parliament. There is also another ground on which the 
validity of this clause can be successfully assailed. This 
clause seeks to convert a controlled Constitution into an 
uncontrolled one by removing the limitation on the amending 
power of Parliament which, as pointed out above, is itself 
an essential feature of the Constitution and it is therefore 
violative of the basic structure. I would in the circumstances 
hold clause (5) of Article 368, to be unconstitutional and void." 
. 0 
With reference to the same proposition, learned counsel 
placed reliance on Kihoto Hollohan v. Zachillhu 34• It was 
submitted, that the acceptance of the principle of "basic 
structure" of the Constitution, resulted in limiting the amending 
power postulated in Article 368. 
E 
6. According to the learned counsel, it is now accepted, 
that "independence of the judiciary", "rule of law", "judicial 
review" and "separation of powers" are components of the 
"basic structure" of the Constitution. In the above view of the 
matter, provisions relating to appointment of Judges to the 
F 
higher
judiciary, would have to be such, that the above principles 
would remain unscathed and intact. It was submitted, that any 
action which would have the result of making appointment of 
the Judges to the Supreme Court, and to the High Courts, 
G subservient to an agencyother than the judiciary itself, namely, 
by allowing the executive or the legislature to participate in 
their selection and appointment, would render the judiciary 
subservient to such authority, and thereby, impinge on the 
"independence of the judiciary". 
H 
34 1992 Supp (2) sec 651
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7. Learned counsel invited the Court's attention to the A 
1st Law Commission Report on "Reform of Judicial 
Administration" (14th Report of the Law Commission of India, 
chaired by M.C. Setalvad), wherein it was debated, that by 
enacting Articles 124 and 217, the framers of the Constitution 
had endeavoured to put the Judges of the Supreme Court 
B 
"above executive control". Paragraph 4 of the said Report is 
being extracted hereunder: 
"(Appointment and removal of Judges) 
4. Realizing the importance of s'afeguarding the C 
independence of the judiciary, the Constitution has provided 
that a Judge of the Supreme Court shall be appointed by 
the President in consultation with the Chief Justice of India 
and after consultation with such of the other Judges of the 
Suweme Court and the High Courts as he may deem 
D 
necessary. He holds offics till he attains the age of 65 
years and is irremovable except on the presentation of an 
address by each House of Parliament passed by a 
specified majority on the ground of proved misbehaviour 
or incapacity. Thus has the Constjtution endeavoured to 
E 
put Judges of the Supreme Court above executive control." 
8. ltwas submitted, that "independence of the judiciary" 
had been held to mean and include, insulation of the higher 
judiciary from executive and legislative control. In this behalf, 
reference was made to Union of India v. Sankalchand
Himatlal 
F 
Sheth5, wherein this Court had observed: 
"50. Now the independence of the judiciary is a fighting 
faith of our Con~titution. Fearless justice is a cardinal creed 
of our founding document. It is indeed a part of our ancjent G 
tradition which has produced great Judges in the past. In 
England too, from where we have inherited our present 
system of administration of justice in its broad and essential 
features, judicial independence is prized as a basic value 
and so natural and inevitable it has come to be regarded 
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and so ingrained it has become in the life and thought of 
the people that it is now almost taken for granted and it 
would be regarded an act of insanity for any one to think 
otherwise. But this has been accomplished after a long 
fight culminating in the Act of Settlement, 1688. Prior to the 
enactment of that Act, a Judge in England held tenure at 
the pleasure of the Crown and the Sovereign could dismiss 
a Judge at his discretion, if the Judge did not deliver 
judgments to his liking. No less illustrious a Judge than 
Lord Coke was dismissed by Charles I for his glorious and 
courageous refusal to obey the King's writ de non 
procedendo rege inconsulto commanding him to step or 
to delay proceedings in his Court. The Act. of Settlement, 
1688 put it out of the power of the Sovereign to dismiss a 
Judge at pleasure by substituting 'tenure during good 
behaviour' for 'tenure at pleasure'. The Judge could then 
say, as did Lord Bowen so eloquently: 
These are not days in which any English Judge will fail to 
assert his right to rise in the proud consciousness that 
justice is administered in the realms of Her Majesty the 
Queen, immaculate, unspotted, and unsuspected. There 
is no human being whose smile or frown, there is no 
Government, Tory or Liberal, whose favour or disfavour can 
start the pulse of an English Judge upon the Bench, or 
F 
move by one hair's breadth the even equipoise of the scales 
of
justice. 
The framers of our Constitution were aware of these 
constitutional developments in England and they were 
conscious of our great tradition of judicial independence 
G 
and impartiality and they realised that the need for securing 
the independence of the judiciary was even greater under 
our Constitution than it was in England, because ours is a 
federal or quasi-federal Constitution which confers 
fundamental rights. enacts other constitutional limitations 
H
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
and arms the Supreme Court and the High Courts with the 
A 
power of judicial review and consequently the Union of India 
and the States would become the largest single litigants 
before the Supreme Court and the High Courts. Justice, 
as pointed out by this Court in Shamsher Singh v. State of 
Punjab, (1974) 2 SCC 831. can become "fearless and free 
B 
only if institutional immunity and autonomy are guaranteed". 
The Constitution-makers. therefore. enacted several 
provisions designed to secure the independence of the 
su erior 'udicia b insula in it from executive or le islative 
control. I shall briefly refer to these provisions to show how 
great was the anxiety of the constitution-makers to ensure 
the independence of the superior judiciary and with what 
meticulous care they made provisions to that end." 
In continuation of the instant submission, learned 
D 
counsel placed reliance on the Second Judges case, and drew 
our attention to the following observations recorded by S. 
Ratnavel Pandian, J.: 
"54. Having regard to the importance of this concept the 
Framers of our Constitution having before them the views 
E 
of the Federal Court and of the High Court have said in a 
memorandum: 
"We have assumed that it is recognised on all hands that 
the independence and integrity of the judiciary in a 
democratic system of government is of the highe.st F 
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 high-
handed exercise of power by the executive ... in making 
the following proposals and suggestions, the paramount G 
importance of securing the fearless functioning of an 
independent and efficient judiciary has been steadily kept 
in view. (vide B. Shiva Rao: The Framing of India's 
Constitution, Volume 1-B, p. 196) 
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55. In this context. we may make it clear by borrowing the 
inimitable words of Justice Krishna Iyer "Independence of 
the judiciary is not genuflexion. nor js it opposition of 
Government". Vide Mainstream - November 22. 1980 and 
at one point of time Justice Krishna Iyer characterised this 
concept as a "Constitutional Religion". 
56. lndisputab!y, this concept of independence of judiciary 
which is inextricably linked and connected with the 
constitutional process related to the functioning of judiciary 
is a "fixed-star" in our constitutional consultation and its 
voice centres_ around the philosophy of the Constitution. 
The basic postulate of this concept is to have a more 
effective judicial system with its full vigour and vitality so 
as to secure and strengthen the imperative confidence of 
the people in the administration of justice. It is only with the 
object of successfully achieving this principle and 
salvaging much of the problems concerning the present 
judicial system. it is inter alia, contended that in the matter 
of appointment of Judges to the High Courts and Supreme 
Court 'primacy' to the opinion of the CJI which is only a 
facet of this concept. should be accorded so that the 
independence of judiciary is firmly secured and protected 
and the hyperbolic executive intrusion to impose its own 
selectee on the superjor judiciary is effectively controlled 
and curbed." 
And from the
same judgment, reference was made to 
the following observations of Kuldip Singh, J.: 
"335. Then the guestion which comes up for consideration 
is, can there be an independent judiciary when the power 
of appointment of judges vests in the executive? To say 
yes, would be illogical. The independence of judiciary is 
inextricably linked and connected with the constitutional 
process of appointment of judges of the higher judiciary. 
'Independence of Judiciary' is the basic feature of our
SUPREME COURT ADVOCATES-ON-RECORD 
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Constitution and if it means what we have discussed above, 
A 
then the Framers of the Constitution could have never 
intended to give this power to the executive. Even otherwise 
the Governments - Central or the State - are parties before 
the Courts in large number of cases. The Union Executive 
have vital interests in various important matters which come 
B 
for adjudication b~fore the Apex Court. The executive - in 
one form or the other - is the largest single litigant before 
the courts. In this view of the matter the judiciary being the 
mediator - between the people and the executive - the 
Framers of the Constitution could not have left the final 
C 
authority to appoint the Judges of the Supreme Court and 
of the High Courts in the hands of the executive. This Court 
in S.P. Gupta v. Union of India, 1981 Supp SCC 87 
proceeded on the assumption that the independence of D 
judiciary is the basic feature of the Constitution but failed 
to appreciate that the interpretation, it gave, was not in 
conformity with broader facets of the two concepts -
'independence of judiciary' and 'judicial review' - which are 
interlinked." 
Based on the above conclusions, it was submitted, that 
"independence of the judiciary" could be maintained, only if 
appointments of Judges to the higher judiciary, were made by 
according primacy to the opinion of the Chief Justice, based 
E 
on the decision
of a collegium of Judges. Only then, the 
F 
executive and legislative intrusion, could be effectively 
controlled and curbed. 
9. Learned counsel, then ventured to make a reference 
to the frequently quoted speech of Dr. B. R. Ambedkar (in the G 
Constituent Assembly on 24.5.1949). It was submitted, that 
the above speech was duly considered in the Second Judges 
case, wherein this Court concluded as under: 
"389. Having held that the primacy in the matter of 
appointment of Judges to the superior courts vests with 
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the judiciary, the crucial question which arises for 
consideration is whether the Chief Justice of India, under 
the Constitution, acts as a "persona designata" or as the 
leader - spokesman for the judiciary. 
390. The constitutional scheme does not give primacy to 
any individual. Article 124(2) provides consultation with the 
Chief Justice of India, Judges of the Supreme Court and 
Judges of the High Courts. Likewise Article 217(1) talks of 
Chief Justice of India and the Chief Justice of the High 
Court. Plurality of consultations has been clearly indicated 
by the Framers of the Constitution. On first reading one 
gets the impression as if the Judges of the Sumeme Court 
and High Courts have not been included in the process of 
consultation under Article 217(1) but on a closer scrutiny 
of the constitutional scheme one finds that this was not 
.the intention of the Framers of the Constitution. There is 
no justification whatsoever, for excluding the puisne 
Judges of the Supreme Court and of the High Court from 
the "consultee zone" under Article 217 ( 1 ) of the Constitution. 
391. According to Mr Nariman it would not be a strained 
construction to construe the expressions "Chief Justice of 
India" and "Chief Justice of the High Courts" in the sense 
of the collectivity of Judges, the Supreme Court as 
represented by the Chief Justice of India and all the High 
Courts (of the States concerned) as
represented by the 
Chief Justice of the High Court. Abare reading of Articles 124(2) 
and 217(1) makes it clear that the Framers of the 
Constitution did not intend to leave the final word. in the 
·~alter of appointment of Judges to the superior Courts. in 
the hands of any individual howsoever high he is placed jn the 
constitutional hierarchy Collective wisdom of the consultees 
is the sine qua non for such appointments. Dr B.R. 
Ambedkar in his speech dated May 24, 1949 in the Constituent 
Assembly explaining the scope of the draft articles pertaining 
to the appointment of Judges to the Supreme Court ...
SUPREME COURT ADVOCATES-ON-RECORD 
271 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
xxx 
xxx 
. xxx 
A 
392. Dr Ambedkar did not see any difficulty in the smooth 
operation of the constitutional provisions concerning the 
appointment. of Judges to the superior Courts. Having 
entrusted the work to high constitutional functionaries the 
Framers of the Constitution felt assured that such 
B 
appointments would always be made by consensus. It is 
the functioning of the Constitution during the past more 
than four decades which has brought the necessity of 
considering the question of primacy in the matter of such 
appointments. Once we hold that the primacy lies with the C 
judiciary. then it is the judiciary as collectivity which has 
the primal say and not any jndivjdual not even the Chjef 
Justice of India. If we interpret the expression "the Chief 
Justice of India" as a "persona designata" then it would 
D 
amount "to allow the Chief Justice practically veto upon 
the appointment of Judges" which the Framers of the 
Constitution in the words of Dr Ambedkar never intended 
to do. We are. therefore. of the view that the expressions -
"the Chief Justice of India" and the "Chief Justice of the 
E 
High Court" in Articles 124(2) and 217(1) of the Constitution 
mean the said judicial functionaries as representatives of 
their respective courts." 
In conjunction with the observations extracted 
hereinabove, the Court's attention was also invited to the 
F 
following further
conclusions: 
"466. It has to be borne in mind that the principle of non-
arbitrariness which is an essential attribute of the rule of 
law is all pervasive throughout the Constitution; and an 
adjunct of this principle is the absence of absolute power G 
in one individual in any sphere of constitutional activity. The 
possibility of intrusion of arbitrariness has to be kept in view, 
and eschewed, in constitutional interpretatioh and, 
therefore, the meaning of the opinion of the Chief Justice 
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·of India, in the context of primacy, must be ascertained. A 
homogenous mixture, which accords with the constitutional 
purpose and its ethos, indicates that it is the opinion of the 
judiciary 'symbolised by the view of the Chief Justice of 
India' which is given greater significance or primacy in the 
matter of appointments. In other words, the view of the 
Chief Justice of India is to be expressed in the consultative 
process as truly reflective of the opinion of the judiciary, 
which means that it must necessarily have the element of 
plurality in its formation. In actual practice. this is how the 
Chief Justice of India does. and is expected to function so 
that the final opinion expressed by him is not merely his 
individual opinion. but the collective opinion formed after 
taking into account the views of some other Judges who 
are traditionally associated with this function. 
467. In view of the primacy of. judiciary in this process the 
question next. is of the modality for achieving this puroose. 
The indication in the constitutional provisions is found from 
the reference to the office of the Chief Justice of India. which 
has been named for achieving this object in a pragmatic 
manner. The opinion of the judiciary 'symbolised by the 
view of the Chief Justice of India' is to be obtained by 
consultation with the Chief Justice of India: and it is this 
opinion which has primacy. 
468. The rule
of law envisages the area of discretion to be 
the minimum, requiring only the application of known 
principles or guidelines to ensure non-arbitrariness, but to 
that limited extent, discretion is a pragmatic need. 
Conferring discretion upon high functionaries and, 
whenever feasible, introducing the element of plurality by 
requiring a collective decision, are further checks against 
arbitrariness. This is how idealism and pragmatism are 
reconciled and integrated, to make the system workable 
in a satisfactory manner. Entrustment of the task of 
appointment of superior judges to high constitutional
SUPREME COURT ADVOCATES-ON-RECORD 
273 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
functionaries: the greatest significance attached to the view A 
of the Chief Justice of India. who is best equipped to assess 
the true worth of the candidates for adjudging their 
suitability: the opinion of the Chief Justice of India being 
the collective opinion formed after taking into account the 
views of some of his colleagues: and the executive being 
B 
permitted to prevent an appointment considered to be 
unsuitable. for strong reasons disclosed to the Chief Justice 
of India. provide the best method. in the constitutional 
scheme. to achieve the constitutional purpose without 
conferring absolute discretion or veto upon either the 
judiciary or the executive. much less in any individual. be 
he the Chief Justice of India or the Prime Minister." 
c 
10. It was the emphatic contention of the learned counsel, 
that the conclusions recorded by this Court in the Second 
D 
Judges case, had been accepted by the executive and the 
legislature. It was acknowledged, that in the matter of 
appointment of Judges to the higher judiciary, primacy would 
vest with the judiciary, and further that, the opinion of the 
judiciary would have an element of plurality. This assertion 
E 
was sought to be further established, by placing reliance on 
the Third Judges case. It was submitted, that the conclusions 
of the majority judgment, in the Second Judges case, were 
reproduced in paragraph 9 of
the Third Judges case, and 
thereupon, this Court recorded the statement of the then 
Attorney General, that through the Presidential Reference, the 
Union of India was not seeking, a review or reconsideration, 
of the judgment in the Second Judges case. And that, the Union 
of India had accepted the above majority judgment, as binding. 
F 
In this context, paragraphs 10 to 12 of the Third Judges case, 
G 
which were relied upon, are being reproduced below: 
"10. We have heard the learned Attorney General, learned 
counsel for the interveners and some of the High Courts 
and the Advocates General of some States. 
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A 
11. We record at the outset the statements of the Attorney 
General that (1) the Union of India is not seeking a review 
or reconsjderation of the judgment jn the Second Judges 
case (1993\ 4 sec 441 and that (2) the Union of India 
shall accept and treat as binding the answers of this Court 
B 
to the questions set out in the Reference. 
12. The majority view in the Second Judges case (1993)4 
sec 441 is that in the matter of appointments to the 
Supreme Court and the High Courts. the ooinion of the 
c 
Chief Justice of India has primacy. The opinion of the Chief 
Justice of lncjja is "reflective of the opinion of the judjciary, 
which means that it must necessarily have the element of 
plurality in its formation". It is to be formed "after taking into 
account the view of some other Judges who are traditionally 
D 
associated with this function". The opinion of the Chief 
Justice of India "so given has primacy in the matter of all 
appointments". For an appointment to be made, it has to 
be "in conformity with the final opinion of the Chief Justice 
of India formed in the manner indicated". It must follow that 
E 
an opinion formed by the Chief Justice of India in any 
manner other than that indicated has no primacy in the 
matter of appointments to the Supreme Court and the High 
Courts and the Government is not obliged to act thereon." 
F 
11. Learned counsel invited the Court's attention, to the 
third conclusion drawn in
Madras Bar Association v. Union of 
lndia35 , which is placed below: 
"136.(iii) The "basic structure" of the Constitution will stand 
violated if while enacting legislation pertaining to transfer 
G 
of judicial power, Parliament does not ensure that the newly 
created court/tribunal conforms with the salient 
characteristics and standards of the court sought to be 
substituted." 
H 
"(2014) 10 sec 1
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275 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
• 
Learned counsel then asserted, that the "basic structure" A 
of the Constitution would stand violated if, in amending the 
Constitution and/or enacting legislation, Parliament does not 
ensure, that the body newly created, conformed with the salient 
characteristics and the standards of the body sought to be 
substituted. It was asserted, that the salient features of the 
B 
existing process of appointment of Judges to the higher 
judiciary, which had stood the test oftime, could validly and 
constitutionally be replaced, but while substituting the prevailing 
procedure, the salient characteristics which existed earlier, had 
to be preserved. By placing reliance on Articles 124 and 217, 
C 
it was asserted, that the above provisions, as originally 
enacted, were explained by decisions of this Court, starting 
from 197 4 in Samsher Singh v. State of Punjab 11 , followed by 
the Sankalchand Himatlal Sheth case5 in 1977, and the Second D 
Judges case in 1993, and finally endorsed in 1998 by the Third 
Judges case. It was submitted, that four Constitution Benches 
of the Supreme Court, had only affirmed the practice followed 
by the executive since 1950 (when the people of this country, 
agreed to be governed by the Constitution). It was pointed 
E 
out, that the process of appointment of Judges to the higher 
judiciary, had continued to remain a participatory consultative 
process,
wherein the initiation of the proposal for appointment 
of a Judge to the Supreme Court, was by the Chief Justice of 
India; and in the case of appointment of Judges to High Courts, 
F 
by the Chief Justice of the concerned High Court. And that, for 
transfer of a Judge/Chief Justice of a High Court, to another 
High Court, the proposal was initiated by the Chief Justice of 
India. It was contended, that in the process of taking a decision 
on the above matters (of appointment and transfer), the opinion G 
of thejudiciary was symbolized through the Chief Justice of 
India, and th~,sar'lle was based on the decision of a collegium 
of Judges, since 1993 -when the Second Judges case was 
decided. The only exception to the above rule, according to 
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A 
learned counsel, was when the executive, based on stated 
strong cogent reasons (disclosed to the Chief Justice of India), 
felt otherwise. However, if the stated reasons, as were 
disclosed to the Chief Justice of India, were not accepted, the 
decision of a collegium of Judges on reiteration, would result 
B in the proposed appointmenUtransfer. This, according to 
learned counsel, constituted the earlier procedure under 
Articles 124 and 217. The aforesaid procedure, was 
considered as sufficient, to preserve the "independence of the 
judiciary". 
c 
12. According to learned counsel, it needed to be 
determined, whether the NJAC now set up, had the same or 
similar characteristics, in the matter of appointments/transfers, 
which would preserve the "independence of the judiciary"? 
o Answering the query, learned counsel was emphatic, that the 
primacy of the judiciary, had been totally eroded through the 
impugned constitutional amendment. For the above, learned 
counsel invited our attention to Article 124A inserted by the 
Constitution(99thAmendment)Act. It was submitted, that the 
E NJAC contemplated under Article 124A would comprise of six 
Members, namely, the Chief Justice of India, two senior Judges 
of the Supreme Court (next to the Chief Justice), the Union 
Minister in charge of Law and Justice, and two "eminent 
persons". It was submitted, that the judges component, which 
F 
had the primacy (and in a manner of
understanding -
unanimity), under the erstwhile procedure, had now been 
reduced to half-strength, in the selecting body-the NJAC. It 
was pointed out, that the Chief Justice of India, would now have 
an equivalent voting right, as the other Members of the NJAC. 
G It was submitted, that even though the Chief Justice of India 
would be the Chairman of the NJAC, he has no casting vote, 
in the event of a tie. It was submitted, that under the substituted 
procedure, even if the Chief Justice of India, and the two other 
H senior Judges of the Supreme Court (next to the Chief Justice
SUPREME COURT ADVOCATES-ON-RECORQ 
277 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
of India), supported the appointmenUtransfer of an individual, A 
the same could be negatived, by any two Members of the 
NJAC. Even by the two "eminent persons" who may have no 
direct or indirect nexus with the process of administration of 
justice. It was therefore submitted, that the primacy vested 
with Ure Chief Justice of India had been fully and completely B 
eroded. 
13. With reference to the subject of primacy of the 
judiciary, it was asserted, that under the system sought to be 
substituted, the proposal for appointment of Judges to the c 
Supreme Court, could only have been initiated by the Chief 
Justice of India. And likewise, the proposal for transfer of a 
Judge or the Chief Justice of a High Court, could only have 
been initiated by the Chief Justice of India. And likewise, the 
proposal for appointment of a Judge to a High Court, could o 
only have been initiated by the Chief Justice of the concerned 
High Court. In order to demonstrate the changed position, 
learned counsel placed reliance on Article 1248 introduced 
by the Constitution (99th Amendment) Act, whereunder, the 
aµthority to initiate the process, had now been vested with the 
E 
NJAC. Under the new dispensation, the NJAC alone would 
recommend persons for appointment as Judges to the higher 
judiciary. It was also apparent, according to learned counsel, 
that the NJAC has now been bestowed with the
exclusive 
responsibility to recommend transfers of Chief Justices and 
F 
Judges of High Courts. Having described the aforesaid 
alteration as a total subversion of the prevailing procedure, 
which had stood the test of time, and had secured the 
independence of the process of appointment and transfer of 
Judges of the higher judiciary, .it was pointed out, that the 
G 
Parliament had not disclosed the reasons, why the primacy of 
the Chief Justice of India and the other senior Judges, had to 
be·dispensed with. Or for that matter, why the prevailing 
procedure needed to be altered. It was further the contention 
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A 
of learned counsel, that the non-disclosure of reasons, must 
inevitably lead to the inference, that there were no such 
reasons. 
14. Dr. Rajeev Dhavan, learned senior counsel, also 
8 
advanced submissions, with reference to the "basic structure", 
and the scope of amending the provisions of the Constitution. 
Dwelling upon the power of Parliament to amend the 
Constitution, it was submitted, that this Court in Kesavananda 
Bharati v. State of Kerala 10, had declared, that the "basic 
c structure" of the Constitution, was not susceptible or amenable 
to amendment. Inviting our attention to Article 368, it was 
submitted, that the power vested with the Parliament to amend 
the Constitution, contemplated the extension of the constituent 
power, which was exercised by the Constituent Assembly, while 
D framing the Constitution. It was pointed out, that in exercise of 
the above power, the Parliament had been permitted to 
discharge the same role as the Constituent Assembly. The 
provisions of the Constitution, it was asserted, could be 
amended, to keep pace with developments in the civil society, 
E so long as the amendment was not in violation of the "basic 
structure" of the Constitution. It was submitted, that it was not 
enough, in the facts and circumstances of the present case, to 
determine the validity of the constitutional amendment in 
question, by limiting the examination to a determination, 
F whether or not the
"independence of the judiciary" stood 
breached, on a plain reading of the provisions sought to be 
amended. It was asserted, that it was imperative to take into 
consideration, judgments rendered by this Court, on the subject. 
It was asserted, that this Court was liable to examine the 
G declared position of law, in the First, Second and Third Judges 
cases, insofar as the present controversy was concerned. 
According to learned counsel, if the enactments under 
challenge, were found to be in breach of the "basic structure" 
H of the Constitution, as declared in the above judgments, the
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279 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
impugned constitutional amendment, as also, the legislation 
A 
under reference, would undoubtedly be constitutionally invalid. 
15; In the above context, learned counsel pointed out, 
that with reference to an amendmentto the fundamental right(s ), 
enshrined in Part Ill of the Constitution, guidelines were laid 
8 
down by this Court in M. Nagaraj v. Union of lndia36, as also, in 
the Kihoto Hallahan case34 • It was submitted, that the change 
through the impugned amendment to the Constitution, (and by 
the NJAC Act) was not a peripheral change, but was a 
substantial one, which was also seemingly irreversible. And c 
therefore, according to learned counsel, its validity would have 
to be determined, on the basis of the width arid the identity 
tests. It was submitted, that the width and the identity tests were 
different from the tests applicable for determining the validity 
of ordinary parliamentary legislation, or a constitutional 
D 
amendment relating to fundamental rights. The manner of 
working out the width and the identity tests, it was submitted, 
had been laid down in the M. Nagaraj case36, wherein this Court 
held: 
"9. On behalf of the respondents, the following arguments 
E 
were advanced. The power of amendment under Article 
368 is a "constituent" power and not a "constituted power"; 
that, that there are no implied limitations on the constituent 
power under Article
368; that, the power under Article 368 
has to keep the Constitution in repair as and when it 
F 
becomes necessary and thereby protect and preserve the 
basic structure. In such process of amendment, if it 
destroys the basic feature of the Constitution, the 
amendment will be unconstitutional. The Constitution, G 
according to the respondents is not merely what it says. It 
js what the last interpretation of the relevant provision of 
the Constitution given by the Supreme Court which prevails 
as a law. The interoretation placed on the Constitution by 
'' (2006) a sec 212 
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A 
the Court becomes part of the Constitution and. therefore. 
it is open to amendment under Article 368. An interpretation 
placed by the Court on any provision of the Constitution 
gets inbuilt in the provisions interpreted. ·such articles are 
capable of amendment underArticle 368. Such change of 
B 
the law so declared by the Supreme Court will not merely 
for that reason alone violate the basic structure of the 
Constitution or amount to usurpation of judicial power. This 
is how the Constitution becomes dynamic. Law has to 
c 
D 
E 
change. It requires amendments to the Constitution 
according to the needs of time and needs of society. It is 
an ongoing process of judicial and constituent powers, both 
contributing to change of law with the final say in the 
judiciary to pronounce on the validity of such change of 
law effected by the constituent power by examining whether 
such amendments violate the basic structure of the 
Constitution. On every occasion when a constitutional 
matter comes before the Court. the meaning of the 
provisions of the Constitution will call for interpretation, but 
every interpretation of the article does not become a basic 
feature of the Constitution. That. there are no implied 
limitations on the power of Parliament under Article 368 
when it seeks to amend the Constitution. However. an 
amendment will be invalid, if it interferes with or undermines 
F 
the basic structure. The valrdrty of
the amendment is not 
to be decided on the touchstone of Article 13 but only on 
the basis of violation of the basic features of the 
Constitution." 
16. It was submitted, that whilst the Parliament had the 
G power to amend the Constitution; the legislature (- or the 
executive), had no power to either interpret the Constitution, 
or to determine the validity of an amendment to the provisions 
of the Constitution. The power to determine the validity of a 
constitutional amendment, according to learned counsel, 
H
SUPREME COURT ADVOCATES-ON-RECORD 
281 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
exclusively rests with the higher judiciary. Every amendment A 
had to be tested on the touchstone of "basic structure" - as 
declared by the judiciary. It was submitted, that the aforesaid 
power vested with the judiciary, could not be withdrawn or 
revoked. This, according to learned counsel, constituted the 
fundamental judicial power, and was no less significant/weighty B 
than the legislative power of Parliament. The importance of 
the power of judicial review vested with the higher judiciary (to 
examine the validity of executive and legislative actions), 
bestowed superiority to the judiciary over the other two pillars 
of governance. This position, it was pointed out, was critical C 
to balance the power surrendered by the civil society, in favour 
of the political and the executive sovereignty. 
17. In order to determine the validity of the submissions 
advanced on behalf of the petitioners, we were informed, that D 
the interpretation placed by the Supreme Court on Articles 124 
and 217 (as they existed, prior to the impugned amendment), 
would have to be kept in mind. It was submitted, that the term 
"consultation" with ·reference to Article 124, had been 
understood as conferring primacy with the judiciary. Therefore, 
E 
while examining the impugned constitutional amendment to 
Article 124, it was imperative for this Court, to understand the 
term "consultation" in Article
124, and to read it as, conferring 
primacy in the matter of appointment of Judges, with the 
judiciary. Under Article 124, according to learned counsel, the 
F 
President was not required to merely "consult" the Chief Justice 
of India, but the executive was to accede to the view expressed 
by the Chief Justice of India. Insofar as the term "Chief Justice 
of India" is concerned, it was submitted, that the same had 
also been understood to mean, not the individual opinion of G 
the Chief Justice of India, but the opinion of the judiciary 
symbolized through the Chief Justice of India. Accordingly, it 
was emphasized, that the individual opinion of the Chief Justice 
(with reference to Articles 124 and 217) was understood as 
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A the institutional opinion of the judiciary. Accordingly, whilst 
examining the impugned constitutional amendment, under the 
width and the identity test(s), the above declared legal position, 
had to be kept in mind while determining, whether or not the 
impugned constitutional amendment, and the impugned 
B legislative enactment, had breached the "basic structure" of 
the Constitution. 
18. It was contended, that the judgment in the Second 
Judges case, should be accepted as the touchstone, by which 
C the validity of the impugned constitutional amendment (and 
the NJACAct), must be examined. It was submitted, thatthe 
power exercised by the Parliament under Article 368, in giving 
effect to the impugned constitutional amendment (and by 
enacting the NJAC Act), will have to be tested in a manner, 
o that will allow an organic adaptation to the changing times, 
and at the same time ensure, that the "basic structure" of the 
Constitution was not violated. Relying on the M. Nagaraj 
case36, the Court's attention was drawn to the following 
observations: 
E 
F 
G 
H 
"18. The key issue. which arises for determination in this 
case is-whether by virtue of the impugned constitutional 
amendments. the power of Parliament is so enlarged so 
as to obliterate any or all of the constitutional limitations 
and reguirements? 
Standards of judicial review of constitutional amendments 
19. The Constitution is not an ephemeral legal document
embodying a set of legal rules for the passing hour. It sets 
out principles for an expanding future and is intended to · 
endure for ages to come and consequently to be adapted 
to the varjous crises of human affairs. Therefore, a 
puroosive rather than a strict literal approach to the 
interpretation should be adopted. A constitutional provision 
must be construed not in a narrow and constricted sense 
but in a wide and liberal manner so as to anticipate and
SUPREME COURT ADVOCATES-ON-RECORD 
283 
ASSOCIATION v. U.0.1. [JAGDISH_SINGH KHEHAR, J.] 
take account of changing conditions and purposes so that A 
a constitutional provision does not get fossilised but 
remains flexible enough to meet the newly emerging 
problems and challenges." 
Learned senior counsel, also drew the Court's attention 
to similar observations recorded in the Second Judges case. 
8 
19. Learned counsel was emphatic, that the impugned 
constitutional ar:nendment (and the provisions of the NJACAct), 
if approved, would remain in place for ten ... , twenty ... , thirty or 
even forty years, and therefore, need to tie viewed closely and c 
objectively. The provisions will have to be interpreted in a 
manner, that the "independence of the judiciary" would not be 
compromised. It was submitted, that ifthe impugned provisions 
were to be declared as constitutionally valid, there would be 
no means hereafter, to restore the "independence of the 
D 
judiciary". 
20. According to learned counsel, the question was of 
the purity of the justice delivery system. The question was about 
the maintenance of judicial standards. All these questions 
E 
emerged from the fountainhead, namely, the manner of 
appointment of Judges to the higher judiciary. The provisions 
of Article 124, it was pointed out, as it existed prior to the 
impugned amendment, had provided for a system of 
trusteeship, wherein institutional predominance of the judiciary F 
was the hallmark. It was
submitted, that the aforesaid 
trusteeship should not be permitted to be shared by those, 
whose rival claims arose for consideration before Courts of 
law. The judicial responsibility in the matter of appointment of 
Judges, according to learned counsel, being the most G 
important trusteeship, could not be permitted to be shared, 
with either the executive or the legislature. 
21. Referring to the amendment itself, it was contended, 
that merely changing the basis of the legislation, would not be 
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[2015] 13 S.C.R. 
A 
the correct test to evaluate the actions of the Parliament, in the 
present controversy. 
It was likewise submitted, that 
reasonableness and proportionality were also not the correct. 
test(s) to be applied. According to learned counsel, in order 
to determine the validity of the impugned constitutional 
B 
amendment (and the NJAC Act), the Union of India and the 
ratifying States will have to bear .the onus of satisfactorily 
establishing, that the amended provisions, could under no 
circumstances, be used (actually misused) to subvert the 
"independence of the judiciary". Placing reliance on the M. 
C 
Nagaraj case36, the Court's attention was invited to the following 
observations: 
"22. The question which arises before us is regarding the 
nature of the standards of judicial review required to be 
0 
applied in judging the validity of the constitutional 
amendments in th$ context of the doctrine of basic 
structure. The concept of a basic structure giving 
coherence and durability to a Constitution has a certain 
intrinsic force. This doctrine has essentially developed from 
E 
the German Constitution. This development is the 
emergence of the constitutional principles in their own right. 
It is not based on literal wordings. 
F 
G 
H 
23 ...... In S.R. Bommai (1994) 3 SCC 1 the Court clearly 
based its conclusion not so much on violation of particular 
constitutional provisions but on this generalised ground i.e.
evidence of a pattern of action directed against the principle 
of secularism. Therefore, it is important to note that the 
recognition of a basic structure in the context of 
amendment provides an insight that there are, beyond the 
words of particular provisions, systematic principles 
underlying and connecting the provisions of the 
Constitution. These principles give coherence to the 
Constitution and make it an organic whole. These principles 
are part of constitutional law even if they are not expressly
SUPREME COURT ADVOCATES-ON-RECORD 
285 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
stated in the form of rules. An instance is the principle of A 
reasonableness which connects Articles 14, 19 and 21. 
Some of these principles may be so important and 
fundamental as to qualify as "essential features" or part of 
the "basic structure" of the Constitution. that is to say they 
are not open to amendment. However, it is only by linking 
B 
provisions to such overarching principles that one would 
be able to distinguish essential from less essential 
features of the Constitution. 
)()()( 
)()()( 
)()()( 
25. For a constitutional principle to qualify as an essential 
C 
feature. it must be established that the said principle is a 
part of the constitutional law binding on the legislature. Only 
thereafter. is the second step to be taken. namely. whether 
the principle is so fundamental as to bind even the 
D 
amending power of Parliament i.e. to form a part of the 
basic structure. The basic structure concept accordingly 
limits the amending power of Parliament. To sum up: in 
order to qualify as an essential feature, a principle is to be 
first established as part of the constitutional law and as 
E 
such binding on the legislature. Only then, can it be 
examined whether it is so fundamental as to bind even the 
amending power of Parliament i.e. to form part of the basic 
structure of the Constitution. This is the standard of judicial 
review of constitutional amendments
in the context of the 
F 
doctrine of basic structure. 
)()()( 
< 
)()()( 
)()()( 
30. Constitutional adjudication is like no other decision-
making. There is a moral dimension to every major 
constitutional case; the language of the text is not G 
necessarily a controlling factor. Our Constitution works 
because of its generalities, and because of the good sense 
of the judges when interpreting it. It is that ir.tformed freedom 
of action of the judges that helps to preserve and protect 
our basic document of governance. 
H
286 
A 
B 
c 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
xxx 
xxx 
xxx 
35. The theorv of basic structure is based on the pdncjple 
that a change in a thing does not involve its destruction 
and destruction of a thing is a matter of substance and not 
of form. Therefore, one has to apply the test of overarching 
principle to be gathered from the scheme and the 
placement and the structure of an article in the Constitution. 
For example, the placement of J.\rticle 14 in the .equality 
code; the placement of Article 19 in the freedom code; the 
placement Qf Article 32 in the code giving access to the 
Supreme Court. Therefore, the theory of basic structure is 
the only theory by which the validity of impugned 
amendments to the Constitution is to be judged." 
22. Referring to the position expressed by this Court, 
0 
learned counsel submitted, that the overarching principle for 
this Court, was to first keep in its mind, the exact nature of the 
amendment contemplated through the Constitution (99th 
Arncndment)Act. And the second step was, to detenmine how 
fundamental the amended provision was. For this, reliance was 
E 
again placed on the M. Nagaraj case36, and our attention was 
F 
G 
H 
drawn to the following conclusions: 
"102. In the matter of application of the principle of basic 
structure, twin tests have to be satisfied namely the "width · 
test" and the test of "identity". As stated hereinabove, the 
concept of the "catch-up" rule and "consequential seniority" 
are
not constitutional requirements. They are not implicit 
in clauses (1) and (4) o_f Article 16. They are not 
constitutional limitations. They are concepts derived from 
service jurisprudence. They are not constitutional 
principles. They are not axioms like, secularism, 
federalism, etc. Obliteration of these concepts or insertion 
of these concepts does not change the equality code 
indicated by Articles 14, 15 and 16 of the Constitution. 
Clause (1) of Article 16 cannot prevent the State from taking
SUPREME COURT ADVOCATES-ON-RECORD 
287 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
cognizance of the compelling interests of Backward A 
Classes in the society. Clauses (1) and (4) of Article 16 
are restatements of the principle of equality under Article 
14. Clause (4) of Article 16 refers to affirmative action by 
way of reservation. Clause (4) of Article 16, however, states 
that the appropriate Government is free to provide for 
B 
reservation in cases where it is satisfied on the basis of 
quantifiable data that Backward Class is inadequately 
represented in the services. Therefore, in every case where 
the State decides to provide for reservation there must exist · 
two circumstances, namely, "backwardness" and C 
. "inadequacy of representation". As stated above, equity, 
justice and efficiency are variable factors. These factors 
are context-specific. There is no fixed yardstick to identify 
and measure these three factors, it will depend on the facts 
D 
and circumstances of each case. These are the limitations 
on the mode of the exercise of power by the State. None of 
these limitations have been removed by the impugned 
amendments. If the State concerned fails to identify and 
measure backwardness, inadequacy and overall 
E 
administrative efficiency then in that event the provision 
for reservation would be invalid. These amendments do 
riot alter the structure of Articles 14. 15 and 16 (eguity code). 
The parameters mentioned in Article 16(4) are
retained. 
Clause {4-A) is derived from clause (4) of Article 16. Clause 
F 
{4-A) is confined to SCs and STs alone. Therefore the 
present case does not change the identity of the 
Constitution. The word "amendment" connotes change. 
· The question is-whether the impugned amendments 
discard the original Constitution. It was vehemently urged 
G 
on behalf of the petitioners that the Statement of Objects 
and Reasons indicates that the impugned amendments 
. have been promulgated by Parliament to overrule the 
decisions of this Court. We de not find any merit in this 
argtJment. Under Art1c1c 141 of ;<;.., Constitution the 
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SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
pronouncement of this Court is the law of the land. The 
judgments of this Court in Union of India ·v. Viroal Singh 
Chauhan. (1995) 6 SCC 684 .... Ajit Singh Januja v. State 
of Punjab. (1996) 2 SCC 715 .... Ajit Singh (II) v. State of 
Punjab. (1999\ 7 SCC 209 ... and Indra Sawhney v. Union 
B 
of India. 1992 Supp (3) SCC 217 ... were judgments 
delivered by this Court which enunciated the law of the 
land. It is that law which is sought to be changed by the 
impugned constitutional amendments. The impugned 
c 
D 
E 
constitutional amendments are enabling in nature. They 
leave it to the States to provide for reservation. It is well 
settled that Parliament while enacting a law does not 
provide content to the "right". The content is provided by 
the judgments of the Supreme Court. If the appropriate 
Government enacts a law providing for reservation without 
keeping in mind the parameters in Article 16(4) and Article 
335 then this Court will certainly set asjde and strike down 
such legislation. Applying the "width test". we do not find 
obliteration of any of the constitutional limitations. Applying 
the test of "identity". we do not find any alteration in the 
existing structure of the equality code. As stated above, 
none of the axioms like secularism, federalism, etc. which 
are overarching principles have been violated by the 
impugned constitutional amendments. Equality has two 
F 
facets- "formal equality" and
'.'proportional equality". 
Proportional equality is equality "in fact" whereas formal 
equality is equality "in law". Formal equality exists in the 
rule of law. In the case of proportional equality the State is 
expected to take affirmative steps in favour of 
G 
disadvantaged sections of the society within the framework 
of liberal democracy. Egalitarian equality is proportional 
equality." 
H 
Yet again referring to the width and the identity tests, 
learned counsel emphasized, that it was imperative for this
SUPREME COURT ADVOCATES-ON-RECORD 
289 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Court, in the facts and circumstances of the present case, to 
A 
examine whether the power of amendment exercised by the 
Parliament, was so wide as to make it excessive .. For the 
above, reference was made to the Madras Bar Association 
case35, wherein this Court recorded the following conclusions: 
"134.(i) Parliament has the power to enact legislation and 8 
to vest adjudicatory functions earlier vested in the. High 
Court with an alternative court/tribunal. Exercise of such 
power by Parliament would not per se violate the "basic 
structure" of the Constitution. 
C 
135.(ii) Recognised constitutional conventions pertaining 
to the Westminster model do not debar the legislating 
authority from enacting legislation· to vest adjudicatory 
functions earlier vested in a superior court with an 
alternative court/tribunal. Exercise of such power by 
D 
Parliament would per se not violate any constitutional 
convention. 
fr 
' 
136.(iii) The ''.basic structure" of the Constitution will stand 
violated if while enacting legislation pertaining to transfer 
of judicial power. Parliament does not ensure that the newly 
E 
created court/tribunal conforms with the salient 
characteristics and standards of the court sought to. be 
substituted. 
137 .(iv) Constitutional conventions pertaining to the 
Constitutions styled on the Westminster model will also 
F 
stand breached. if while enacting
legislation. pertaining to 
transfer of judicial power. conventions and salient 
characteristics of the court sought to be replaced are not 
incorporated in the court/tribunal sought to be created. 
138.(v) The prayer made in Writ Petition (C) No. 621 of G 
2007 is declined. Company Secretaries are held ineligible 
for repr~senting a party to an appeal before NTT. 
139.(vi) Examined on the touchstone of Conclusions (iii) 
and (iv) (contained in paras 136 and 137. above) Sections 
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290 
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(2015] 13 S.C.R. 
A 
5, 6, 7, 8 and 13 of th§ NTI Act (to the §21!ent irn;!icated 
ber§ioa!;!QY:e), are h§ld IQ b§ ungonstitutiQOSJI, Sing§ the 
aforesaid 12rgvisions constityte the edifice gf the NTT Act, 
and without tbese grovisions the remaining grovisions are 
rendered in§ffective and incooseguential, the entire 
B 
enS]ctment is declared unconstitution;;il." 
Based on the above, it was asserted, that this Court had 
now clearly laid down, that on issues pertaining to the transfer 
of judicial power, the salient characteristics, standards and 
c conventions of judicial power, could not be breached. It was 
also submitted, that evaluated by the aforesaid standards, it 
would clearly emerge, that the "independence of the judiciary" 
had been seriously compromised, through the impugned 
constitutional amendment (and the NJACAct). 
D 
23. It was the submission of Mr. Ram Jethmalani, learned 
Senior Advocate, that the defect in the judgment rendered by 
this Court in the First Judges case, was that, Article 50 of the 
Constitution had not been appropriately highlighted, for 
consideration. It was submitted, that importance of Article 50 
E read with Articles 12 and 36, came to be examined in the 
Second Judges case, wherein the majority view, was as 
follows: 
"80. From th§ above d§liberation, it is clear that Article 50 
F 
was referred to in varioys decisions b)( the eminent Judges 
of this Court while discussing the Qrincigle of indegengence
Qf the judiciarv. We may cite Article 36 which falls under 
Part IV (Directive Principles of State Policy) and which 
reads thus: 
G 
"36. In this Part, unless the context otherwise requires, 
'the State' has the same meaning as in Part Ill." 
81. According to this article, the definition of the expression 
"the State" in Article 12 shall apply throughout Part IV, 
wherever that word is used. Therefore, it follows that the 
' 
H 
expression "the State" used in Article 50 has to be construed
SUPREME COURT ADVOCATES-ON-RECORD 
291 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
.. 
in the distributive sense as including the Government and A 
Parliament of ln.dia and the Government and the legislature 
of each State and all local or other authorities within the 
territory of India or under the control of the Government of 
India. When the concept of separation of the judiciarv from 
the executive is assayed and assessed that concept cannot B 
be confined only to the subordinate judigiarv..._totally 
discarding the higher judiciary. If such a narrow and 
pedantic or syllogistic approach is made and a constricted 
construction is given it would lead to an anomalous · 
position that the Constitution does not emphasise the C 
separation of higher judiciary from the executive. Indeed, 
the distinguished Judges of this Court as pointed out 
/-
earlier. in various decisions have referred to Article 50 while 
discussing the concept of independence of higher or D 
superior judiciary and thereby highlighted and laid stress 
. on the basic principle and values underlying Article 50 in 
safeguarding the independence of the judiciary. 
xxx 
xxx 
xxx 
85. Regrettably, there are some intractable problems 
E 
concerned with judicial administration starting from the 
initial stage of selection of candidates to man the Supreme 
Court and the High Courts leading to the present malaise. 
Therefore, it has become inevitable that effective steps 
. have to be taken to improve or
retrieve the situation. After 
F 
taking note of these problems and realising the devastating 
consequences that may flow, one cannot be a silent 
spectator or an old inveterate optimist, looking upon the 
other constitutional funetionaries, particularly the executive, 
in the fond hope of getting invigorative solutions to make G 
the justice delivery system more effective and resilient to 
meet the contemporary needs of the society, which hopes, 
as experience shows, have never been successful. 
Therefore, faced with such a piquant situation, it has 
become imperative for us to solve these problems within 
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292 
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[2015] 13 S.C.R. 
A 
the constitutiona.1 fabric by interpreting the various provisions 
of the Constitution relating to the functioning of the judiciary 
in the light of the letter and spirit of the Constitution. 
B 
c 
D 
E 
F 
)()()( 
)()()( 
)()()( 
141. Mr Ram Jethmalani, learned senior counsel expressed 
his grievance that the principles laid down in Chandra Mohan 
case (1967) 1 SCR 77, 83 ... were not appreciated by the 
learned Judges while dealing with Samsher Singh v. State 
of Punjab, (1974) 2 SCC 831 who in his submission, have 
ignored the principle of harmonious construction which was 
articulated in K.M. Nanavati v. State of Bombay (1961) 1 
SCR 497 ... According to him, the judgment in Gupta case 
1981 Supp SCC 87 may be regarded as per incuriam. He 
articulates that the expression 'consultation' is itself flexible 
and in a certain context capable of bearing the meaning of 
'consent' or 'concurrence'. 
xxx 
xxx 
)()()( 
154. The controversy that arises for scrutiny from the 
arguments addressed boils down with regard to the 
ccnstruction of the word 'consultation'. 
)()()( 
xxx 
xxx 
170. Thus, it is seen that the consensus of opinion is that · 
consultation with the CJI is a mandatory condition 
precedent to the order of transfer made by the President 
so that non-consultation with the CJI shall render th'? order 
unconstitutional i.e. void. 
171. The above view of the mandatorv character of the 
requirement of consultation taken
in Sankalchand has been 
followed and reiterated by some of the Judges jn Gupta 
G 
case. Fazal Ali. J. has held in Gupta case: (SCC p. 483, 
para 569) 
H 
"(3) If the consultation with the CJI has not been done before 
transferring 
a 
Judge, 
the transfer becomes 
unconstitutional."
SUPREME COURT ADVOCATES-ON-RECORD 
293 . 
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
Venkataramiah, J. in Gupta case has also expressed the 
A 
same view. 
172. In the light of the above view expressed in Union of 
India v. Sankalchand Himatlal Sheth. (1977) SCC 4 193 ... 
and some of the Judges in Gupta case 1981 Supp SCC 
87 ... it can be simply held that consultation with the CJI 
B 
under the first proviso to Article 124(2) as well as under 
Article 217 is a mandatory condition, the violation of which 
would be contrary to the constitutional mandate. 
xxx 
xxx 
xxx 
181. It cannot be gainsaid that the CJI being the head of C 
the Indian Judiciary and paterfamilias of the judicial fraternity 
has to keep a vigilant watch in protecting the integrity and 
guarding the independence of the judiciary and he in that 
capacity evaluates the merit of the candidate with regard 
D 
to his/her professional attainments, legal ability etc. and . 
offers his opinion. Therefore, there cannot be any 
justification in scanning that opinion of the CJI by applying 
a superimposition test under the guise of overguarding the 
. judiciary. 
xxx 
xxx 
xxx 
183. One should not lose sight of the important fact that 
appointment to the judicial office cannot be equated with 
E 
the appointment to the executive or other services. In a 
recent judgment in All India Judges' Association v. Union of 
F 
India (1993) 4 SCC 288 ... rendered by a three-Judge Bench 
presided over by M.N.
Venkatachaliah, C.J. and consisting 
of A.M. Ahmadi and P.B. Sawant, JJ., the following 
observations are made: (SCC pp. 295 e-h, 296 a and c-d,. 
297 b, paras 7 and 9) 
G 
"The judicial service is not service in the sense of 
'employment'. Thejudges are not employees. As members 
of the judiciary, they exercise the sovereign judicial power 
of the State. They are holders of public offices in the same 
way as the members of the Council of Ministers and the 
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[2015] 13 S.C.R. 
A 
members of the legislature. When it is said that in a 
democracy such as ours. the executive. the legislature and 
the judiciarv constitute the three pillars of the State. what 
is intended to be conveyed is that the three essential 
B 
c 
D 
E 
functions of the State are entrusted to the three organs of 
the State and each one of them in turn represents the 
authority of the State. However. those who exercise the 
State power are the ministers. the legislators and the 
judges. and not the members of the their staff who 
implement or assist in implementing their decisions. The 
Council of Ministers or the political executive is different 
from the secretarial staff or the administrative executive 
which carries out the decisions of the political executive. 
Similarly, the legislators are different from the legislative 
staff .. So also the judges from the judicial staff. The parity 
is between the political executive, the leciislators and the 
judges and hot between the jutlges and the adminiStraiive 
executive. In some democracies like the USA, members 
. of some State judiciaries are elected as much as the 
members of the legislature and th~ heads of the State. The 
judges, at whatever level they may be, represent the State 
and its authority unlike the administrative executive or the 
members of other services. The members of the other 
services, therefore, cannot be placed on a par with the 
F 
members of the judiciary,
either constitutionally or 
functionally." 
Whereupon, this Court recorded its conclusions. The 
relevant conclusions are extracted hereunder: 
"(1) The 'consultation' with the CJI by the President is 
G 
relatable to the judiciary and not to any other service. 
(2) In the process of various constitutional appointments, 
'consultation' is required only to the judicial office in contrast 
to the other high-ranking constitutional offices. The prior 
'consultation' envisaged in the first proviso to Article 124(2) 
H 
and Article 217(1l in respect of judicial offices is a
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
reservation or limitation on the power of the President to 
A 
appoint the Judges to the superior courts. 
xxx 
xxx 
xxx 
(4) The context in which the expression "shall always be 
consulted" used in the first proviso of Article 124(2) and 
the expression '.'shall be appointed ... after consultation" 
B 
deployed in Article 217(1) denote the mandatory character 
of 'consultation'. which has to be and is of c;i binding 
character. 
(5) Artieles 124 and 217 do not speak in specific terms 
requiring the President to consult the executive as such, C 
but the executive comes into play in the process of 
appointment of Judges to the higher echelons of judicial 
service by the operation of Articles 7 4 and 163 of the 
Constitution. In other words in the case of appointment of 
Judges. the Presiden't is not obliged to consult the executive 
D · 
as there is no specific provision for such cohsultafion. 
(6) The President is constitutionally obliged to consult the 
CJI alone in the case of appointment of a Judge to the 
Supreme Court as per the mandatory proviso to Article 
E 
124(2) and in the case of appointment of a Judge to the 
High Court. the President is obliged to consult the CJI and 
the Governor of the State and in addition the Chief Justice 
of the High Court concerned. in ·case the appointment 
relates to a Judge other than the Chief Justice of that High 
F 
Court. Therefore to place
the opinion of the CJI on a par 
with the other constitutional functionaries is not in 
consonance with the spirit of the Constitution but against 
the very nature of the subject-matter concerning the 
judiciary and in opposition to the context in which 
G 
'consultation' is required. After the observation of Bhagwati 
J. in Gupta case that the 'consultation' must be full and 
effective the.re is no conceivable reason to hold that such 
'consulta·tion' need not be given primary consideration. 
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296 
SUPREME COURT REPORTS 
[2015] 13 S.C.R. 
A 
xxx 
xxx 
xxx 
196. In the background of the above factual and legal 
position, the meaning of the word 'consultation' cannot be 
confined to its ordinary lexical definition. Its contents greatly 
vary according to the circumstances and context in which 
B 
the word is used as in our Constitution. 
c 
D 
E 
)()()( 
)()()( 
)()()( 
207. 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 for 
turbulent controversies, some of which with a flavour 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 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. By going through various 
Law Commission Reports (particularly Fourteenth, 
Eightieth and One Hundred and Twenty-first). Reports of 
the Seminars and articles of eminent jurists etc., we 
understand that a radical change in the method of 
appointment of Judges to the superior judiciary by curbing 
F 
the executive's power has been accentuated but the 
desired result has not been achieved even though by now 
nearly 46 years since the
attainment of independence and 
more than 42 years since the advent of the formation of 
our constitutional system have elapsed. However, it is a 
G 
proud privilege that the celebrated birth of our judicial 
system, its independence, mode of dispensation of justice 
by Judges of eminence holding nationalistic views stronger 
than other Judges in any other nation"s, and the resultant 
triumph of the Indian judiciary are highly commendable. 
H 
But it does not mean that the present system should
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
continue for ever. and by allowing the executive to enjoy A 
the absolute primacy in the matter of appointment of 
Judges as its 'royal privilege'. 
208. The polemics of the learned Attorney-General and Mr 
Parasaran for sustaining the view expressed in Gupta case 
1981 Supp SCC 87 ... though so distinguished for the 
B 
strength of their ratiocination, is found to be not acceptable 
and falls through for all the reasons aforementioned -
because of the inherent weakness of the doctrine which 
they have attempted to defend.". 
c 
Insofar as the minority judgment authored by A.M. 
Ahmadi, J., (as he then was) is concerned, it is only relevant to 
highlight the first conclusion recorded in paragraph 313, which 
is reproduced hereunder: 
"313. We conclude: 
(1) The concept of judicial independence is deeply ingrained 
in our constitutional scheme and Article 50 illuminates it. 
The degree of independence is near total after a person is 
appointed and inducted in the judicial family ...... " 
D 
24. Insofar as the instant aspect of the matter is 
E 
concerned,· 1earned counsel invited our attention to the 
preamble of the NJAC Act, which is reproduced below: 
"An Act to regulate the procedure to be followed by the 
National Judicial Appointments Commission for 
F 
recommending persons for appointment as the Chief 
Justice of India and other Judges of the Supreme Court 
and Chief Justices and
other Judges of High Courts and 
for their transfers and for matters connected therewith or 
incidental thereto." 
The statement of objects and reasons. is also being 
extracted hereunder: 
"Statement of Objects and Reasons 
xxx 
xxx . 
xxx 
G 
2. The Supreme Court in the matter of the Supreme Court 
H
298 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2015) 13 S.C.R. 
Advocates-on-Record Association Vs. Union of India in the 
year 1993, and in its Advisory Opinion in the year 1998 iri 
the Third Judges case, had interpreted clause (2) of article 
124 and clause ( 1 ) of article 217 of the Constitution with 
respect to the meaning of "consultation" as "concurrence". 
Consequently, a Memorandum of Procedure for 
appointment of Judges to the Supreme Court and High 
Courts was formulated, and is being followed for 
appointment. 
3. After review of the relevant constitutional provisions. the 
pronouncements of the Supreme Court and consultations 
with eminent Jurists, it is felt that a broad based National 
Judicial Appointments Comm·1ssion should be established 
for making recommendations for appointment of Judges 
of the Supreme Court and High Courts. The said 
Commission would provide a meaningful role to the · 
judiciarv the executive and eminent persons to present 
their view points and make the participants accountable, 
while also introducing transparency in the selection 
process. 
4. The Constitution (One Hundred and Twenty-first 
Amendment) Bill, 2014 is an enabling constitutional 
amendment for amending relevant provisions of the 
Constitution and for setting up a National Judicial 
Appointments Commission. The proposed Bill seeks to 
insert new articles 124A, 1248 and 124C after article 124 
of the Constitution. The said Bill also provides for the 
composition and the
functions of the proposed National 
Judicial Appointments Commission. Further, it provides that 
G 
Parliament may, by law, regulate the procedure for 
appointment of Judges and empower the National Judicial 
Appointments Commission to lay down procedure by 
regulation for the discharge of its functions, manner of 
selection of persons for appointment and such other 
H 
matters as may be considered necessary.
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ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 
5. The proposed Bill seeks to broad base the method of A 
appointment of Judges in the Supreme Court and High 
Courts. enables participation of judiciary. executive and 
eminent persons and ensures greater transparency, 
accountability and objectivity in the appointment of the 
Judges in the Supreme Court and High Courts. 
B 
6. The Bill seeks to achieve the above objectives. 
New Delhi; 
Ravi Shankar Prasad 
The 8th August, 2014." 
Based on the non-disclosure of reasons, why the existing C 
procedure was perceived as unsuitable, it was contended, that 
the only object sought to be achieved was, to dilute the primacy, 
earlier vested with the Chief Justice of India (based on a 
decision of a collegium of Judges), provided for under Articles 
124 and 217, as originally enacted. This had been done away, D 
it was pointed out, by substituting the Chief Justice of India, 
with the NJAC. 
· 25. The primary submission advanced at the hands of 
Mr. Fali S. Nariman, Senior Advocate, was with reference to 
the violation of the "basic structure", not only through the 
E 
Constitution (99th Amendment) Act, but also, by enacting the 
NJAC Act. It was pointed out, that since the commencement 
of the Constitution, whenever changes were recommended in 
respect of the appointment of Judges, the issue which 
remained the focus of attention was, the primacy of the Chief F 
Justice of India. Primacy, it
was contended, had been 
recognized as the decisive voice of the judiciary, based on a 
collective decision of a collegium of Judges, representing its 
collegiate wisdom. It was submitted, that the Chief Justice of G 
India, as an individual, as well as, Chief Justices of High 
Courts, as individuals, could not be considered as persona 
designate. It was pointed out, that the judgment rendered in 
the Second Judges case, had not become irreievant. This 
Court, in the above judgment, provided for the preservation of H