ASSOCIATION & Anr. v. UNION OF INDIA

Judgment

): It is open to the Parliament, while exercising C its power under Article 368, to provide for some other alternative procedure for the selection and appointment of Judges to the higher judiciary, so long as, the attributes of "separation of powers" and "independence of the judiciary", which are "core" components of the "basic structure" of the D Constitution, are maintained. Constitution of India -Amendment to - Scope - Held (per Khehar, J.): The "basic structure" of the Constitution is inviolable ~ The Constitution cannot be amended so as to negate any "basic features" thereof-Also, if a challenge is E raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. Constitution of India - Art. 368 - Constitutional Amendments - Will of the People and Judicial Review - Limitations on the amending power - Appointment and F transfer of Judges in higher judiciary- Broad based Judicial Appointment Commission comprising of members of the judiciary, the executive and eminent! important persons from public life 'proposed to be constituted, to replace the prevailing G procedure, contemplated under Articles 124(2) and 217(1)- To achieve the purported objective, Articles 124 and 217 inter a/ia amended, and Articles 124A, 1248 and 124C inserted in the Constitution, through the Constitution (99th Amendment) Act, by following the procedure contemplated H 4 SUPREME COURT REPORTS [2015] 13 S.C.R. A under Article 368(2), more particularly, the proviso thereunder - Simultaneously therewith, the Parliament enacted the NJACAct- Said Constitutional amendment and legislative enactment, challenged before Supreme Court - Held (per Khehar, J.): There are declared limitations, on the amending B . power conferred on the Parliament, which cannot be breached If a constitutional amendment breaches the "core" of the - Constitution or destroys its "basic or essential features" in a manner which was patently unconstitutional, it would have crossed over forbidden territory - This aspect, would C undoubtedly fall within the realm of judicial review - In the above view of the matter, the impugned constitutional amendment, as a/so, the NJAC Act, would be subject to judicial review on the touchstone of the "basic structure" of the Constitution, and the parameters laid down by the Supreme Court in that behalf, even though the impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority, and notwithstanding the ratification thereof by as many as twenty- E eight State Assemblies - Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments· Commission Act, 2014 . 0 . Judiciary- Higher Judiciary- Constitutional Courts - F Appointment and transfer of Judges - Independence of judiciary - Primacy conferred on the Chief Justice of India and his col/egium of Judges - Held (per Khehar, J.): In the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles G 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted) - Therefore, when a question with reference to the selection and appointment (as also, transfer) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 5 of Judges to the higher judiciary is raised, alleging that the A "independence of the judiciary" as a "basic feature/structure" o~ the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached- Then B alone, would it be possible to conclude, whether or not, the "independence of the judiciary" as an essential "basic feature" of the Constitution, had been preserved (-and had not been breached}- Constitution of India -Articles 124, 21 land 222. c Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Procedure - New scheme contemplated for replacing the Col/egium system - National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) D Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC to comprise of members of the judiciary, the executive and eminent/important persons from public life - Whether as a matter of practicality, the impugned constitutional amendment can be consi.dered to E have sustained, primacy in the matter of decision making, under the amended provisions of Articles 124, 217 and 222, in conjunction with the inserted provisions of Articles 124A to 124C, with the judiciary- Held (per Khehar, J.): Primacy of the judiciary would not be considered to have been sustained, F merely by ensuring that the judicial component in the membership of the NJAC, was sufficiently capable, to reject the candidature of an unworthy nominee - In the matter of primacy, the judicial component of the·NJAC, should be competent by itself, to ensure the appointment of a worthy· G nominee, as well - Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court (next to the Chief Justice of India), consider a nominee to be worthy for appointment to the higher H 6 SUPREME COURT REPORTS [2015] 13 S.C.R. A C judiciary, the concerned individual may still not be appointed, if any two Members of the NJAC. opine otherwise- This would be out-rightly obnoxious, to the primacy of the judicial component- The magnitude of the instant issue, is apparent from the fact that the two "eminent persons" ("lay persons, B according to the Attorney General), could defeat the unanimous recommendation made by the Chief Justice of India and the two senior most Judges of the Supreme Court, favouring the appointment of an individual under consideration - Without any doubt, demeaning primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary - The instant issue, is demonstrably far more retrograde, when the Union Minister in charge of Law and Justice also supports the unanimous view of the judicial component, because still the dissenting voice of the "eminent persons" would prevail - It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile - Articles 124A(1)(a) and (b) do not provide for an adequate representation in the matter, to the judicial component, to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the "basic structure" of the Constitution of lndia- F Thus viewed, the "basic structure" of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC - The impugned constitutional amendment, being ultra vires the "basic E' 0 G structure" of the Constitution, is liable to be set aside - Constitution of India -Arts. 124A (1 )(a) and (b). Judiciary - Higher Judiciary - Constitutional Courts - Appointment of Judges - Procedure - New scheme contemplated - National Judicial Appointments Commission H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 7 (NJAC) set up - NJAC to comprise of members of the A judiciary, the executive and eminenVimportant persons from public life - Participation of the political-executive - If justified - Presence of Union Minister in charge of Law and Justice, as an ex officio Member of the NJA C - Challenge to - Held (per Khehar, J.): The political-executive, as far as possible, B should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary - Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication - Reciprocity, and feelings of pay back to the political- C executive, would be disastrous to "independence of the judiciary" - Since the executive has a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable - Consequent upon the participation of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support, may not be able to resist or repulse a plea of conflict E of interest, raised by a litigant, in a matter when the executive has an adversarial role- In the NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary - resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the /is - The above, would have the inevitable effect of undermining the "independence of the judiciary", even where such a plea is repulsed - Therefore, the rote· assigned to the G political-executive, can at best be limited to a collaborative participation, excluding any role in the final determination - Mere participation of the Union Minister in charge of Law and Justice, in the final process of selection, as an ex officio It may be difficult for Judges approved by the NJAC, to F 0 H 8 SUPREME COURT REPORTS [2015] 13 S.C.R. B C A Member of the NJA C, would render the amended provision of Article 124A(1 )(c) as ultra vires the Constitution, as it impinges on the principles of "independence of the judiciary" and "separation of powers" - In the process of evolution of societies across the globe, the trend is to free the judiciary from executive and political control, and to incorporate a system of selection and appointment of Judges, based purely on merit- For it is only then, that the process of judicial review will effectively support nation building - Progression of the concepts of "independence of the judiciary" and 'Judicial review" were now being recognized the world over - The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an In recognition of the above trend, there obvious reality - cannot be any greater and further participation of the D executive, than that which existed hitherto before -And in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and Third Judges cases - It is therefore imperative to conclude, that the participation E of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none - Leader of the single largest Opposition Party in the House F of the People), in the selection of"eminent persons", would be a retrograde step, and cannot be accepted - Constitution of India -Art. 124A(1)(c). Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges - Procedure - G Composition and structure of NJAC- NJAC to comprise of members of the judiciary, the executive and two "eminent persons""- Issue arising out of non-description of qualifications and disqualifications of "eminent persons" - Two "eminent persons" to be nominated to the NJA C vested H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 9 with a power of veto - Propriety of- Held (per Khehar, J.): A The issue of description of the qualifications (-perhaps, also the disqualifications) of "eminent persons" is of utmost importance, and cannot be left to the free will and choice of the nominating authorities, irrespective of the high constitutional positions held by them- Specially so, because B the two "eminent persons" comprise of 1/3rd strength of the NJA C, and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC-Article 124A(1 )(d) is liable to be set aside and struck down, for having not laid C down the qualifications of eligibility for being nominated as "eminent persons", and for having left the same vague and undefined - It is even otherwise difficult to appreciate the logic of including two "eminent persons': in the six-Member NJAC - It is difficult to appreciate what inputs the "eminent persons", satisfying the qualification depicted by the Attorney General, would render in the matter of selection and appointment of Judges to the higher judiciary- The sensitivity of selecting Judges is so enormous, and the consequences E of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may we/I lead the nation into a chaos of sorts - It is also difficult to appreciate the wisdom of the Parliament, to F introduce two Jay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto- The second proviso under s.5(2), and s.6(6) of the NJAC Act, clearly mandate, that a person nominated to be considered for G appointment as a Judge of the Supreme Court, and persons being considered for appointment as Chief Justices and Judges of High Courts, cannot be appointed, if any two Members of the NJA C do not agree to the proposal - In the 0 H 10 SUPREME COURT REPORTS [2015] 13 S.C.R B A scheme of the selection process of Judges to the higher judiciary, contemplated under the impugned constitutional amendment read with the NJAC Act, the two "eminent persons" are sufficiently empowered to reject all recommendations, just by themselves - Not just that, the two "eminent persons" would also have the absolute authority to reject all names unanimously approved by the remaining four Members of the NJAC - That would obviously include the power to reject, the unanimous recommendation of the entire judicial component of the NJA C - The vesting of such C authority in the "eminent persons", is clearly unsustainable, in the scheme of ."independence of the judiciary" -Article 124A(1 )(d) is liable to be set aside and struck down as being violative of the "basic structure" of the Constitution - D Constitution of India-Art. 124A(1 )(d)- Constitution (Ninety ninth Amendment) Act, 2014 - National Judicial . Appointments Commission Act, 2014 - Second proviso u/s. 5(2) ands. 6(6). Judiciary - Higher judiciary - Constitutional Courts - E Appointment and transfer of Judges - Participation of the political-executive establishment- Role of the "civil society" in India - Held (per Khehar, J.): The Constitution does not . envisage the "spoils system" (also known as the "patronage system'?, wherein the political party which wins an election, F gives Government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power- It would be of utmost importance to shield judicial appointments, from any political executive interference, to preseNe the "independence of the judiciary", from the regime of the spoils system - PreseNing primacy in the judiciary, in the matter of selection and appointment of Judges to the, higher judiciary would be a safe way to do so - It is difficult to hold that the wisdom of appointment of Judges, can be shared with the political- G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 11 executive- In India, the organic development of civil society, · A has not as yet sufficiently evolved - The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance- The present status ofthfj evolution of the "civil B society" in India, does not augur the participation of the political-executive establishment, in the selec;tion and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another - Higher judiciary, ·which is the savior of the C fundamental rights of the citizens of this country, by virtue of the constitutional responsibility assigned to it under Articles 32 and 226, must continue to act as the protector of the civil society- Constitution of India-Arts. 32 and 226. D National Judicial Appointments Commission Act, 2014 - Functioning of the NJAC- Quorum for- Meeting of National Judicial Appointments Commission (NJAC), when valid - Strength required for valid decision making - Held (per . Khehar, J): In case a statutory provision vests a decision E making authority in a body of persons witho_ut stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision making- On the same analogy therefore, a valid decision by such a body will necessitate a decision F by a simple majority of all the members of the body - If the . aforesaid principles are made applicable to the NJAC, the natural outcome would be, that a valid meeting of the NJA C must have at least four Members participating in a six Member NJAC - Likewise, a valid decision of the NJAC can G only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of ·the NJAC (three Members on either side, would not make up the simple majority) - Judiciary - Higher Judiciary - H 12 SUPREME COURT REPORTS [2015] 13 S.C.R. A Constitutional Courts -Appointment and transfer of Judges - Procedure. B National Judicial Appointments Commission Act, 2014 - ss. 5(2) and 6(6) - Validity- Judiciary- Higher Judiciary Constitutional Courts -Appointment and transfer of Judges - Power of veto vest~d in any two Members of the NJA C - . Held (per Khehar, J.): The power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciqry, in the matter of selection and appointment of C Judges to the higherjudiciary (as also theirtransfer)-ss.5(2) and 6(6) breach the "basic structure" of the Constitution, with reference to the "independence of the judiciary" and the "separation of powers" - ss. 5(2) and 6(6), therefore, liable to be declared as ultra vires the Constitution. o National Judicial Appointments Commission Act, 2014 - s. 5(1) - Appointment of the Chief Justice of India - Procedure - s.5(1) provided that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief.Justice of India, subject to the E condition, that he was considered "fit" to hold the office - F Contention that the term "fit" had not been elaborately described and it was always open to the Parliament to purposefully define fitness, in a manner as would sub-serve the will of the executive and this could/would seriously affect the "independence of the judiciary" - Held (per Khehar, J.): It was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India, in uncertain and ambiguous terms - It was imperative to express, the clear G parameters of the term "fit", with reference to the senior most Judge of the Supreme Court under s.5 - The term "fit" can be tailor-made, to choose a candidate far below in the seniority list- The position adopted by the Attorney General, H namely, that the term "fit" used in s.5(1) would be read to SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 13 mean only " ... mental and physical fitness ... " is affirmed A and crystalised - If that is done, it would be legal and constitutional - However, if the position adopted ~reached the "independence of the judiciary'; in the manner suggested by the petitioners, the same would be assailable in Jaw. National Judicial Appointments Commission Act, 2014 8 0 - s. 5(2), first proviso - Validity of -Appointment of a High Court Judge - First proviso to s.5(2) providing that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge C shall be considered by NJAC - Held (per Khehar, J.):Undoubtedly, postulating "seniority" in the first proviso under s.5(2), is a laudable objective -And if seniority is to be supplemented and enmeshed with "ability and merit'; the most ideal approach, can be seen to have been adopted - But what appears on paper, may sometimes not be correct in practice - Experience shows, that Judges to every High Court are appointed in batches, each batch may have just two or three appointees, or may sometimes have even ten or more individuals-A group of Judges appointed to one High E Court, will be separated from the lot of Judges appointed to another High Court, by just a few days, or by just a few weeks, and sometimes by just a few months- In the all India seniority of Judges, the complete batch appointed on the same day, to one High Court, will be placed in a running serial order (in F seniority) above the other Judges appointed to another High Court, just after a few days or weeks or months - Judges appointed later, will have to be placed en masse below the earlier batch, in seniority- If appointment of Judges to the Supreme Court, is to be made on the basis of seniority (as a G primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court-And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved H 14 A SUPREME COURT REPORTS [2015] 13 S.C.R. themselves able and meritorious as High Court Judges, they will have to be appointed one after the other, when vacancies of Judges arise in the Supreme Court - In that view of the matter, Judges from the same High Court would be appointed to the Supreme Court, till the entire batch is exhausted - B Judges from the same High Court, in the above situation where the batch comprised often Judges, will occupy a third of the total Judge positions in the Supreme Court- That would be clearly unacceptable - Consideration of Judges on the basis of their seniority, by treating the same as a primary C consideration, would adversely affect the present convention of ensuring represeritation from as many State High Courts, as is possible - The convention in vogue is, to maintain regional representation -Accordingly, the first proviso under s. 5(2) is liable to be struck down and set aside. 0 National Judicial Appointments Commission Act, 2014 - s.6(1) - Validity of-Appointment of a Judge of a High Court as Chief Justice of a High Court- s. 6(1) providing that NJAC shall recommend on the basis of inter se seniority of E High Court Judges and ability, merit and any other criteria of suitability as may be specified- Held (per Khehar, J.): s. 6(1) . has the same seniority connotation as expressed with reference to the first proviso under s.5(2) - For exactly the same reasons as noticed in the case of the first proviso under F s.5(2), based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court- s. 6(1) therefore liable to meet the same fate, as the first proviso under s.5(2); and is liable to be struck down and set aside. G National Judicial Appointments Commission Act, 2014 - s. 7 - Validity of- Appointment of Chief Justice of India or a Judge of the Supreme Court or, the Chief Justice of a High Court or the Judge of a High Court - s. 7 providing that the H President would make such appointments on SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 15 · recommendations made by NJAC - The first proviso to s. 7 A providing that the President may require NJA C to reconsider recommendation made by it- Held (per Khehar, J.): It is not possible to accept that s. 7 by providing that the President could requite the NJAC to reconsider a recommendation made by it, would in any manner violate Articles 124(2) and B 217(1) (which mandate, that Judges would be appointed by the President on the recommendation of the NJAC)- It would .be improper to infer, that the action of the President, requiring the NJAC to reconsider its proposal, amounted to rejecting the proposal made by the NJAC - For, if the NJAC was to C reiterate the proposal made earlier, the President even in terms of Section 7, was bound to act in consonance therewith (as is apparent from the second proviso under s. 7 of the NJACAct). D National Judicial Appointments Commission Act, 2014 - s. 8- Validity of- Functions of the Convener, with reference io NJA C - s. 8 provides for the Secretary to the Government of India, in the Department of Justice, to be the convener of NJA C- It was contended that such an onerous responsibility, E · could not be left to the executive alone.it was imperative to exclude all executive participation in the proceedings of the NJAC-Held (per Khehar, J.): It has already been concluded, that the participation of the Union Minister in charge of L?W · and Justice, as a Member of the NJAC, as contemplated F under Article 124A(1 ), in the matter of appointment of Judges to the higher judiciary, would breach the concepts of "separation of powers" and the "independence of the judiciary", which are both undisputedly components of the "basic structure" of the Constitution of/ndia - For exa<?tlY the G same reasons, s. 8 is not sustainable in law - In a body like the NJAC, the administrative functioning cannot be under executive or legislative control - The only remaining alternative, is to vest the administrative control of such a body, H 16 SUPREME COURT REPORTS [2015] 13 S.C.R. A with the judiciary. Constitution of India - Amendment to, set aside by a process of judicial review - Consequence - Impugned Constitution (99th Amendment) Act set aside by five-Judge Bench of Supreme Court, as being violative of the "basic 8 structure" of the Constitution- Effect of- Would Articles 124, 127, 128, 217, 222, 224, 224A and 231, as they existed prior to the impugned amendment, would revive; and on such revival, the judgments rendered in the Second and Third C Judges cases, would again regulate selections and appointments, as also, transfer of Judges of the higher judiciary- Held (per Khehar, J.): The present situation is one where, the impugned constitutional amendment by a process of judicial review, has been set aside - Such being the 0 position, whatever be the cause and effect of the impugned constitutional amendment, the same will be deemed to be set aside, and the position preceding the amendment will be restored - It does not matter what are the stages or steps of the cause and effect of the amendment, all the stages and E steps will stand negated, in the same fashion as they were introduced by the amendment, when the amended provisions are set aside - If neither the impugned constitutional provision, nor the amended provisions of the Constitution would survive, it would lead to a breakdown of the constitutional F machinery, inasmuch as, there would be a lacuna or a hiatus, insofar as the manner of selection and appointment of Judges to the higher judiciary is concerned - Such a position cannot be the result of any sound process of interpretation - The clear intent of the Parliament, while enacting the Constitution (99th Amendment) Act, was to provide for a new process of selection and appointment of Judges to the higher judiciary by amending the existing provisions - Naturally therefore, when the amended provision postulating a different procedure is set aside, the original process of selection and G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATIONv. U.0.1. . 17 c appointment under the unamended provisions would revive A -When a judgment sets aside, an amendment or a repeal by the legislature, it is but natural that the status quo ante, would stand restored - With the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would B automatically revive, and the status quo ante would stand restored - Constitution (Ninety-ninth Amendment) Act, 2014 - Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges. Constitution of India - Art. 124A - Validity of - Constitution and composition of National Judicial Appointments Commission (NJAC) - Held (per Khehar, J.): Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014- The striking down of Article 124A D would automatically lead to the undoing of the amendments made to Articles 124, 1248, 124C, 127, 128, 217, 222, 224, 224A and 231 - This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld - If the inclusion of anyone of the Members of the NJAC is held to E be unconstitutional, Article 124A will be rendered nugatory, in its entirety- Clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in F the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another) - The same are accordingly, violative of the principle of"independence of the judiciary" - Clause (c) of Article 124A(1) is ultra vires the G provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC- Clause (c) of Article 124A(1) impinges upon the principles of "independence of the H 18 SUPREME COURT REPORTS [2015] 13 S.C.R. A B - judiciary", as well as, "separation of powers'' -Also, clause (d) of Article 124A(1) which provides for the inclusion of two "eminent persons" as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons - The same is violative of the "basic structure" of the Constitution In the above view of the matter, all the clauses (a) to {d) of Article 124A(1) are liable to be set aside - The same are, accordingly struck down - In view of the striking down of Article 124A(1 ), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside - The same is accordingly hereby C struck down in its entirety, as being ultra vi res the provisions of the Constitution - Constitution (99th Amendment) Act, 2014 - Judiciary- Higher Judiciary- Constitutional Courts -Appointment and transfer of Judges'- Procedure. D Constitution oflndia-Art. 124C- Validity of- Held (per Khehar, J.): The National Judicial Appointments Commission Act, 2014 inter alia emanates from Art. 124C - It has no independent existence in the absence of the NJAC, constituted under Art. 124A(1 )- Since Arts. 124A and 124C E have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside, and the same is accordingly hereby struck In view of the above, it was not essential to have down - examined the constitutional vires of individual provisions of the NJACAct-Allthe same, the challenge raised to Sections 5, 6, 7 and 8 thereof have been examined - ss. 5, 6 and 8 of the NJAC Act found to be ultra vires the provisions of the Constitution - National Judicial Appointments Commission Act, 2014 - ss.5, 6 and 8- Judiciary- Higher Judiciary- G Constitutional Courts -Appointment and transfer of Judges F - Procedure . Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Constitutional History in regard to Appointment of Judges in India - Discussed - H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 19 Held (per Lokur, J.): The conclusions that can be drawn from A the background histo1ical facts are as follows: (1) The independence of the judiciary has been always recognized and acknowledged by all concerned - (2) Prior to Independence, the appointment of a judge to a superior court was entirely the discretion of the Crown - The Constituent B Assembly felt that such a 'supreme and absolute' power should not vest in the President or the government of the day or the Chief Justice of India (as an individual) and therefore a fetter was placed on that power by requiring the President to mandatorily consult the Chief Justice of India (with the C discretion to consult other judges) for the appointment of a judge to the Supreme Court- For the appointment of a judge of the High Court also, consultation with the Chief Justice of India was mandatory-In addition, consultation with the Chief Justice of the High Court and the Governor of the State was mandatory-Significantly, there is no mention of consultation with anybody from civil society - (3) Any doubt about the individual role of the President in the process of appointment of judges came to rest and it was clear that the President was E expected to act only on the advice of the Council of Ministers - (4) Similarly, the Chief Justice of India is not expected to act in an individual or personal capacity but must consult his/her senior judges before making a recommendation for the appointment of a judge - Constituent Assembly did not accept the 'unfettered discretion' theory in the Constituent Assembly Debates (CAD) but this view was subsequently rejected in the First Judges case which brought in the 'ultimate power' theory propounded by Justice Bhagwati and Justice Desai - the appointment process (with perhaps an informal method of 'take over? had started around the time of Independence and got aggravated post Independence, peaking towards the end of the 1980s - (7) Not a single instance given where the (5) Dr. Ambedkar and the F (6) Executive interference in G 0 H 20 SUPREME COURT REPORTS [2015) 13 S.C.R. B Memorandum of Procedure - A President recommended a person for appointment as a judge of the Supreme Court or the High Court- The Chief Minister of a State might have made a recommendation (although no instance was given) but that was required to be routed through the Chief Justice of the High Court, as per the (8) Only one instance was given, pre the First Judges case where an appointment as a judge of the High Court was made without the concurrence of the Chief Justice of India - Post the First Judges case as many as seven such appointments were made - This is a C clear indication that the 'ultimate power' theory propounded in the First Judges case translated into 'absolute executive primacy' - The dream of Dr. Ambedkar became a nightmare, (9) The 'ultimate power' thanks to the political executive - theory or the 'absolute executive primacy' theory is now diluted and the last word in the appointment of a judge of the Supreme Court is shared between the President and the Chief Justice of India in terms of the Second Judges case and the Third Judges case - Historically, giving the last word to the E executive has been criticized by no less than the Attorney General Shri M. C. Setalvad who chaired the Law Commission of India when the 141 h Report was given - That system has not worked well at all as noted from time to time - (10) The National Commission to Review the Working of the Constitution as well as a responsible judge from the House of Lords were of the opinion that the procedure for appointment of judges as laid down in the Second Judges case and the Third Judges case broadly serves the purpose of maintaining the independence of the judiciary and G providing a suitable method for appointment of judges of the F 0 superior Courts. Judiciary- Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges- Procedure- 'Absolute executive primacy' system or the 'ultimate power' theory and H . SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 21 the 'col/egium system' of appointment of fudges postulated A by the Second Judges case and the Third Judges case - Discussed- Held (per Lokur, J.): Both the 'absolute executive primacy' system or the 'ultimate power' theory and the 'col/egium system' of appointment of judges of the Supreme Court and the High Courts were acceptable systems in their B time - The 'executive primacy' system was, unfortunately, abused by the executive and the judiciary could do precious little about it, bound as the judges are by the Rule of Law- It is because of this abuse that the constitutional provisions were revisited at the instance of the Bar of Supreme Court- C It is this insight that resulted in the Second Judges case and a meaningful and pragmatic interpretation of the Constitution - To say that the col/egium system has failed and that it needs replacement would not be a correct or a fair post mortem. Judiciary - Higher Judiciary- Constitutional Courts - D 'Consultation' E Appointment and transfer of Judges - Procedure - Process of consideration - Col/egium system - Two stages - Pre recommendation stage and post-recommendation stage - Impact and effect of Second Judges case - occurring in Article 124(2) and Article 217(1) of the Constitution - Meaning of- Held (per Lokur, J.): The process of consideration of a person for appointment as a judge is important both at a stage prior to the recommendation being made by the Chief Justice of India in consultation with his/ F her colleagues, constituting a 'col/egium' and also after the recommendation is sent by the Chief Justice of India to the executive -At both stages, the process is participatory- In the pre-recommendation stage, it is a participatory process involving the Chief Justice of India and his/her colleagues, G constituting the collegiums - It is at this stage that the Chief Justice of India takes the opinion of the other judges and anybody else, if deemed necessary - This stage a/so includes the participation of the executive because it is at H 22 SUPREME COURT REPORTS [2015) 13 S.C.R. A C 0 this stage that the Chief Justice of India receives inputs from the executive about the frailties, if any, of a person who may eventually be appointed a judge - In the post recommendation stage also the process is participatory but primarily with the executive in the event the executive has B some objection to the appointment of a particular person for strong and cogent reasons to be recorded in writing - Therefore, when a person is considered tor appointment as a judge, there is extensive and intensive participatory consultation within the judiciary before the Chief Justice of India actually recommends a person for appointment as a judge; and after the recommendation is made, there is consultation between the executive and the judiciary before the process is carried further - Difficulty in considering and accepting a recommendation arises only if there is a difference of opinion during consultations between the executive and the judiciary - The Second Judges case effectively resolves this controversy - At the pre recommendation stage, it is quite possible that the executive is in possession of material regarding some personal trait or weakness of cha racier of a lawyer or a judge that is not known to the Chief Justice of India or the Chief Justice of the High Court and which may potentially disentitle that person from being appointed a judge - It is then for the executive, as a F consultant, to bring this information or material to the notice of the Chief Justice of India - Since the judiciary has the responsibility of recommending an appropriate candidate for appointment as a judge, primacy is accorded to the view of the judiciary (symbolized by the view of the Chief Justice of India) that will weigh and objectively consider the material or information and take a final decision on the desirability of the appointment- The Chief Justice of India may, for good reason, accept the view of the executive or may, also for good It is in this reason, not accept the view of the executive - E G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 23 sense that 'consultation' occurring in Article 124(2) and Article A 217(1) of the Constitution has to be understood- Constitution oflndia-Articles 124(2) and 217(1). Judiciary - Higher judiciary - Constitutional Courts - B Appointment of Judges - 991 h Constitution Amendment Act inter alia amended Article 124(2) and introduced Article 124A - Article 124(2) of the Constitution required the NJAC constituted. under Article 124A to make recommendation to the President for the appointment of a judge of the Supreme Court or a High Court- NJAC and the role of the President- C piscussed - Held (per Lokur, J.): There is no·clarity on the role of the President - In any event, the discretion available to the President to consult judges of the Supreme Court in the matter of appointment of judges is taken away - The decision of the President is subject to the opinion of two D eminent persons neither of whom is constitutionally accountable - There is a doubt on the well established principle of Cabinet responsibility-A statute- the NJA C Act, not the Constitution binds the President contrary to the constitutional framework- The ggrh Constitution Amendment E Act makes serious and unconstitutional inroads into Article 124(2) of the Constitution, as originally framed - Constitution (Ninety-ninth Amendment) Act, 2014. Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges - Role of the Chief Justice of India F and the Judiciary- In context to ggth Constitution Amendment Act and the NJAC Act- Discussed - Held (per Lokur, J.): The unanimous opinion of the Judiciary can be rejected by two eminent persons or one eminent person and the Law Minister (whose opinion is subject to the opinion of the G Council of Ministers, whom he/she represents) - The unanimous opinion of the judiciary as an institution, an opinion that was respected (and deservedly so) counts for virtually nothing with the passage of the ggrh Constitution H 24 SUPREME COURT REPORTS [2015] 13S.C.R. A Amendment Act and the NJAC Act- The Chief Justice of India is rendered, by the ggih Con.stitution Amendment Act to a mere voting statistic and one among six in the NJAC virtually stripping him/her of the constitutional responsibility of appointing judges to the superior courts and denuding him/ B her of the authority conferred by history, constitutional convention and the Constitution- The Chief Justice of India and the institution of the judiciary is now subject to a veto by civil society in its decisions - The entire scheme of appointment of judges postulated by the Constituent C Assembly is _made topsy-turvy by the ggrh Constitution Amendment Act and the NJAC Act - Constitution (Ninety-· ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. D Judiciary - Higher judiciary - Constitutional Courts - E Appointment of Judges - Presence of eminent persons in NJAC- Challenged- Held (per Lokur, J.): In principle, there can be no objection to consultation with eminent persons from all walks of life in the matter of appointment of judges - But that these eminent persons can veto a decision that is taken unanimously or otherwise by the Chief Justice of India (in consultation with other judges and possibly other eminent persons) is unthinkable - it confers virtually a monarchical power on the eminent persons in the NJA C, a power without F any accountability- The categories of eminent persons ought not to be limited to scheduled castes, scheduled tribes, other backward classes, minorities or women but that is a matter of policy and nothing more can be said about this, except that ·a rethink is necessary - There can be no guidelines for G deciding who is or is not an eminent person for the purposes of nomination to the NJAC, but that the choice is left to a high powered committee is a sufficient check, provided the decision of the committee is unanimous. Judiciary - Higher judiciary - Constitutional Courts - H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 25 Appointment of Judges - Presence of the Law Minister in A NJAC- Challenge to, on ground that the Union of India is the biggest litigant in the courts and to have the Law Minister as a member of the NJAC might prove detrim~ntal to a fair selection, if not counter-productive- Held (per Lokur, J.): The struggle for the independence of the judiciary has always B been pivoted around the exclusion of the executive in decision-taking, but the inclusion of the Law Minister in the NJAC is counter-productive, historically counter-majoritarian and goes against the grain of various views expressed in various committees - More so, since the Law Minister can C exercise a veto in the decision-taking body - Presence of the Law Minister in the NJAC is totally unnecessary and ii/ advised - Presence of the Law Minister in the NJA C casts a doubt on the principle of Cabinet responsibility. Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges - Article 124(2) of the Constitution as originally framed made it mandatory for the President to consult the Chief Justice of India in the appointment of judges - NJAC and impact on mandatory consultation - Held (per E Lokur, J.): The ggth Constitution Amendment Act and the NJAC Act have reduced the consultation process to a farce - a meaningful participatory consultative process no longer exists- The shared responsibility between the President and the Chief Justice of India in the appointment of judges is F passed on to a body well beyond the contemplation of the Constituent Assembly- The possibility of having committed judges and the consequences of having a committed judiciary, a judiciary that might not be independent is unimaginable. G Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges- NJAC and the appointment of High Court judges - Held (per Lokur, J.): The combined effect of the ggth Constitution Amendment Act and Section 6 of the H D 26 SUPREME COURT REPORTS [2015] 13 S.C.R. A NJAC Act is that the entire control over the appointment of a judge of a High Court is taken over by the NJAC and the paradigm is completely altered with the Chief Justice of a High Court downgraded from a mandatory consultant, and the originator of a recommendation for appointment as B postulated by Article 217(1) of the Constitution as conventionally understood, to someone who merely makes a nomination and thereafter is not required to be consulted one way or the other with respect to the nomination made - Process of initiating a recommendation for the appointment C of a judge, generally accepted since Independence, has been radically changed, with well entrenched constitutional conventions being given short shrift - The Chief Justice of the High Court has been reduced to the role of a nominating officer, whose opinion is taken only for nomination purposes but not taken as a consultant in so vital a matter as the appointment of a judgf! - The constitutional importance given to the Chief Justice of a High Court has been completely whittled down virtually to a vanishing point- Constitution of India -Art. 217(1) - Constitution (Ninety-Ninth} Amendment Act, 2014 - National Judicial Appointments Commission Act, 2014-s.6 . . E 0 Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges - Convenor of the NJAC - The F Secretary to the Government of India in the Department of Justice is the convenor of the NJAC in terms of Section 8(3) ·of the NJAC Act - Held (per Lokur, J.):. The duties and responsibilities of the convenor have not been delineated in the NJAC Act and, the rules and regulations under the Act G have not been framed - It is therefore difficult to appreciate the functions that the convenor is expected to perform- That apart, the Secretary is an officer of the· government and is not answerable to the NJA C - The Secretary is paid a salary and allowances from the government coffers - This is quite H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATfON v. U.0.1. 27 unlike officers of the High Courts or the Supreme Court who A are directly answerable to their respective Chief Justice - Moreover, their salary and allowances are charged upon the Consolidated Fund of India - The 'independence' of these officers is maintained while that of the Secretary to the Government of India in the Department of Justice is not - Moreover, the Secretary holds a transferable position and can be changed at the whims and fancies of the executive, depriving the NJAC of continuity and, in a sense, leaving it high and dry whenever it pleases the executive ~ This is clearly objectionable - National Judicial Appointments C Commission Act, 2014 - s. 8(3). B Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges - Confidentiality requirements - · Functioning of the NJAC-Held (per Lokur, J.): The balance D between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far reaching impact on his/her reputation and dignity - The ggth Constitution Amendment Act and the NJAC Act have not taken note of the privacy E concerns of an individual - This is important because it was submitted by the Attorney-Genera/ that the proceedings of the NJAC wi/I be completely transparent and any one can have access to information that is available with the NJA C - This is a rather sweeping generalization which obviously does F not take into account the privacy of a person who has been recommended for appointment, particularly as a judge of the High Court or in the first instance as a judge of the Supreme Court - The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with G the implicit fundamental right to privacy that all people enjoy - The balance between the two implied fundamental rights is difficult to maintain, but the ggth Constitution Amendment Act and the NJAC Act do not even attempt to consider, Jet H 28 SUPREME COURT REPORTS [2015) 13 S.C.R. A alone achieve that balance - Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. Judiciary - Higher judiciary - Constitutional Courts - 8 h Constitution Amendment Act Appointment of Judges - 991 declared as altering the basic structure of the Constitution - Effect of- Held (per Lokur, J.): The constitutional provisions amended by the 991 h Constitution Amendment Act spring back to life on the declaration that the ggrh Constitution C Amendment Act is unconstitutional - Constitution (Ninety Ninth) Amendment Act, 2014. Constitution (Ninety-ninth Amendment) Act, 2014 - Validity of- Held (per Lokur, J.): It alters the basic structure of the Constitution by introducing substantive changes in the D appointment of judges to the Supreme Court and the High Courts and rewriting Art.124(2) and Art.217(1) of the Constitution, thereby seriously compromising the independence of the judiciary - Consequently, the ggrh Constitution Amendment Act is unconstitutional - The E 99th Constitution Amendment Act has completely changed the constitutional position and changed the role of the President in the appointment process as a/so substantially modified the mandatory consultation with the Chief Justice of India and substituted or replaced the entire process by a recommendation of the NJAC - The 99th Constitution Amendment Act and the NJAC Act raise a series of unanswered questions- It is true that the Constitution cannot specify and incorporate each and every detail, particularly procedural details - But the same time, the substantive G requirements of the NJAC scheme must be apparent from the 99th Constitution Amendment Act read with the NJAC Act, particularly when it seeks to overthrow an existing method of appointment of judges that maintains the independence H of the judiciary- Vital issues cannot be left to be sorted out F SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 29 at a later date through supplementary legislation or A supplementary subordinate legislation, otherwise an unwholesome hiatus would be created, making matters worse - Constitution oflndia'-Arts. 124(2) and 217(1). National Judicial Appointments Commission Act, 2014 - Validity of - Held (per Lokur, J.): Since the 99th Constitution B Amendment Act is unconstitutional, the National Judicial Appointments Commission Act, 2014 which is the child of the 99th Constitution Amendment Act cannot independently survive on the statute books - Even otherwise, it violates C Article 14 of the Constitution by enabling substantive arbitrariness in the appointment of judges to the Supreme Court and the High Courts - Judiciary - Higher judiciary - Constitutional Courts -Appointment and transfer of Judges - Constitution of India -Art. 14. D Judiciary - Higher judiciary - Constitutional Courts - Appointment of Judges - Independence of the judiciary and the appointment process - Held (per Lokur, J.): The independence of the judiciary begins with the appointment of a judge - There is no doubt that the appointment of a judge E to the Supreme Court or the High Court is an integral part of the independence of the judiciary- However, it is not possible to agree with the Attorney-General when he says that though the appointment of a judge is a part of the independence of the judiciary, it is but a small part and certainly not a F predominant part - It is really the foundational part of the independence of the judiciary- The process for appointment and the actual appointment of a judge to a High Court or the Supreme Court is a predominant part of the independence of the judiciary and, therefore, an integral part of the basic G structure of the Constitution. Constitution of India - Amendment to - Grounds of challenge - Difference from grounds for challenging a Parliamentary statue - Held (per Lokur, J.): An amendment H 30 A B SUPREME COURT REPORTS [2015] 13 S.C.R. to the Constitution can be challenged only if it alters the basic structure of the Constitution - Whereas a law can be challenged if: (1) It is beyond the competence of the Legislature; (2) It violates Article 13 of the Constitution; (3) It is enacted contrary to a prohibition in the Constitution; and (4) It is enacted without following the procedure laid down in the Constitution - Doctrines I Principles - Basic structure doctrine. Judiciary - Higher judiciary - Constitutional Courts - C Appointment of Judges - Factors to be considered - Held (per Lokur, J.): There are two crucial factors- (1) Professional . skills, judicial potential, suitability and temperament of a person to be a good judge, and (2) personal strengths, weaknesses, habits and traits of that person -As far as the 0 professional skills, judicial potential, suitability and temperament of a person being a good judge is concerned, the most appropriate person to make that assessment would be the Chief Justice of India (in consultation with the other judges) and not somebody from outside the legal fraternity- E On the other hand, as far as the personal strengths, weaknesses, habits and traits of a person are concerned, appropriate inputs can come only from the executive, since the Chief Justice of India and other judges may not be aware of them - Chief Justice of India is the 'expert' with regard to F potential while the executive is the 'expert' with regard to the antecedents and personal traits - Since these two facets of the personality of a would-be judge are undoubtedly distinct, there cannot be a difference of opinion between the judiciary and the executive in this regard since they both express an G opinion on different facets of a person's life - The Chief Justice of India cannot comment upon the 'expert opinion' of the executive nor can the executive comment upon the 'expert opinion' of the Chief Justice of India. Judiciary - Higher judiciary - Constitutional Courts - H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 31 Appointment of Judges - Constitution (Ninety-ninth A Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014 - Validity of - Held (per Lokur, J.): The Second Judges case acknowledged that the President has the discretion to turn down a recommendation made by the Chief Justice of India, but only under certain B circumstances - This was the fetter on the discretion of the President - However, the ggrh Constitution Amendment Act and the NJAC Act have completely taken away the discretion of the President to turn down a recommendation for the appointment of a judge, reducing the constitutional C significance of the President - The ggrh Constitution Amendment Act and the NJAC Act have taken away this freedom of consultation from the President, who has no option but to take into account only the recommendation of the NJAC and not travel beyond that - Once again, the constitutional significance and importance of the President is considerably reduced, if not taken away- The 99'h Constitution Amendment Act and the NJACAct have considerablylimited and curtailed the authority of the Chief Justice of India (both individually E as well as institutionally) and the Chief Justice of India is now precluded from taking the opinion of other judges or of any person outside the NJAC - The Chief Justice of India has been reduced to an individual figure from an institutional head - The ggrh Constitution Amendment Act and the NJAC Act F reversed the process well thought out in the Second Judges case and the Third Judges case and have taken away the constitutional authority of the Chief Justice of India and placed it on a platter for the NJA C to exploit- Given our constitutional history, the established conventions, the views of various G committees over the last seventy years and the views of scores of legal luminaries beginning with Mr. Motilal Setalvad, the throes through which the judiciary has gone through over several decades and the provisions of our Constitution, 0 H 32 SUPREME COURT REPORTS [2015] 13 S.C.R. B structure of the Constitution - A Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic It is accordingly declared unconstitutional - The other provisions of the Constitution (Ninety-ninth Amendment) Act, 2014 cannot stand by themselves and are therefore also declared unconstitutional - Similarly, the National Judicial Appointments Commission C Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute and it violates Article 14 of the Constitution and is declared unconstitutional - Even otherwise, the National Judicial Appointments Commission Act, 2014 cannot stand alone in the absence of the Constitution (Ninety-ninth Amendment) Act, 2014 - The result of this declaration is that the 'co/legium system' postulated by the Second Judges case and the Third Judges case gets revived - However, the procedure for appointment E of judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning- There is a need to have a 'consequence hearing' to assist in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judgf!S, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a Fifth Judges case - Constitution (Ninety-ninth Amendment) Act, 2014- National Judicial Appointments Commission Act, 2014. F 0 G Constitution (Ninety-ninth Amendment) Act, 2014 - Validity of - Appointment and transfer of Judges in Constitutional Courts - Scheme and structure - Discussed - Held (per Kurian, J.): During the first phase of the working of the Constitution, the Executive claimed an upper hand in H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 33 the appointment and the Chief Justice of India or the Chief A Justices of the High Courts concerned were only to be 'consulted', the expression often understood in its literaf sense - The decision was taken by the Executive with the participation of the Chief Justice - This process fell for scrutiny in the decision of Supreme Court in Samsher Singh case B wherein a seven-Judge Bench, inter alia held that "independence of the Judiciary" is a cardinal principle of the Constitution which "is guarded by the relevant article making consultation with the Chief Justice of India obligatory" and that "in all conceivable cases consultation with that highest C dignitary of Indian justice will and should be accepted by the Government of India''- The Bench dealing with the First Judges Case, which had a coram only of seven, however, held otherwise, though with a majority of four against three - D The nine-Judges Bench in the Second Judges Case overruled the First Judges Case, holding that appointment of Judges to the High Courts and the Supreme Court forms an integral part of the independence of judiciary, that independence of judiciary is part of the basic structure of the E Constitution of India, and therefore, the Executive cannot interfere with the primacy of the judiciary in the matter of appointments - Third Judges Case, in 1998, is only an explanatory extension of the working of the principles in the Second Judges Case by institutionalizing the procedure of F appointment, introducing the Collegium- Thus, the structural supremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and Third Judges Cases - This Bench is bound by the ratio that independence of judiciary is part of the basic structure of Constitution and that G the appointment of Judges to the High Courts and the Supreme Court is an integral part of the concept of independence of judiciary-And for that simple reason, the Constitution 99rh Amendment is declared unconstitutional - H 34 SUPREME COURT REPORTS [2015] 13 S.C.R. A Judiciary- Higher Judiciary- Constitutional Courts. National Judicial Appointments Commission Act, 2014 - ,Validity of- Held (per Kurian, J.): Since it is being held by the majority that the amendment itself i.e. Constitution 99th amendment is bad, there is no point in dealing with the validity 8 of the creature of the amendment, viz., the National Judicial Appointments Commission Act, 2014- It does not exist under law- Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges. c E Constitutional Law - Interpretation of Constitution - Typology of constitutional arguments- "Historical': "textual", "structural", "prudential", "doctrinal" and "ethical" - Effect of Constitution 991 h amendment - Held (per Kurian, J.): In interpreting the Constitution, all the tools are to be o appropriately used, and quite often, in combination too - In the present case, the Constitution 99th amendment has introduced a new constitutional scheme for appointment of Judges to the High Courts and the Supreme Court - The three constitutional wings, their powers and functions under the Constitution, and their intra relationship being the key issues to be analysed in the present case, the 'structural tool' is to be prominently applied for resolving the issues- Validity of the Constitution 99th amendment is to be tested on the touchstone of the theory of the basic structure - Separation F of powers is the tectonic structure of the Constitution of India - Under the constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch - The permissible areas of interference are the checks and balances- But there G are certain exclusive areas for each branch which can be described as powers central~ There shall be no interference on powers central of each branch -Any attempt by diluting the basic structure to create a committed judiciary, however H remote be the possibility, is to be nipped in the bud - The SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 35 Parliament has no power to gerrymander the Constitution - The Constitution ggth amendment impairs the structural distribution of powers, and hence, it is impermissible - ·Constitution (Ninety-ninth Amendment) Act, 2014. . A Judiciary - Higher judiciary - Constitutional Courts - Appointment and transfer of Judges - New scheme 8 envisaged in terms of the Constitution (Ninety-ninth Amendment) Act, 2014 for replacing the Collegium system - Whether even if the said Constitutional amendment is struck down, the Collegium does not resurrect - Held (per C Kurian, J.): The argument does not appeal even to common sense - The 991 h Amendment sought to 'substitute' a few provisions in the Constitution and 'insert' a few new provisions - Once the process of substitution and insertion by way of a constitutional amendment is itself held to be bad and D impermissible, the pre-amended provisions automatically resurface and revive - Constitution (Ninety-ninth Amendment) Act, 2014. E Judiciary - Higher judiciary - Constitutional Courts - Appointment and transfer of Judges - Collegium system - Need for improvement therein - Held (per Kurian, J.): The present Collegium system lacks transparency, accountability and objectivity- The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society - Quite often, very serious a/legations and many a F time not unfounded too, have been raised that its approach has been highly subjective - The allegations certainly call for a deep introspection - It is a curable situation yet - No doubt, the fault is not wholly of the Collegium - The Second and Third Judges Case had provided effective tools in the G /)ands of the Executive to prevent aberrations - Executive seldom effectively used those tools - Therefore, the Co/legium system needs to be improved requiring a 'glasnost' and a 'perestroika', and hence the case needs to H 36 SUPREME COURT REPORTS [2015] 13 S.C.R. A be heard further in this regard. Constitution of India - Art.368 - Amendment of Constitution - Limitation on Power of the Parliament to amend the Constitution - Test of basic"Structure - Held (per Goel, J.): Article 368 of the Constitution provides for power to 8 amend the Constitution and procedure therefor - A constitutional amendment has to pass the test of basic structure - Whether or not the basic structure was violated has to be finally determined by the Supreme Court from case tocase. C ·Constitution of India - Basic structure I feature - What is- Held (per Goel, J.): Whether a feature of the Constitution is basic feature or part of basic structure is to be determined having regard to its place in the scheme of the Constitution o and consequence of its denial on the working of the Constitution. Judiciary- Judiciary and democracy- Held (per Goel, It is the faith of the people in the impartiality and J.): competence of judiciary which sustains democracy - The judiciary is entrusted the power to control the power of the Executive and the Legislature whenever it is alleged that the said organs have exceeded their constitutionally assigned authority- This is the essence of the democracy. Judiciary- Higher Judiciary- Constitutional Courts - E F Appointment and transfer of Judges- Scheme and structure - Whether primacy of Judiciary in Appointment of Judges is part of basic structure:; Held (per Goel, J.): The decisions of the Supreme Court expressly lay down that independence G of judiciary and judicial review are part of basic structure - Broad separation of powers between the three departments of the State is a part of doctrine of checks and balances- It is also a part of democracy - Independence of judiciary is integral to the entire scheme of the Constitution without which H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 37 neither primacy of the Constitution nor Federal character, A Social Democracy nor rights of equality and liberty can be effective - The earlier decisions in Second and Third Judges' case have to be taken as binding precedents - Once it is so, it has to be held that primacy of the judiciary in appointment of judges is part of the basic structure - Appointment of B judges is part of independence of judiciary- It is the faith of the people in the impartiality and competence of judiciary which sustains democracy- If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the Executive, it will certainly affect impartiality of judges C and their functioning - The acknowledged scheme of the Constitution and its working is not to allow domination of the Executive in appointment of Judges - Even by amendment primacy of judiciary in appointment of judges cannot be D excluded - Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged - Similarly, the plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of E Parliament to amend the basic feature of the Constitution - The change of time does not justify greater role for the Executive in appointment of judges - Independence of judiciary is key element in the entire functioning of the Constitution and such independence is integrally linked with F the appointment of judges free from Executive interference - Any perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature - Primacy of judiciary and limited G role of the Executive in appointment of judges is part of the basic structure of the Constitution - The primacy of judiciary is in initiating a proposal and finalising the same - The CJ/ has the last word in the matter- The Executive is at liberty to H 38 SUPREME COURT REPORTS [2015] 13 S.C.R. A give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in Second and Third Judges' cases. Judiciary - Higher Judiciary - Constitutional Courts - 8 Appointment and transfer of Judges - Amendment in scheme and structure - National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National C Judicial Appointments Commission Act, 2014 - NJAC to comprise the Chief Justice of India, Chairperson, ex officio; two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; the Union Minister in charge of Law and Justice as Member, ex officio; and two D eminent persons, to be nominated by a Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People - Whether under the impugned amendment the basic feature of primacy of judiciary in appointment of judges has been E altered or damaged - Held (per Goel, J.): Under the un amended scheme of appointment of judges, which is a basic feature of the Constitution, the President is to make appointment, after consultation with the CJ/ representing the judiciary- Dfsregarding the views of the CJ/ is permissible in exceptional situations for recorded reasons having bearing on character and antecedents of a candidate and if such reasons are found to be acceptable to the CJ/ - Under the amended scheme, no such final view can be taken by the CJ/ - Without giving any reason, the Minister or the G nominated members can reject the unanimous view of the judges - Chief Justice of the High Court is not a member of the Commission and has no Constitutional role in appointment/transfer of the judges of the High Courts- Mere fact that without the judges, the Minister and the nominated F H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 39 members cannot make an appointment is not at par with the A situation where a decision itself is taken by the CJ/ representing the judiciary- Even if in appointing two eminent members CJ/ is a/so a member of the Committee, the fact remains that the PM and the Leader of the Opposition have significant role in appointing such members, who will have B power not only equal to the CJ/ and two senior most judges of the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts but also right to reject the unanimous proposal of the CJ/ and the two senior most judges - Such C composition of the Commission cannot be held to be conducive to the independence of judiciary - Appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts, can certainly be influenced to a D great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary - The amendment does away with the primacy of even unanimous opinion of the judicial members as such opinion is not enough to finalise an appointment-The primacy of judiciary E as always understood in binding judicial precedents comprises of initiation of name and taking a final call- These two core features constitute identity of the primacy of judiciary - This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such F proposal can be effectively rejected - The impact thereof being that the appointment of judges could be made under the influence of the Executive represented by the Law Minister or the non-judge members in whose appointment the pre dominant voice is not of the judiciary - The impact of such G appointments will be that the judges appointed will owe their appointments to the Executive which may be destructive of the public confidence and impartiality of judiciary a.nd adversely affect the role of the judiciary as an important H 40 SUPREME COURT REPORTS [2015] 13 S.C.R. A 0 impartial constitutional organ - Constitutionally conferred judicial primacy in appointment of judges cannot be whittled down or sought to be controlled by those who are not given or allowed to take over such functions - Even granting the best of intentions, the Parliament could not act beyond the B authority conferred on it by the Constitution - Thus, taking away primacy of judiciary or conferring such primacy on a body which is not at par with the said concept is certainly not a choice available with the Parliament- The Constitution of India has its own background and personality - Models of C other countries could not be blindly followed so as to damage the identity and personality of the Indian Constitution - The Judicial Commissions referred to by the Attorney General do not show the trend of reducing the pre-existing role of judiciary- In fact, the trend is for reducing the pre-existing role of the Executive - In the impugned amendment it is the reverse - Thus, the contention of working of other Constitutions or setting up of judicial Commissions with varying compositions in other countries does not justify the impugned amendment which is contrary to the basic structure of the Indian Constitution - There is no merit in the contention that in the present case mere alteration in a constitutional provision does not amount to damage of a basic feature - It is not a case of simple amendment to iron out creases - Its impact clearly affects the independence of judiciary - Pre dominant role of the Executive is not permissible - The new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary - Under the new scheme such primacy has been G given a go-bye- Thus the impugned amendment cannot be sustained - Constitution (Ninety-ninth Amendment) Act, 2014. E F Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Amendment in H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 41 scheme and structure - National Judicial Appointments A Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014- NJAC apart· from Judges comprising of Law Minister and two eminent persons to be nominated by a specified Committee- One of B the eminent person was to be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women - Such reservation for one of the nominated members challenged- Held (per Goel, J.): The views of the Constitution C makers and eminent expert committees clearly show that role of the Executive in appointment of judges has to be minimum and by and large limited to check the character and antecedents of the candidates and not to finally assess the D merit and suitability of such candidates - In this view of the matter, even ifthe contention that no guideline was required for criteria for appointment of eminent persons when the Committee will be comprised of high dignitaries is accepted the fact remains that such persons will play not merely E supporting but pre-dominant role in appointing Supreme Court and High Court judges which will not be congenial to the independence of judiciary - There is no justification for reservation for one of the nominated members being from · specified categories- Such provision is against the scheme F of the Constitution and contrary to the object of selecting judges purely by merit - The nature of appointment does not justify any affirmative action for advancement of any socially and educationally backward classes or for the Scheduled Castes or Scheduled Tribes or women - The G appointment of judges has to be on evaluation of merits and suitability of the candidates - Religion, caste or sex of the evaluator has no relevance. Judiciary - Higher Judiciary - Constitutional Courts - H 42 SUPREME COURT REPORTS [2015] 13 S.C.R. · A Appointment and transfer of Judges - Evaluation and suitability of a candidate for appointment as judge of the Supreme Court or High Courts - Held (per Goel, J.): The · appointment of a judge of the Supreme Court is normally made out of Chief Justices of High Courts or senior judges B or eminent lawyers or eminent jurists whose merit is better known to senior judges- Their evaluation has to be impartial and free from any political or other considerations- Persons making selection are required to be best placed to assess their merit and suitability - Pre-dominant and decisive role C of the judiciary is a requirement not only of independence of judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the Democracy- The citizens having a grievance of violation of their fundamental and legal rights against the Executive or the Legislature expect that their grievance is considered by persons whose appointments are not influenced by the Executive or the Legislature- If an appointment is perceived as being influenced by political consideration or any other E extraneous influence, faith in impartiality, which is hall mark of independence of judiciary, will be eroded - The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution. 0 Constitutional Law - Amendment of Constitution - 'Identity test' and the 'impact test' - Held (per Goel, J.): The word amendment literally means betterment or improvement and sponsor of amendment may always claim improvement - Such claim has to be tested by applying the 'identity test' and the 'impact test' - The amendment should not affect the identity of an essential feature of the Constitution - The impact of the amendment on the working of the scheme of the Constitution has to be taken into account- This brings to some extent subjective element which is unavoidable even while testing any legislation which is alleged to be violative F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 43 of fundamental rights and justified on the concept of A 'reasonable restrictions' - In this regard, effect of Executive interference which has been documented by expert studies cannot be held to be irrelevant or ignored on the ground that this is a subject of wisdom of Parliament- It is not merely the text of the amendment but also its impact and potential which B has to be kept in mind on 'identity' of the original scheme and the 'width' of the power under the new scheme- The new scheme may iron out the creases but the mechanism should be comparable to the substituted scheme - Words and Phrases - "amendment" - Meaning of. C Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Procedure - New scheme and structure - Six-member National Judicial Appointments Commission (NJAC) set up - NJAC apart D from Judges comprising of Union Law Minister and two eminent persons to be nominated by a specified Committee If - Presence of Law Minister and two eminent persons - proper- Held (per Goel, J.): Under the new scheme, the Law Minister has been given role equal to the CJ/ - Right from E the commencement of the Constitution, this role of the Law Minister was never envisaged while initiating the process and finalizing it - Law Minister, in participatory scheme, could at best. suggest a name or give his comments on the names proposed but the proposal could and was always initiated by F the CJ/ - At the stage of initiation, if equal authority is conferred, this will erode the primacy of judiciary- Other two persons to be nominated by a Committee which also has predominant political voice to be placed at par with the CJ/ in initiating and finalizing a proposal destroys the original G scheme beyond its identity-Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect independence of judiciary but equal participation by the Law Minister and two outsiders in final H 44 SUPREME COURT REPORTS [2015] 138.C.R. A decision for initiation or appointment can be detrimental to the independence of judiciary- It cannot be wished away by presuming that the Law Minister and the two distributors will not be influenced by any extraneous consideration - Such a presumption will be contrary to the acknowledged factual B experience - It will also be against the concept of separation of judiciary from the Executive- More over this will be contrary to the basic intention of the Constitution makers. 0 E National Judicial Appointments Commission Act, 2014 C - ss.2, 3, 5(2), Second proviso to s.5(2), 5(3), 6(1), 6(2), 6(3), 6(6), 6(8), 8 & 13- Validity of the NJACAct-Held (per Goel, J.): In view of the conclusion about the Constitution (Ninety ninth Amendment) Act being beyond the competence of the Parliament, it is not necessary to discuss the validity of the NJAC Act as the said Act cannot survive once the amendment is struck down - However, consistent with the view that primacy of judiciary in appointment of judges cannot be compromised, and on that ground not only s.2 of the Amendment dispensing with the mandatory consultation with the judiciary as contemplated under the unamended provisions, s.3 conferring power on the NJAC (under Article 1248) and providing for composition of the Commission under Article 124A giving a role to the Law Minister and two eminent persons equal to the CJ/ in recommending F appointments as CJ/, Judges of Supreme Court, Chief Justices and other Judges of the High Courts and recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article 124C giving power to the Parliament to regulate the procedure and to lay G down the manner of selection was also unconstitutional, the impugned Act has to bf) struck down - It goes far beyond the procedural aspects- In s.5(2) 'suitability criteria' is left to be worked out by regulations - Second proviso to s.5(2) and H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 45 s. 6(6) give veto to two members of the Commission which is A not contemplated by the Amendment - s.5(3) and s.6(8) provide for conditions for selection to be laid down by regulations which are not mere procedural matters - s. 6 authorises the recommendations for appointment as judges of the High Courts without the proposal being first initiated B by the Chief Justice of the High Court- s.6(1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges - This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only C one High Court may be senior most - s. 6(2) provides for seeking nomination from Chief Justices of High Courts, but s.6(3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court D and seek comments from Chief Justice after short listing the candidates by itself- s.8 enables the Central Government to appoint officers and employees of the Commission and to lay down their conditions of service - The Secretary of tf1e Government is the Convenor of the Commission - s. 13 E requires all regulations to be approved by the Parliament - These provisions in the Act impinge upon the independence of judiciary - Even if the doctrine of basic structure is not applied in judging the validity of a parliamentary statute, independence of judiciary and rule of law are parts of Articles F 14, 19 and 21 of the ConsUtuUon and absence of independence of judiciary affects the said Fundamental · Rights - The NJAC Act is thus liable to be struck down - Constitution of India -Arts. 124A, 1248 and 124C. Judiciary- Higher Judiciary - Constitutional Courts - G Appointment and transfer of Judges - Procedure - Amendment in - Effect of Amendment being struck down - Held (per Goel, J.): The contention that even (f Amendment is held to be void, the pre-existing system cannot be restored H 46 SUPREME COURT REPORTS [2015] 13 S.C.R. A has no logic - In exercise of power of judicial review, a provision can be declared void in which case the legal position as it stands without such void provision can be held to prevail - It is not a situation when position has not been made clear while deciding an issue- On amendment being struck down, the pre-existing system stands revived- Constitution (Ninety ninth Amendment) Act, 2014. B Judiciary- Higher Judiciary- Constitutional Courts - 0 Appointment and transfer of Judges - Procedure - Review C of Working of the Existing System- Held (per Goel, J.): Since the system existing prior to amendment will stand revived on the amendment being struck down and grievances have been expressed about its functioning, such grievances ought to be considered - Such grievances ought to be gone into for which the matter needs to be listed for hearing - The impugned Constitution Amendment and the NJAC Act are struck down as unconstitutional - Pre-existing scheme of appointment of judges stands revived- The matter be listed for consideration of the surviving issue of grievances as to E working of pre-existing system - Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. Judiciary - Higher judiciary - Constitutional Courts - Appointment and transfer of Judges - Scheme of the F Constitution - History and debates in the Constituent · Assembly- Consultation with the Chief Justice of India - Interpretation of - Role of the Parliament - Held (per Chelameswar, J.) (Minority opinion): The legislative history clearly indicates that the members of the Constituent G Assembly clearly refused to vest an absolute and unfettered power to appoint Judges of the constitutional courts in any one of the 3 branches of the Constitution - Constituent Assembly declined to assign any role to the Parliament - It H declined to vest an unbridled power in the executive -At the SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 47 same time did not agree with the proposal that the CJl's A concurrence is required for any appointment - Word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute B discretion under the Government of India Acts - The Court never held that consultation means concurrence as is sought to be interpreted in some quarters and even in the stated objects and reasons for the Amendment. Constitution of India -Amendment to- Effect of- Held C (per Chelameswar, J.) (Minority opinion): Amendment of one or some of the Articles constituting a basic feature may or may not result in the destruction of the basic structure of the Constitution - It all depends on the context-Amendment of D a single article may result in the destruction of the basic structure of the Constitution depending upon the nature of the basic feature and the context of the abrogation of that article if the purpose sought to be achieved by the Article constitutes the quintessential to the basic structure of the E Constitution. Judiciary - Higher judiciary - Constitutional Courts - Appointment and transfer of Judges - Held (per Chelameswar, J.) (Minority opinion): Any appointment process established under the Constitution must necessarily F be conducive for establishment of not only an independent judiciary but also ensure its efficiency- the two qualities essential for preservation of liberty. Judiciary - Higher judiciary - Constitutional Courts - G Appointment of Judges - Whether primacy to the opinion of the judiciary in the matter of judicial appointments is essential - Held (per Chelameswar, J.) (Minority opinion): There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, H 48 SUPREME COURT REPORTS [2015] 13 S.C.R. A political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary The basic feature of the Constitution is not primacy of the opinion of the CJ/ (Collegium) but lies in non- investiture of B absolute power in the President (Executive) to choose and appoint judges of Constitutional Courts -- To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically C disproved - Judiciary is not the only constitutional organ which protects liberties of the people -Accordingly, primacy to the opinion of the judiciary in the matter of judicial appointments is not the only mode of securing independence of judiciary for protection of liberties - Consequently, the assumption that primacy of the Judicial Branch in the appointments process is an essential element and thus a basic feature is empirically flawed without any basis. 0 Judiciary - Higher judiciary - Constitutional Courts - E Selection of Judges - Scheme envisaged in terms of six member National Judicial Appointments Commission (NJAC) - Whether the presence of the Law Minister in the NJAC, which confers 116 of the voting power per se undermines the independence of the judiciary - Held (per F Chelameswar, J.) (Minority opinion): No- The Executive with a vast administrative machinery under its control is capable of making enormous and valuable contribution to the selection process - The objection is justified to some extent on the trust deficit in the Executive Branch in the G constitutional sense, to be a component of the NJA C - The same logic applies a fortiari to the Judicial branch, notwithstanding the belief that it is the least dangerous branch - The Constituent Assembly emphatically declined to repose exclusive trust even in the CJ/ - To wholly eliminate the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 49 Executive from the process of selection would be inconsistent A with the foundational premise that government in a democracy is by chosen representatives of the people - Such exclusion has no parallel in any other democracy whose models were examined by the Constituent Assembly - Established principles of constitutional government B practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation. in the selection process abrogates a basic feature-Exclusion of the Executive Branch is destructive of C the basic feature of checks and balances- a fundamental principle in constitutional theory. Constitution of India-Art. 124A(1)(d)- Stipulation in Article 124A(1 )(d) that the National Judicial Appointments D Commission (NJAC) should also consist of two eminent persons nominated by a Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition - Legality of - Held (per Chelameswar, J.) (Minority opinion): To believe that members of the judiciary E alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society - All power could be misused including judicial power - The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse - The power to nominate F two eminent persons is conferred upon three high constitutional functionaries - the Prime Minister, the Leader of the Opposition and the CJ/ - It is elementary political knowledge that the Prime Minister and the Leader of Opposition would always have conflicting political interests G and would rarely agree upon any issue - Nonetheless, possibility of a bipartisan compromise cannot be ruled out - Though, the presence of CJ/ in the Committee should normally be a strong deterrent, the possibility of the CJ/ failing H 50 SUPREME COURT REPORTS [2015] 13 S.C.R. A B appointments to constitutional courts - to perceive a political compromise or helplessness in the event of such compromise, cannot be ruled out - It is incontestable that nomination of eminent persons is not immune to judicial review- There is thus possibility of delay in functioning of NJAC and inevitably the process of It is, therefore, essential that there must be an entrenched process of nomination of eminent persons which eliminates risk of possible bipartisan compromises - The only conceivable curative is to incorporate another tier of scrutiny/n the process C of nomination - Following safeguard would bring this process within permissible contours of the basic feature simultaneously eliminating the 'delay factor' - The Committee contemplated under Article 124-A(1 )(a) should prepare a panel of three members for each of the two categories of the nominees (for eminent persons) - in all a panel of six persons - Such panel should be placed before the full house of the Supreme Court for voting - Nominees securing the highest vote in each of the two categories should E eventually be nominated as eminent members of the NJAC - Such procedure would still preserve the choice of eminent persons primarily with the Committee contemplated under Art. 124-A, while incorporating sufficient safeguard against possible abuse of the power by the Committee. 0 F Constitution of India - Art. 1248(c) - Article 1248 set forth the duties of the National Judicial Appointments Commission (NJAC) - Art. 124B(c) obligating NJAC to ensure that the person recommended is of ability and integrity- Contention that the amendment does not lay down G any guidelines to be followed by the NJAC for assessing ability and integrity - Held (per Chelameswar, J.) (Minority opinion): Even in the absence of any express declaration, such an obligation is inherent and implied, having regard to functional responsibilities entrusted to the NJAC - The H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 51 precision is only an abundanti cautela - Having regard to A the nature (i) of the document by which such obligation is created; (ii) fhe composition of the body (NJAC} upon which the obligation is cast; and (iii) the nature of the assignment, the argument is required to be rejected - NJAC is a constitutional authority created to perform an important B constitutional function - Its charter is the Constitution itse/f Notwithstanding, the prolixity of our Constitution, a constitution is not expected or required to spell out every minute detail regarding administration of the State - Three members of the highest judicial body of this country, a member of the C Union Cabinet and two eminent persons chosen by a Committee consisting of three exalted office holders under the Constitution constitute the NJAC- To suggest that the NJAC requires detailed guidelines expressly spelt out in the text of the Constitution amounts to judicially mandating inflexible standards for constitutional drafting - The task of expounding a Constitution is crucially different from that of construing a statute - Even prior to the amendment, the constitutional text had no express guidelines for the President E and the CJ/ to follow-After the amendment, the obligation is unvaried - The only change is in the composition of the players to whom the task is entrusted and the mode of performing the task is altered with a-view to achieve greater degree of transparency in the selection process- To contend F that the amendment is destructive of the basic structure since it does not lay down any guidelines tantamounts to holding that the design of the Constitution as originally enacted is defective! 0 · National Judicial Appointments Commission Act, 2014 G - s.6(6) - Stipulation under s.6(6) of the Act that if any two members of the NJAC do not agree with recommendation proposed by the NJAC, the NJAC shall not recommend such candidate - Legality of - Held (per H 52 SUPREME COURT REPORTS [2015] 13 S.C.R. A Chelameswar, J.) (Minority opinion): The question whether the content of s. 6(6) confers a power of veto or prescribes a special majority is only of semantic relevance - Whatever name one calls it, the result is the same - The two members of the NJAC can override the opinion of the other four and B stall the recommendation - There is nothing inherently illegal about such a prescription. Judiciary - Higher judiciary - Constitutional Courts - 0 Appointment and transfer of Judges- Collegium system - If C appropriate for assessment of the suitability of candidates for appointment as Judges of Constitutional Courts - Held (per Chelameswar, J.) (Minority opinion): The fiasco created in Dinakaran case and Shanti Bhushan case would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process - The abovementioned two are not the only cases where the system failed - It is a matter of public record that in the last 20 years, after the advent of the collegium system, number of recommendations made E by the collegia of High Courts came to be rejected by the col/egium of the Supreme Court - There are also cases where the collegium of the Supreme Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court collegium giving scope for a F great deal of speculation as to the factors which must have weighed with the collegium to make such a quick volte face - Such decisions may be justified in some cases and may not in other cases - There is no accountability in this regard - The records are absolutely beyond the reach of any person including the judges of the Supreme Court who are not lucky enough to become the Chief Justice of India - Such a state of affairs does not enhance the credibility of the institution and is not good for the people of this country. G Constitution (Ninety-ninth Amendment) Act, 2014 - H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 53 Validity of - Held (per Chelameswar, J.) (Minority opinion): A The amendment is upheld. National Judicial Appointments Commission Act, 2014 - Validity of- Held (per Chelameswar, J.) (Minority opinion): In view of the majority decision holding the Constitution (Ninety-ninth Amendment) Act to be unconstitutional and 8 void, there is no useful purpose in examining the constitutionality of the National Judicial Appointments Commission Act, 2014 - Constitution (Ninety-ninth Amendment) Act, 2014. c Constitution of India - "Basic Features" and "Basic Structure" - Held (per Chelameswar, J.) (Minority opinion): The expressions 'basic structure' and 'basic features' convey two different ideas - The basic structure of the Constitution is the sum total of the basic features of the Constitution - o The basic features are components of basic structure- Either a particular Article or set of Articles can constitute a basic feature of the Constitution - Amendment of one or some of the Articles constituting a basic feature may or may not result in the destruction of the basic structure of the Constitution. E Practice and Procedure - Supreme Court - Recusal of Judge at the asking of a litigating party- If proper - New scheme contemplated for replacing the Collegium system of appointment and transfer of Judges in Constitutional Courts - National Judicial Appointments Commission set F up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - Constitutional validity of the said two enactments challenged in writ petitions filed before the G Supreme Court of India- Matter originally listed before three Judge Bench - Later referred to a five-Judge Bench, comprising of Ani/ R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ. - Subsequently, Hon'ble CJ/ reconstituted the Bench with J.S. Khehar, J. H 54 SUPREME COURT REPORTS [2015] 13S.C.R. 0 B A Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ. - Hon'ble Mr. Justice J. S. Khehar, Presiding Judge on the reconstituted Bench, at that time was a member of the Collegium of five H<?n'ble Judges - When the reconstituted Bench commenced hearing, prayer made for recusal of Hon'ble Mr. Justice J. S. Khehar from the Bench - Prayer for recusal on ground that the position of Hon'ble Mr. Justice J.S. Khehar as the Presiding Judge on the Bench was not consistent with (and apparently at conflict with) his position as a member of the 'Collegium' which exercises C significant constitutional power; and that it was inappropriate if a sitting member of a Collegium sat in judgment over a scheme that sought to replace it- Held: Not tenable- Held (per Khehar, J.): There is no doubt about the fact, that I have been a member of the 1 +4 collegium, and it is likely that I would also shortly become a Member of the NJAC, if the present challenge raised by the petitioners was not to I would therefore remain a part of the selection succeed - procedure, irrespective of the process which prevails- That E however is the position with reference to four of the instant five-Judge Bench - Besides me, my colleagues on the Bench- J. Chelameswar, Madan B. Lokur and Kurian Joseph, JJ. would in due course be a part of the collegium (if the writ petitioners were to succeed), or alternatively, would be a part In such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues - But, that was not the manner in which the issue has been canvassed- The prayer for my recusal is thus not G well founded- If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent - A Judge may recuse at his own, from a case entrusted to him by the Chief Justice - That would be a matter F of the NJAC (if the writ-petitioners were to fail) - H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 55 of his own choosing- But recusal atthe asking of a litigating A party, unless justified, must never to be acceded to - For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection -A Judge before he assumes his office, takes an oath.to discharge his duties without fear or favour- He would breach his oath of B office, if he accepts a prayer for recusal, unless justified - It is my duty to discharge my responsibility with absolute earnestness and sincerity- It is my duty to abide by my oath of office, to uphold the Constitution and the laws - My decision to continue to be a part of the Bench, flows from the C oath which I took, at the time of my elevation to this Court - Held (per Chelameswar, J.) (for himself and Goel, J.): It is one of the settled principles of a civilised legal system that a Judge is required to be impartial - It is said that the hallmark D of a democracy is the existence of an impartial Judge - From earlier decisions, the following principles emerge; (1) If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case; (2) In cases where the interest of the Judge in the case is other than E financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of "real danger" or "reasonable apprehension" of bias; and (3) The Pinochet case added a new category i.e F that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case - It is nobody's case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the G second of the above-mentioned categories - By the very nature of the case, no such interest can arise at all- Insofar as the principle of law laid down in Pinochet case is concerned, all the parties to these proceedings claim to be promoting H 56 SUPREME COURT REPORTS [2015] 13 S.C.R. A 0 the cause of ensuring the existence of an impartial and independent judiciary - The only difference of opinion between the parties is regarding the process by which such a result is to be achieved - Therefore, it cannot be said that Justice Khehar shares any interest which any one of the B parties to the proceeding is seeking to promote - The implication of submission made by the petitioners is that Justice Khehar would be pre-determined to hold the impugned legislation to be invalid - One fails to understand the stand of the petitioners - If such apprehension of the C petitioners comes true, the beneficiaries would be the petitioners only- The grievance, if any, on this ground should be on the part of the respondents - Only a party who has suffered or likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection - The significant power as described by the petitioners does not inhere only to the members of the Collegium, but inheres in every Judge of the Supreme Court who might be called upon to express his opinion regarding the proposals of various appointments of the High Court Judges, Chief Justices or Judges of Supreme Court- While the members of the Collegium are required to exercise such "significant power" with respect to each and every appointment of the above-mentioned categories, the other F Judges of the Supreme Court are required to exercise such "significant power'', at least with respect to the appointments to or from the High Court with which they were earlier associated with either as judges or Chief Justices - The argument of the petitioners, if accepted would render all the G Judges of this Court disqualified from hearing the present controversy-A result not legally permitted by the "doctrine of necessity" - For the above-mentioned reasons, the submission that Justice Khehar should recuse from the proceedings is liable to be rejected - Held (per Kurian, J.): E H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 57 There is no situation warranting recusal of Justice Khehar in A this case - However, it is appropriate also to deal with the other side of the coin, whether a Judge should state reasons for his recusal in a particular case- Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate B the reasons for recusing from the case so that the litigants or the well-meaning public may not entertain any misunderstanding that the recusa/ was for a/together irrelevant reasons like the cases being very old, involving detailed consideration, decision on several questions of law, C a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, Judge wanting not to cause displeasure to · anybody, Judge always wanting not to decide any sensitive D or contro_versial issues, etc. - Once reasons for recusa/ are indicated, there will not be any room for attributing any motive for the recusal - This would help to curb the tendency for forum shopping - Impartiality of a Judge is the sine qua non for the integrity institution- Transparency in procedure is one E of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court - The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not F recused to hear his case - Reasons are required to be indicated broadly- Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want G to disclose, he has decided to recuse himself from hearing the case- Held (per Lokur, J.): When an application is made for the recusal of a judge ftom hearing a case, the application is made to the concerned judge and not to the Bench as a H 58 SUPREME COURT REPORTS [2015] 13 S.C.R. B A whole - Therefore, Justice Khehar is absolutely correct in stating that the decision is entirely his - As far as the view expressed by Justice Kurian Joseph that reasons.should be given while deciding an application for recusal, I would prefer not to join that decision - In the first place, giving or not giving reasons was not an issue herein- That reasons are presently being given is a different matter a/together- Secondly, the giving of reasons is fraught with some difficulties - The issue of recusal from hearing a case is not as simple as it appears - The questions thrown up are quite significant and since it C appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in· this regard - If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench - Judiciary- Higher Judiciary- Constitutional Courts-Appointment and transfer of Judges. 0 Judiciary- Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Primacy of the judiciary- Earlier decisions of Supreme Court in First Judges E case, Second Judges case and Third Judges case - In the First Judges case (S.P. Gupta v. Union of India), the function of appointment of Judges to the higher judiciary, was described as an executive function, and it was held by a seven-Judge Bench per majority, that the ultimate power of F appointment, unquestionably rested with the President- The judgment was overruled in the Second Judges case (Supreme Court Advocates-on-Record Association v. Union of India), wherein it was held by a nine-Judge Bench that primacy with reference to the ultimate power of appointment (or transfer) vested with the judiciary - Exposition of law declared in the Second Judges case, was reaffirmed by a nine-Judge Bench in the Third Judges case (In Re: Special Reference No. 1 of 1998) - The Union of India, then framed a Memorandum of Procedure on 30.6.1999, for the G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 59 appointment of Judges and Chief Justices to the High Courts A and the Supreme Court, in consonance with the Second Judges case and Third Judges case - And appointments came to be made thereafter, in consonance with the Memorandum of Procedure - New scheme now contemplated under the ambit of the National Judicial B Appointments Commission set up under the aegis of the Constitution (Ninety-ninth Amendment) Act, 2014 read with National Judicial Appointments Commission Act, 2014- But constitutional validity of these two enactments directly challenged in the instant proceedings- Petitioners inter alia C relied on the judgment in the Second Judges case, and the judgment in the Third Judges case whereas Respondents, inter alia relied on the judgment rendered in the First Judges case, and sought reconsideration of the decisions rendered D in the Second and Third Judges cases- Prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases - Held (per order of the Court): Not tenable - Held (per Khehar, J.): The power of review was exercised and stood expended when the First Judges case E 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 accepted as binding, the decision rendered in the Second Judges case, to try and re-agitate F 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 declaration, in the Second and Third Judges cases - Further, there is a complete comity of G 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 H 60 . A SUPREME COURT REPORTS [2015] 13 S.C.R. in black and white - It is not possible to accept, that in the procedure contemplated under the Second and Third Judges cases, 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 - 0 B 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 cleady erroneous for the respondents to C 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 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 Justice of India - The E above, further demonstrates the executive role in the selection of Judges to the higher judiciary- Historically also, all the three wings of governance, have uniformally maintained, that while making appointments of Judges to the higher judiciary, "independence of the judiciary" was accepted F 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 In view of the above under Articles 124, 217 and 222 - G 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 - Also the framers of the Constitution while drafting Article 50 of the Constitution, were clear and unanimous in their view, that there need to be a H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 61 judiciary, separated from the influences of the executiv.e - A Supreme Court on a harmonious construction of the provisions of the Constitution, in the Second and Third Judges 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 B be understood as giving primacy to the view-expressed by the judiciary, through the Chief Justice of India - Further, the Supreme Court, through a five-Judge Bench, in Sisir Kanta Satapathy case, has held, that recommendations made by the High Court in the consultative process envisaged under C 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 ununderstandab/e how the Union of D India, desires to persuade this Court, to 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 also governing the judiciary - Held (per Lokur, J.): At least since 1935, if not earlier, the E appointment of judges was made in accordance with the view of the Chief Justice of India or the Chief Justice of the High Court as the case may be - But even in those cases where there were aberrations pre-1959 (with the Chief Justice of the High Court having been by-passed) the concurrence of the F Chief Justice of India was taken - The executive, therefore, never had real primacy in the matter of appointment of judges - The Constitution postulates a consultative and participatory process between the constitutional functionaries for appointing the 'best' possible person as a judge of a High G Court or the Supreme Court - In this consultative process the final word is given, by a constitutional convention and practice developed over the years, to the Chief Justice of India since that constitutional functionary is best equippe.d H 62 SUPREME COURT REPORTS [2015] 13 S.C.R. A 0 B to .appreciate the requirements of effective justice delivery, to maintain the independence of the judiciary, to keep at bay . external influences, 'eliminate political influence even at the stage of initial appointment of a Judge' and as the head of the judiciary, his/her judgment ought to be trusted in this regard - Dr. Ambedkar was of the confirmed view that the judiciary should be independent and impartial and ifthe Chief Justice of India does not have the final say in the matter then the judiciary is, in a sense, under some other authority and' therefore not independent to that extent- The constitutional C convention, the constitutional scheme and the constitutional practice recognize the responsibility of the judiciary in the appointment of judges and this was merely formalized in the Second Judges case- The theory of the separation of powers or the distribution of powers was maintained by the Second Judges case rather than thrown overboard- The Constitution enjoins upon 'separateness but interdependence, autonomy but reciprocity' and the Second Judges case has effectively maintained this equilibrium E between the judiciary and the political executive, keeping the independence of the judiciary in mind, including the appointment of judges- Taking all these factors and the CAD into account, all of which were discussed in the Second Judges case it is difficult to accept the contention that the F Second Judges case requires reconsideration on merits - The Second Judges case was accepted by the Attorney General as mentioned in the Third Judges case and also by the President who did not raise any question about the interpretation given to Article 124(2) and Article 217(1) of the G Constitution - These constitutional authorities having accepted the law laid down in the Second Judges case, there is no reason to reconsider that decision - There are no exceptional circumstances, clear and compelling reasons for reconsideration, nor can it be said that the Second Judges its branches H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 63 case was plainly erroneous or that it has a baneful effect on A the public - On the contrary, the decision restored the independem;e of the judiciary in real terms and eliminated the baneful effect of executive controls - Also, it was categorically laid down in Samsher Singh case that the last word in matters pertaining to judiciary should be with the Chief B Justice of India - Samsher Singh case was decided by a Bench of seven judges and no one has said that that decision requires reconsideration or that it does not lay down the correct law- The Second Judges case merely reiterates the 'last word' view in a limited sense- The Second Judges case C has been correctly decided and the conventions and the principles laid down therein flow from our constitutional history and these.do not need any reconsideration - The only question now is whether the 991 h Constitution Amendment Act violates the basic structure of the Constitution and to D decide this question it is not necessary to reconsider the Second Judges case or the Third Judges case - This is apart from the fact that reconsideration is not warranted at law, even on merits - Held (Kurian, J.): Once the Supreme Court has E addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for revisit shall not be welcomed unless it is shown that the structural interpretation is palpably erroneous- None before this Bench could blur the graphic picture on the F scheme of appointment of Judges and its solid structural base in the Constitution portrayed in the Second Judges Case - Held (per Goel, J.): The settled principle is that court should not, except when it is demonstrated beyond all reasonable doubts that its previous ruling given after due G deliberation and full hearing was erroneous, revisit earlier decisions so that the law remains certain - In exceptional circumstances or under new set of conditions in the light of new ideas, earlier view, if considered mistaken, can be H \ 64 A SUPREME COURT REPORTS [2015] 13 S.C.R. reversed - While march of law continues and new systems can be developed whenever needed, it can be done only if earlier systems are considered unworkable - No such situation has arisen - On settled principles, no case for revisiting earlier decisions by larger Benches is made out - B As regards the contention that there was patent error in the earlier decisions, the Second Judges' case shows that the Constituent Assembly Debates were exhaustively quoted and considered - Neither the debates nor the text adopted by the Constitution show that the power of appointment of Judges C was intended to be conferred on the Executive or the Legislature - The practice and convention ever since the commencement of the Constitution showed that proposal for appointment was always initiated by the Judiciary and the last word on the subject belonged to the CJ/ - This scheme D was consistent with the intention of the Constitution makers - The Judicial <:;ommissions in other countries and provisions of Constitutions of other countries conferring power on the Executive to appoint Judges may also not call for reconsideration of the Second Judges' case as many of such and similar provisions were duly considered in the Second Judges' case - No case thus made out for revisiting the earlier decisions in Second and Third Judges' cases - Held (Chelameswar, J.) (Minority opinion): This nation has F witnessed many unpleasant events connected with judicial appointments - events which lend credence to the speculation the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent G and efficient judiciary - There are conflicting opinions regarding the jurisprudential soundness of the judgment of Second Judges case - It is not necessary to examine that aspect of the matter for the purpose of determining the present controversy. E H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. In the judgment of Khehar. J.: S.P. Gupta v. Union oflndia 1981 (Supp) SCC 87 : 1982 SCR 365; Supreme CourtAdvocates-on Record Association v. Union of India (1993) 4 sec 441 : 1993 (2) Suppl. scR 659; Re: Special Reference No.1 of 1998 (1998) 7 SCC 739 : 1998 (2) Suppl. SCR 400; Subhash Sharma v. Union oflndia1991 Supp (1) SCC 574: 1990 (2) Suppl. SCR 433; Supreme Court in Union of India v. Sankalchand Himatlal Sheth (1977) 4 sec 193: 1978 (1) SCR 423; T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 : 2002 (3) Suppl. SCR 587; Re: Special Reference No. 1 of 2002 (2002) 8 SCC 237 : 2002 (3) Suppl. SCR 366; S.R. Chaudhuri v. State of Punjab (2001) 7 SCC 126 : 2001 (1) Suppl. SCR 621; Indra Sawhney v. Union of India 1992 Supp (3) sec 211: 1992 (2) Suppl. SCR 454; Kesavananda Bharati v. State of Kera/a (1973) 4 SCC 225 : 1973 (0) Suppl. SCR 1; Samsher Singh v. State of Punjab (197 4) 2 SCC 831 : 1975 (1) SCR 814; Manoj Narula v. Union of India (2014) 9 SCC 1; Bhim Singh v. Union of India (2010) 5 SCC 538: 2010 (6) SCR 218; State of U.P. v. Jeet s. Bisht (2007) 6 sec 586 : 2001 (7) SCR 705; Suraz India Trust v. Union of India (2012) 13 sec 497: 2011 (4) SCR 224; Jindal Stainless Limited v. State of Haryana (2010) 4 SCC 595: 2010 (4) SCR 743; Re: Cauvery Water Disputes Tribunal 1993 Supp (1) SCC 96: 1991 (2) Suppl. SCR 497; Kera/a State Science and Technology Museum v. Rambal Co. (2006) 6 SCC 258 : 2006 (4) Suppl. SCR 243; Bengal Immunity Co. Ltd. v. State of Bihar (1955) 6 SCR 603; Magan/al Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay (1974) 2 SCC 402: 65 A B c D E F G H 66 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. 1975 (1) SCR 1; Union of India v. Raghubir Singh (1989) 2 SCC 754: 1989 (3) SCR 316; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 sec 111 : 2002 (3) SCR 100; Mineral Area Development Authority v. Steel Authority of India (2011) 4 SCC 450 : 2011 (4) SCR 19; State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201 : 2004 (1) India Cement Ltd. v. State of Tamil SCR 564; Nadu (1990) 1 SCC 12 : 1989 (1) Suppl. SCR 692; ·Sub-Committee of Judicial Accountability v. Union of India (1992) 4 SCC 97; State of Bombay v. United Motors (India) Ltd. (1953) SCR 1069; Keshav Mills Co. Ltd. v. Commissioner of Income-tax, Bombay North (1965) 2 SCR 908; Lt. Col. Khajoor Singh v. Union oflndia (1961) 2 SCR 828; Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh (1980) 1 SCC 223 : 1980 (1) SCR 769; Gannon Dunkerley and Co. v. State of. Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl. SCR 103; Registrar(Admn.), High Court of Prissa, Cuttack v. Sisir Kanta Satapathy (1999) 7 SCC 725 : 1999 (2) Suppl. SCR 473; Minerva Mills Ltd. v. Union of/ndia (1980) 3 SCC 625: 1981 (1) SCR 206; Kihoto Hollohan v. Zachil/hu 1992 Supp (2) SCC 651 : 1992 (1) SCR 686; Madras Bar Association v. Union of/ndia (2014) 10 SCC 1: M. Nagaraj v. Union of India (2006) 8 SCC 212: 2006 (7) Suppl. SCR 336; Sardari Lal v. Union of India AIR 1971 SC 1547 : 1971 (3) SCR 461; Union of India v. R. Gandhi (2010) 11 SCC 1 : 2010 (6) SCR 857; Shreya Singhal v. Union of India (2015) 4 SCALE 1; State of Madras v. V. G. Row (1952) SCR 597; I. C. Golak Nath v. State of Punjab AIR (1967) SC 1643 : 1967 SCR 762; Scindia Bahadur v. Union of India (1971) 1 SCC 85 : 1971 (3) SCR 9; Centre for Public Interest SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. ~ Litigation v. Union of India (2012) 3 SCC 1 : 2012 (3) SCR 147; Manohar Lal Sharma v. Principal Secretary{2014) 2 SCC 532; Shashikant Laxman Kale v. Union of/ndia (1990) 4 SCC 366 : 1990 (3) SCR 441; Re: the Special Courts Bill, 1978 (1979) 1 SCC 380; Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682: 2014 (6) SCR 873; Dr. Kashinath G Jalmi v. The Speaker AIR 1993 SC 1873; A.K. Roy v. Union of India (1982) 1 SCC 271: 1982 (2) SCR 272; Charanjit Lal Chowdhury v. Union oflndia Ram AIR (1951) SC 41 : 1950 SCR 869; Krishna Dalmia v. Justice S.R. Tendolkar AIR (1958) SC 538: 1959 SCR 279; B. Banerjee v. Anita Pan (1975) 1SCC166: 1975 (2) SCR 774; Government of Andhra Pradesh v. P. Laxmi Devi (2008) 4 sec 120 : 2008 (3) SCR 330; Mohd. HanifQuareshiv. State of BiharAIR 1958 SC 731: 1959 SCR 629; State of West Bengal v. Anwar Ali Sarkar1952 SCR 284; Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1 : 1976 SCR 347; Waman Rao v. Union of India (1981) 2 SCC 362 : 1981 (2) SCR 1; Asif Hameed v. State of Jammu and Kashmir1989 Supp (2) SCC 364: 1989 (3) SCR 19 ; State of Bihar v. Bihar DisW/ery Limited (1997) 2 sec 453 : 1996 (9) suppl. scR 479; Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Corporation of the City of Bangalore (1961) 3 SCR 707; Khadim Hussain v. State of U.P. (1976) 1 SCC 843 : 1976 (3) SCR 1; B.K. Srinivasan v. State of Karnataka (1987) 1 SCC 658: 1987 (1) SCR 1054; People's Union for Civil Liberties v. Union of India (2005) 5 SCC 363; In re: Hindu Women's Rights to Property Act, 1937 AIR 1941 FC 72; Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha 1961 (1) SCR 96; R. C. Poudyal v. Union of India 1994 Supp (1) SCC 324 : 1993 67 A B c D E F G H 68 A 8 c ·o E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. (1) SCR 891; Property Owners' Association v. State of Maharashtra (1996) 4 SCC 49 : 1996 (2) Suppl. SCR 230; Property Owners' Association v. State of Maharashtra (2001) 4 SCC 455; Property Owners'Association v. State of Maharashtra (2013) 7 SCC 522; State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd. (1977) 1 SCC 643: 1977 (1) SCR 1002; India Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore (1975) 3 SCC 512 : 1975 (2) SCR 612; Ko/hapur Canesugar Works Ltd. v. Union of India (2000) 2 sec 536 : 2000 (1) SCR 518; State of U.P. v. Hirendra Pal Singh (2011) 5 SCC 305: 2010 (15) SCR 854; Joint Action Committee of Air Line Pilots' Association of India v. Director Gen.era/ of Civil Aviation (2011) 5 SCC 435 : 2011 (5) SCR 1019; State of Tamil Nadu v. K. Shyam Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094; Municipal Committee, Amritsar v. State of Punjab (1969) 1 sec 475 : 1969 (3) SCR 447; K.A Abbas v. Union of India (1970) 2 SCC 780 : 1971 (2) SCR 446; T.N. Seshan v. Union oflndia (1995) 4 sec 611 : 1995 (2) Suppl. scR 106; t.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 : 2007 (1) SCR 706; Lily Thomas v. Union of India; (2013) 1 sec 653: 2013 (10) SCR 1130; Chief Election Commissioner v. Jan Chaukidar (2013) 7 SCC 507; State of Karnataka v. Union of India (1977) 4 SCC 608 : 1978 (2) SCR 1; Ku/dip Nayar v. Union of India (2006) 7 SCC 1 : 2006 (5) Suppl. SCR 1; Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 : 2008 (4) SCR 1; Public Services Tribunal Bar Association v. State of U.P. (2003) 4 sec 104 : 2003 (1) SCR 666; Uttar Pradesh Power Corporation Limited v. Rajesh Kumar(2012) 7SCC1: 2012 (4) SCR 118; State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640: SUPREME COURT ADVOCAJES-ON-RECORD . ASSOCIATION v .. U.0.1. 2000 (2) SCR 299; Nawal Kishore Mishra v. High Court of Judicature of Allahabad (2015) 5 SCC 479 : 2015 (3) SCR 107; West U.P. Sugar Mills Association v. State of U.P. (2002) 2 SCC 645: 2002 (1) SCR 897; Gammon India Ltd. v. Special ,· Chief Secretary (2006) 3 SCC 354: 2006 (2) SCR 304 - referred to. Ameer-un-Nissa Begum v. Mahboob Begum AIR 1955 SC 352; Firm A. T.B. Mehtab Majid & Co. v. State of Madras AIR 1963 SC 928 : 1963 Suppl. SCR 435; B.N. Tewari v. Union of India AIR 1965 SC 1430 : 1965 SCR 421; Koteswar Vittal Karnath v. K. Rangappa Baliga & Co. (1969) 1 SCC 255: 1969 (3) SCR 40; Mulchand Odhavji v. Rajkot Borough Municipality (1971) 3 SCC 53; Mohd. Shaukat Hussain Khan v. State of Andhra Pradesh (1974) 2 SCC 376: 1975 (1) SCR 429; Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985) 1 SCC 641 : 1985 (2) SCR 287; Bhagat Ram Sharma v. Union of India 1988 (Supp) sec 30 : 1988 SCR 1034; and State of Rajasthan v. Mangilal Pindwal (1996) 5 sec 60 : 1996 (3) Suppl. SCR 98 - held inapplicable. Speech by Sardar Vallabhbhai Patel on 15.7.1947; "Constitutional Law of India", 41 h edition, by H.M. Seervai; Fourteenth Report of the Law Commission on Judicial Reform (1958); The Beijing Statement of Principles of the "Independence of the Judiciary"; Speech of Dr. B.R. Ambedkar (in the Constituent Assembly on 24.5.1949); "Roses in December - An Autobiography" by M.C. Chagla; "Neither Roses Nor Thorns" by H.R. Khanna; "Constitutional Law of India -A Critical Commentary' by H.M. Seervai; Articles titled "Making the Angels 69 A B c D E F G H 70 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. Weep", and "Where Angels Fear to Tread" by Lord Cooke of Thorndon; "Story of a Chief Justice", by U.L. Bhat; 5th V.M. Tarkunde Memorial Lecture by Ruma Pal, J., on the topic "An Independent Judiciary"; "The Other Side of Justice" by S.S. Sodhi; "Before Memory Fades" by Fali S. Nariman; Article bearing the title "Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts", by Nick Robinson; Article - "The Bases of Power and the Power/Interaction Model of Interpersonal Influence" by Bertram Raven, Analyses of Social Issues and Public Policy, Vol. 8, No.1, 2008, pp. 1-22; Article - "Effects of a Favour and Liking on Compliance" by Dennis T. Regan, Cornell University; "Influence: The Psychology of Persuasion" - Robert Cialdini, Regent's Professor Emeritus of Psychology and Marketing, Arizona State University; Article titled "Loyalty, Gratitude, and the Federal Judiciary", by Laura E. Little, Associate Professor of Law, Temple University School of Law; Paper on "Guarding the Guardians: Judicial Councils and Judicial Independence" by Nuno Garoupa and Tom Ginsburg, Law School, University of Chicago, November 2008; and Southerland's Statutory Construction, 3rd Edition, Volume I - referred to. In the order of Chelameswar. J.: Supreme Court Advocates-on-Record Association & Ors. v. Union of India, (1993) 4 SCC 441; and P.O. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 sec 380 - referred to. Dimes v. Proprietors of Grand Junction Canal, (1852) 10 ER 301; Regina v. Gough (1993) AC 646; Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte, SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1: (1999) 1 All E.R. 577; Wakefield Local Board of Health v. WestRiding and Grimsby Rly Co. (1865) 1 Q.B. 84; R V. Byles exp. Hollidge (1912) 77 J.P. 40; R. v. Nailsworth Licensing Justices exp. Bird [1953) 1 W.L.R. 1046; R v. Lilydale Magistrates Court exp. Ciccone [1973) V.R. 122; R. v. Antrim Justices [1895) 21.R. 603; To/putt (H.) & Co. Ltd. v. Mole [1911) 1K.B.836; and Corrigan v. Irish Land Commission [1977] l.R. 317 - referred to. R. Grant Hammond, Judicial Recusal: Principles, Process and Problems, (Hart Publishing, 2009) - referred to. In the judgment of Chelameswar. J.: His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a & Another (1973) 4 sec 225 : 1973 (0) Suppl. SCR 1; S.P. Gupta v. Union of India & Ors. AIR 1982 SC 149: 1982 SCR 365; L. C. Chandra Kumar and Ors. v. Union of India and Ors. (1997) 3 SCC 261 : 1997 (2) SCR 1186; Supreme Court Advocates-on Record Association & Others v. Union of India (1993) 4. sec 441 : 1993 (2) Suppl. SCR 659; Union of India H. Sankalchand Himatlal Sheth &Anr. (1977) 4sec193: 1978 (1) SCR 423; Chandramouleshwar Prasad v. Patna High Court and Ors. (1969) 3 SCC 56 : 1970 (2) SCR 666; Samsher Singh v. State of Punjab Al R 1974 SC 2192 : 1975 (1) SCR 814; Subhash Sharma v. Union oflndia (1991) Supp.1SCC574 : 1990 (2) Suppl. SCR 433 ; Special Reference No.1 of 1998 (1998) 7 SCC 739 : 1998 (2) Suppl. SCR 400; Shanti Bhushan & Another v. Union of India & Another (2009) 1 SCC 657 : 2008 (17) SCR 791; PD. Dinakaran (1) v. Judges Inquiry 71 A B c D E F G H 72 A B c D E F G H SUPREME COURT REPORTS [2015] 13S.C.R. Committee (2011) 8 SCC 380 : 2011 (10) SCR 1064; P.O. Dinakaran (2) v. Judges Inquiry Committee & Another (2011) 8 SCC 474; L Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261 : 1997 (2) SCR 1186; l.C. Golak Nath and Ors. v. State of Punjab and Anr. (1967) 2 SCR 762; Minerva Mills Ltd. & Ors. v. Union of India & Ors. (1980) 3 SCC 625; Waman Rao & Ors. etc. etc. v. Union of India & Ors. (1981) 2 SCC 362; Indira Nehru Gandhi v. Raj Narain (1975) Supp sec 1; S.R. Bommai v. Union of India (1994) 3 sec 1; M. Nagaraj & Others v. Union of India & Others (2006) 8 SCC 212; l.R. Coelho (Dead) By LRs v. State of T.N. (2007) 2 SCC 1; A.K. Gopalan v. State of Madras AIR 1950 SC 27; ADM Jabalpur v. S.S. Shukla Etc.Etc. AIR 1976 SC 1207; Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr. AIR 1967 SC 1; Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 - referred to. Marbury v. Madison 5 U.S 137 (1803); Valente v. Queen {Supreme Court of Canada] (1985) 2 SCR 673; Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (1999) 1 Al.I E.R. 577 - referred to. Sir William Blackstone's, Commentaries on the Laws of England, (1765) Vol. I p. 269; Fali S. Nariman, Before Memory Fades: An Autobiography, [First Edition Hay House (2010 ), p.348 ]; Constituent Assembly Debates, 24th . May 1949 (Vol. Vlll);Abhinav Chandrachud, The Informal Constitution : Unwritten Criteria in Selecting Judges for the Supreme Court of India, (Oxford University Press, United Kingdom 2014) See Pages 113 to 120; Iyer, V.R. Krishna, Judiciary: A reform agenda-II, The Hindu (on line edition) 15.08.2002; "An Independent Judiciary" SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. . 73 - speech delivered by Ms. Justice Ruma Pal atthe 5th V.M. Tarkunde Memorial Lecture on 101h November 2011; Mehta, Pratap Bhanu, 'Whom do you trust', The Indian Express, May 14, 2015; The National Commission to Review the Working of the Constitution (NCRWC), 2002 chaired by Justice M.N. Venkatachaliah; Fali S. Nariman, Before Memory Fades - An Autobiography, p. 389; Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10- 11; Laurence H. Tribe (American Constitutional Law) Second Edition - referred to. In the order and judgment of Lokur. J.: Court on its own motion v. State & Others MANU/ DE/9073/2007; Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441 : 1993 (2) Suppl. SCR 659; S.P. Gupta v. Union of India 1981 (Supp) SCC 87 : 1982 SCR 365; Subhash Sharma v. Union of India. 1991 Supp (1) sec 574: 1990 (2) Suppl. SCR . 433; Special Reference No. 1 of 1998 (1998) 7 SCC 739: 1998 (2) Suppl. SCR 400; Union of ·India v. Sanka/chand Himmatlal Sheth (1977) 4 SCC 1993; R. Pushpam v. State of Madras AIR 1953 Mad 392; Sardari Lal v. Union of India (1971) 1 SCC 411: Jyoti Prakash Mitter v. Chief Justice, Calcutta [1965] 2 SCR 53; Union of India v. Jyoti ProkashMitter(1971)1 SCC396: 1971 (3) SCR 483; RamJawaya Kapurv. State of Punjab [1955) 2 SCR 225; Kesavananda Bharati v. State of Kera/a (1973) 4 SCC 225: 1973 (0) Suppl. SCR 1; Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 : 1976 SCR 347; Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 : 1981 (1) SCR 206; l.R. Coelho v. State of Tamil Nadu (2007) 2sec1 : 2001 (1) SCR 706; Bhim Singh A B c D E F G H 74 A B c D E F G H SUPREME COURT REPORTS [2015] 13S.C.R. v. Union of India (2010) 5 SCC 538 : 2010 (6) · SCR 218; State of Tamil Nadu v. State of Kera/a (2014) 12 SCC 696; Mul/aperiyar Environmental Protection Forum v. Union of India (2006) 3 SCC 643: 2006 (2) SCR 740; Administrator-Genera/ of Bengal v. Prem Lal Mullick (1894-95) 22 I.A. 107; A.K. Gopalan v. State of Madras 1950 SCR 88; State of Travancore-Cochin v. The Bombay Co. Ltd. 1952 SCR 1112; Golak Nath v. State of Punjab (1967) 2 SCR 762; Union of India v. H.S. Dhillon (1972) 2 SCR 331; Indra Sawhney v. Union of India 1992 Supp (3) SCC 217: 1992 (2) Suppl. SCR 454; S.R. Chaudhuri v. State of Punjab (2001) 7 SCC .126 : 2001 (1) Suppl. SCR 621; Manoj Narula v. Union of India (2014) 9 sec 1 : 2014 (9) SCR 965; T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; Bengal Immunity Co. Ltd. v. StateofBihar& Ors. AIR 1955 SC 661 : 1955 SCR 603; State of Bombay v. The United Motors (India) Ltd. (1953) 4 SCR . 1069; Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC 532 : 1961 SCR 828; Keshav Mills v. CIT AIR 1965 SC 1636 : 1965 SCR 908; New Jehangir Vakil Mills Ltd. v. CIT (1960) 1 SCR 249; Magan/al Chhaganlal v. Municipal Corporation of Greater Bombay (1974) 2 SCC 402 : 1975 (1) SCR 1; Northern India Caterers v. State of Punjab. AIR 1967 SC 1581 : 1967 SCR 399; Pet/ad Turkey Red Dye Works Co. Ltd., Pet/ad v. CIT (1963) Supp 1 SCR 871; Ganga Sugar Corporation v. State of Uttar Pradesh (1980) 1 SCC 223 : 1980 (1) SCR 769; Union of India v. Raghubir Singh (1989) 2 SCC 754 : 1989 (3) SCR 316; Gannon Dunkerley & Co. v. State of Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl. SCR 103; Builders' Association of India v. Union SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. of India. (1989) 2 sec 645: 1989 (2) SCR 320; Khajoor Singh, Keshav Mills Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 sec 111 : 2002 (3) SCR 100; Sabhajit Tewary v. Union of India (1975) 1 SCC 485; K . . Kamalajammanniavaru v. Special Land Acquisition Officer (1985) 1 SCC 582 : 1985 (2) SCR 914; Bhag Singh v. Union Territory of Chandigarh (1985) 3 SCC 737: 1985 (2) Suppl. SCR 949; R.C. Poudyal v. Union of India 1994 Supp (1) sec 324 : 1993 (1) SCR 891; Sub ·committee on Judicial Accountability v. Union of India (1991) 4 SCC 699; Kartar Singh v. State of Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; Krishna Swami v. Union of India (1992) 4-SCC 605 : 1992 (1) Suppl. SCR 53; Union of India v. Madras Bar Association (2010) 11SCC1: 2010 (6) SCR 857; State of Rajasthan v. Union of India (1977) 3 sec 592 : 1978 (1) SCR 1; State of Karnataka v. Union of India (1977) 4 SCC 608: 1978 (2) SCR 1; Ku/dip Nayar v. Union of India (1996) 1 sec 1 : 1995 (6) Suppl. SCR 11; Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 : 2008 (4) SCR 1; Madras Bar Association . v. Union of India (2014) 10 SCC 1; Minerva Miffs v. Union of India (1980) 3 SCC 625 : 1981 (1) SCR 2()6; Minerva Mills in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1983) 1 sec 147 : 1983 (1) SCR 1000; M. Nagaraj v. Union of India (2006) 8 SCC 212 : 2006 (7) Suppl. SCR 336; Bhim Singhji v. Union of India (1981) 1SCC166; Charanjit Lal Chowdhuri v. Union of India [1950] SCR 869; Ram Krishna Dalmia v. Justice S.R. Tendolkar [1959] SCR . 279; R.K. Garg v. Union of India (1981) 4 SCC 675: 1982 (1) SCR 947; Shri Prithvi Cotton Mills Ltd. v. Broach Borough tytunicipality (1969) 2 SCC 75 A B c D E F G H 76 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. 283 : 1970 (1) SCR 388; K. Sankaran Nair v. Devaki Amma Malathy Amma (1996) 11 SCC 428 : 1996 (6) Suppl. SCR 839; Bhubaneshwar Singh v. Union of India (1994) 6 SCC 77 : 1994 (1) Suppl. SCR 639; Re Cauvery Water Disputes Tribunal (1993) Supp (1) SCC 96 : 1991 (2) Suppl. SCR 497; Indian Aluminium Co. v. State of Kera/a (1996) 7 SCC 637 : 1996 (2) SCR 23; AK. Gopalan v. The State of Madras [1950] 1 SCR 88; Ja/an Trading Company (P) Ltd v. Mill Mazdoor Sabha Union [1967] 1 SCR 15; Karnataka Bank Ltd. v. State of Andhra Pradesh (2008) 2 sec 254 : 2008 (1) SCR 986; Mohd. Hanif Quareshi v. State of Bihar [1959] SCR 629; State of West Bengal v. Anwar Ali Sarkar {1952] SCR 284; State of AP. v. McDowell & Co. (1996) 3 SCC 709: 1996 (3) SCR 721; Public Services Tribunal Bar Assn v. State of U.P. (2003) 4 SCC 104: 2003 (1) SCR 666; Chhotabhai Jethabhai Patel v. Union of India. 1962 Supp (2) SCR 1.; Kihoto Ho/Johan v. Zachillhu 1992 Supp (2) SCC 651 : 1992 (1) SCR 686; D.K. Trivedi & Sons v. State of Gujarat 1986 Supp SCC 20 : 1986 SCR 479; Mafatlal Industries Ltd. v. Union of India (1997) 5 sec 536 : 1996 (1 O) Suppl. SCR 585; Babula/ Parate v. State of Bombay [1960] (1) SCR 605; Raja Ram Pal v. Lok Sabha (2007.) 3 SCC 184: 2007 (1) SCR 317; AK. Roy v. Union of India (1982) 1 sec 211: 1982 (2) SCR 272; Centre for PIL v. Union of India (2011) 4 SCC 1: 2011 (4) SCR 445; Registrar General, High Court of Madras v. R. Gandhi (2014) 11SCC547: 2014 (4) SCR 77; Indira Nehru Gandhi and Minerva Mills. (2007) 2 SCC 1; Kumar Padma Prasad v. Union of India (1992) 2 SCC 428; Renu v. District Judge (2014) 14 SCC 50; Indian Express Newspapers v. Union of India (1985) 1 SCC 641; SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. State of U.P. v. Raj Narain (1975) 4 SCC 428: 1975 (3) SCR 333; Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd. (1988) 4 sec 592: 1988 (3) Suppl. SCR 212; West U.P. Sugar Mills Assn. v. State of U.P. (2002) 2 SCC 645: 2002 (1) SCR 897; B.N. Tewari v. Union of India AIR 1965 SC 1430: 1965 SCR 421; Firm A. T.B. Mehtab Majid & Co. v. State of Madras AIR 1963 SC 928 : 1963 Suppl. SCR 435; Indian Express Newspapers (Born) (P) Ltd. v. Union of India (1985) 1 SCC 641: 1985 (2) SCR 287; State of TN. v. K. Shyam Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094 - referred to. United Mine Workers of America 325 US 897 (1945); Hanrahan v. Hampton 446 US 1301 (1980); Al-Jehad Trust v. Federation of Pakistan PLO 1996 SC 324; Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg Aktiengesel/schaft [1975] AC 591; The State v. T Makwanyane 1995 (3) SA 391 (CC); Attorney General for N. S. W. v. The Perpetual Trustee Co. Ltd. 85 CLR 237; The Queen v. Beauregard. [1986] 2 SCR 56; Marbury v. Madison: 5 U.S. (1 Cranch) 137; Re: Powers, Privileges and Immunities of State Legislatures [1965] 1 SCR 413; The Pocket Veto case 279 U.S. 655, 689 (1929); Compare Missouri Pac. Ry. Co. v. Kansas 248 U.S. 276; Myers v. United States 272 U.S. 52; State v. South Norwalk 77 Conn. 257; Youngstown Sheet & Tube Co. v. Sawyer343 U.S. 579, 635 (1952); Anderson v. Gorrie [1895] 1 Q.B. 668; McC (A Minor), Re [1985] A.C. 528; Lochner v. New York 198 US 45; Ferguson v. Skrupa 372 US 726; Middleton v. Texas Power and Light Co. 249 US 152, 157; Abrams v. United States 250 · US 616 (1919); The Queen v. Beauregard [1986] 77 A B c D E F G H 78 A B c D E. F G H SUPREME COURT REPORTS [2015] 13 S.C.R. h, 801 2 SCR 56; Attorney General v. Times Newspapers Ltd. 1973 3 All ER 54 - referred to. Sapru Committee Report, 1945, Chapter V, Paragraphs 259, 261 and 268, https:// a rch i ve .o rg / s t ream / saprucommittee035520mbp/saprucommittee 035520 mbp djvu.txt; B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II & Volume IV; Indian Constitution - Cornerstone of a Nation by Granville Austin at page 126, footnote 39; .bttl2if pa rliamentofi ndia. nic. in/ls/debates.htm; Lecture on Judicial Independence, Lord h and 121•1 Report of the Law Phillips; 141 .!:ill.J2.;J/ India; Commission www.tnsja.tn.nic.in/article/Judicial%20 Independence %20JSVJ.pdf; Granville Austin: Working a Democratic Constitution page131; I memohc.pdf; http://doj.qov.in/sites/default/ files/memosc.pdf; Article titled "Merit" in the Appointment of Judges' by By Professor M.P. Singh, (1999) 8 SCC (Jour) 1; Supreme But Not Infallible, Essays in Honour of the Supreme Court of India page 48, 53; A Grammar of Politics (Works of Harold J. Laski), 297; Willoughby on the Constitution of the United States, page 64; "Learning and Science", speech at Harvard Law School Association (June 25, 1895); Speeches by Oliver Wendell Holmes (1896). p. 67-68; Judicial Independence and the Rule of Law by Jonathan K. Van Patten, Volume2 Benchmark page 117, 129 (1986) ; Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection S'ystems, 10 WM & MARY BILL RTS J. 7, n.9 (2001 ); Judicial Independence, Transitional Justice and the Rule of Law by David · http:UdoLqov.in/sites/ default/files SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346; The Frontline, Volume 25 Issue 20 · September 27, 2008 to October 10, 2008; btta;1I www.judiciary.senate.gov/imo/media/doc/ kennedy testimony 02 14 07.pdf; Report entitled 'Judicial Independence: Law and Practice of Appointments to the European http:// Court of Human Rights', www.interights.org/documenV142/index.html: The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region as amended at Manila on 28th August, 1997; 3rd lecture on 'Judicial Appointments' delivered on 4th December, 2012 of the 54th series of Hamlyn Lectures titled 'Aspects of Law Reform - An Insider's Perspective'; Appointing Australian Judges: A New Model by Simon Evans and John Williams, [2008] Sydney Law Review Volume 30 page 295; hlli!~// sydney.edu.au{law/slr/slr30 2/Evans.pdf; http://www.sabar.co.za/I aw-jou rn a I s/2010/ december/201 O-december-vol023-no3-pp43- 48.pdf; http://www.lawsociety.orq.bw/news/ Position%20Paper%20on%20Appointment%2 Oof'/o20Judges%20Final%2014%20june%202012%2 O'Final' .pdf; Carly Van Orman, Introduction to the Symposium: The Judicial Process Appointments Process, 10 Wm. & Mary Bill Rts. J. 1 (2001 ), http://scholarship.law.wm.edu/ wmborj/vol10/iss1/2; 'The Appointment and Removal of Judges' by Sir Anthony Mason AC · KBE, formerly Chief Justice of Australia; .!J1!nJ1 www. j udcom. nsw~gov.a u/pu bl ications/ education-monographs-1 /monograph1 I fbmason.htm; Shimon Shetreet, Judges on Trial (North-Holland Publishing Company, Amsterdam, (1976), p 46; Akkas, Sarkar Ali (2004) 79 A B c D E F G H 80 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S. C.R. 16: "Appointment of Judges: A Key Issue of Judicial Independence," Bond Law Review: lss. 2, Article 8; b.!iQJJ Vol. epublications.bond.edu.au/blr/vol16/iss2/8 - referred to. In the order of Kurian. J.: S. Parthasarathi v. State of A.P (1974) 3 SCC 459: 1974 (1) SCR 697 - referred to. R v. Sussex Justices Ex parte Mc-earthy (1923) All ER Rep. 233; Public Utilities Commission of District of Columbia et al. v. Pollak et al. 343 U.S. 451 (1952); The President of the Republic of South Africa etc. v. South African Rugby Football Union etc.1999 (4) SA 147- referred to. In the judgment of Kurian. J.: His Holiness Bharati Sripadagalvaru v. State of Kera/a and another (1973) 4 sec 225 : 1973 (O) Suppl. scR 1; Samsher Singh v. State of Punjab and another (1974) 2 SCC 831 :1975 (1) SCR 814-referred to. State v. Arizona Independent Redistricting Commission Manu/USSC/0060/2015- referred to. Kesavananda In the judgment of Goel. J.: Special Reference No.1 of 1998 (1998) 7 SCC 739 : 1998 (2) Suppl. SCR 400; SCAORA v. Union of India (1993) 4 SCC 441: 1993 (2) Suppl. SCR 659; Property Owners'Association v. State of Maharashtra (1996) 4 SCC 49 : 1996 (2) Suppl. SCR 230; Kesavananda Bharti v. State of Kera/a 1973 (4) SCC 225 : 1973 (0) Suppl. SCR 1; Indira Nehru Gandhi v. Raj Narain (1975) Supp. SCC 1 : 1976 SCR 347; Minerva Mills Ltd. vs. Union of India (1980) 3 SCC 625 : 1981 (1) SCR 206; L. Chandra Kumar v. Union of India, SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. "(1997) 3 sec 261 : 1997 (2) scR 1186; 1.R. Coelho vs. State of Tamil Nadu (2007) 2 SCC 1: 2006 (10) Suppl. SCR 197; M. Nagaraj v. Union of India (2006) 8 sec 212 : 2001 (9) SCR 259; S.P Gupta v. Union of India 1981 Supp. SCC 87 : 1982 SCR 365; Subhash Sharma v. Union of India 1991 Supp (1) SCC 574: 1990 (2) Suppl. SCR 433; Union of India v. Sankalchand Himatlal Sheth 1977 (4) sec 193 : 1978 (1) scR 423; Shamsher Singh v. State of Punjab 197 4 (2) SCC 831: 1975 (1) SCR 814: Centre for Public Interest Litigation v. UOI (2012) 3 SCC 1: 2012 (3) SCR 147; ManoharLal Sharma v. UOI (2014) 2 SCC 532; S.R. Bommai v. UO/ (1994) 3 SCC 1 : 1994 (2) SCR 644; Rameshwar Prasad v. UOI (2006) 2 sec 1 : 2006 (1) SCR 562; M.C. Mehta v. Kamal Nath (1997) 1SCC388: 1996 (10) Suppl. SCR 12; Kihoto Hol/ohan v. Zachilfhu (1992) Supp. (2) 651 : 1992 (1) SCR 686; Sahara India Real Estate Corpn. Ltd. v. SEB/ (2012) 10 SC 603: 2012 (12) SCR 256; Chandra MoulishwarPrasad v. Patna High Court 1969 (3) SCC 56 : 1970 (2) SCR 666; Manoj Narula v. Union of India 2014 (9) SCC 1 : 2014 (9) SCR 965; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 sec 283 : 1970 (1) SCR 388; Bhim Singh Ji vs. Union of India (19B1) 1 SCC 166; Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1 : 2008 (4) SCR 1; Mafat Lal Industries Ltd. vs. Union of India (1997) 5 SCC 536 : . 1996 (10) Suppl. SCR 585; lnderpreet Singh Kah/on v. State of Punjab (2006) 11 SCC 356 : 2006 (1) Suppl. SCR 772: Maneka Gandhi v. UOI (1978) 1 sec 248 : 1978 (2) SCR 621; v. G. Row v. State of Madras (1952) SCR 597; Madhav Rao Jivaji Rao Scindia v. U0/ 1971 (1) SCC 85 : 1971 (3) SCR 9; Rustom Cavasjee Cooper v. Union of 81 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. India (1970) 1 SCC 248; Bennett Coleman & Co. Ltd. vs. Union of India 1972 (2) SCC 788: 1973 (2) SCR 757; S.R. Bommai v. UOI (1994) 3 sec 1 : 1994 (2) SCR 644; P. Sambamurthy v. State of A.P (1994) 3 sec 1 : 1994 (2) SCR 644; Amrik Singh Lyalpuri v. UOI (2011) 6 SCC 535: 2011 (5) SCR 560; Union of India v. Madras Bar Asson. (2010) 11 SCC 1 : 2010 (6) SCR 857; Madras Bar Asson. v. UOI (2014) 10 SCC 1: Special Reference No.1(1965)1 SCC 413; Lily Thomas v. Union of India 2013 (7) SCC 653 : 2013 (10) SCR 1130; Chief Election Commissioner v. Jan Chaukidar 2013 (7) SCC 507 - referred to. Seervai, 41 h Edition, Constitutional Law of India; h and 121•1 Report of the Law Commission; 141 Report dated 26.9.2001 as included in Vol. II of the Report of the NCRWC, 2002, Paras 9.6 and 9. 7 - referred to. · Case Law Reference In the judgment of Khehar, J.: £Thfl, Reff!.rfl,nCfl. ordf:.C.I 1982 SCR 365 1993 (2) Suppl. SCR 659 1998 (2) Suppl. SCR 400 1990 (2) Suppl. SCR 433 1978 (1) SCR 423 2002 (3) Suppl. SCR 587 2002 (3) Suppl. SCR 366 2001 (1) Suppl. SCR 621 1992 (2) Suppl. SCR 454 1973 (0) Suppl. SCR 1 1975 (1) SCR 814 (2014) 9 sec 1 2010 (6) SCR 218 referred to Para 2 referred to Para 2 referred to Para2 referred to Para 11 referred to Para 16(iii) referred to Para 26 referred to Para 26 referred to Para 26 referred to Para 26 referred to Para 26 referred to Para 26 referred to Para 26 referred to Para 33 82 A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD . ASSOCIATION v. U.0.1. . 2007 (7) SCR 705 2011 (4) SCR 224 2010 (4) SCR 743 1991 (2) Suppl. SCR 497 2006 (4) Suppl. SCR 243 (1955) 6 SCR 603 1975 (1) SCR 1 1989 (3) SCR 316 2002 (3) SCR 100 2011(4) SCR19 2004 (1) SCR 564 1989 (1) Suppl. SCR 692 (1992) 4 sec 97 (1953) SCR 1069 (1965) 2 SCR 908 (1961) 2 SCR 828 1980 (1) SCR 769 1992 (3) Suppl. SCR 103 1999 (2) Suppl. SCR 473 (The Qrr!.,er Qn m!l_rit§.l 1981 (1) SCR 206 1992(1) SCR 686 (2014) 10 sec 1 2006 (7) Suppl. SCR 336 1971 (3) SCR 461 2010 (6) SCR 857 (2015) 4 SCALE 1 (1952) SCR 597 1967 SCR 762 1971 (3) SCR 9 2012 (3) SCR 147 (2014) 2 sec 532 1990 (3) SCR 441 referred to Para 33 referred to Para 36 referred to Para 38 referred to Para 45 referred to Para 47 referred to Para 49 referred to Para 49 referred to Para 49 referred to Para 49 referred to Para 51 referred to Para 51 referred to Para 51 referred to Para 51 referred to Para 52 referred to Para 52 referred to Para 58 referred to Para 58 referred to Para 58 referred to Para 100 referred to Para 5 referred to Para 5 referred to Para 11. referred to Para 15 referred to Para 26 referred to Para 37 referred to Para 40 referred to Para 43 referred to Para 44 referred to Para 45 referred to Para 46 referred to Para 46 referred to Para 47 83 A B c D E F G H 84 : SUPREME COURT REPORTS [2015) 13 S.C.R. A D 1996 (9) Suppl. SCR 479 (1979) 1 sec 380 2014 (6) SCR 873 AIR 1993 SC 1873 1982 (2) SCR 272 B 1950 SCR 869 1959 SCR £19 1975 (2) SCR 774 2008 (3) SCR 330 1959 SCR 629 c 1952 SCR 284 1976 SCR 347 1981 (2) SCR 1 1989 (3) SCR 19 referred to Para 47 referred to Para 47 referred to Para 54 referred to· Para 58 referred to Para 71 referred to Para 71 referred to Para 71 referred to Para 71 referred to Para 72 referred to Para 72 referred to Para 78 referred to Para 78 referred to Para 81 referred to Para 81 referred to Para 99 (1961) 3 SCR 707 referred to Para 99 1976 (3) SCR 1 referred to Para 99 1987 (1) SCR 1054 (2005) 5 sec 363 referred to Para 99 referred to 1961 (1) SCR 96 ·Para 102 referred to Para 105 1993 (1) SCR 891 referred to Para 107 1996 (2) Suppl. SCR 230 (2001) 4 sec 455 referred to Para 107 (2013) 1 sec 5?2 referred to Para 107 AIR 1955 SC 352 held inapplicable Para 108 1963 Suppl. SCR 435 held inapplicable Para 108 1965 SCR 421 held inapplicable Para 108 G 1969 (3) SCR 40 held inapplicable Para 108 (1971) 3 sec 53 held inapplicable . Para 108 1975 (1) SC_R 429 held inapplicable Para 108 referred to Para 108 1977 (1) SCR 1002 1975 (2) SCR 612 referred to Para 108 F E H . SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. referred to Para 108 referred to Para 108 • referred to Para 108 referred to Para 108 referred to Para 121 referred to Para 121 referred to Para 122 referred to Para 130 referred to Para 138 referred to Para 138 referred to Para 215 referred to Para 215 referred to Para 215 referred to Para 216 referred to Para 217 referred to Para 218 referred to Para 218 2000 (1) SCR 518 2010 (15) SCR 854 2011 (5) SCR 1019 2011 (11) SCR 1094 1969 (3) SCR 447 1971 (2) SCR 446 1995 (2) Suppl. SCR 106 2007 (1) SCR 706 (2013) 1 sec 507 2013 (10) SCR 1130 1978 (2) SCR 1 2006 (5) Suppl. SCR 1 2008 (4) SCR 1 2003 (1) SCR 666 2012 (4) SCR 118 2000 (2) SCR 299 2015 (3) SCR 107 held inapplicable Para 250(vii) 1985 (2) SCR 287 1988 SCR 1034 held inapplicable Para 250(viii) 1996 (3) Suppl. SCR 98 held inapplicable Para 250(ix) Para 250 (xi) 2002 (1) SCR 897 2006 (2) SCR 304 Para 250(xi) In the Qrder of Chelameswar, J.: (1993) 4 sec 441 referred to (2011) 8 sec 380 referred to In the judgment of Chelameswar, J,: 1973 (0) Suppl. SCR 1 referred to referred to 1982 SCR 365 1997 (2) SCR 1186 referred to 1993 (2) Suppl. SCR 659 referred to 1978 (1) SCR 423 referred to Para 11 Para 14 Para 28 Para 39 Para 40 referred to referred to Para 2 Para 25 85 A B c D E F G H 86 SUPREME COURT REPORTS [2015113S.C.R. c D (2001) 2 sec 1 B 2008 (17) SCR 791 referred to A 1970 (2) SCR 666 referred to 1975 (1) SCR 814 1990 (2) Suppl. SCR 433 referred to 1998 (2) Suppl. SCR 400 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to 2011 (10) SCR 1064 (2011) 8 sec 474 1997 (2) SCR 1186 (1980) 3 sec 625 (1981) 2 sec 362 (1975) Supp sec 1 (1994) 3 sec 1 (2006) 8 sec 212 AIR 1976 SC 1207 AIR 1967SC1 AIR 1967 SC 295 In the jyggm!ilw Qf LQkyr, J,: referred to 1996 SC 324 1993 (2) Suppl. SCR 659 referred to referred to 1982 SCR 365 1990 (2) Suppl. SCR 433 referred to F 1998 (2) Suppl. SCR 400 referred to referred to referred to referred to referred to referred to referred to referred to referred to (1977) 4 sec 1993 (1971) 1sec411 [1965] 2 SCR 53 G 1971 (3) SCR 483 [1955] 2 SCR 225 1973 (0) Suppl. SCR 1 1976 SCR 347 H 1981 (1) SCR 206 E Para 42 Para42 Para 45 Para 56 Para 59 Para 59 Para 59 Para 64 Para 72 Para 73 Para 73 Para 79 Para 80 Para 81 Para 103 Para 106 Para 111 Para 7 Para 51 Para 55 Para 55 Para 103 Para 105 Para 139 Para 142 Para 142 Para 195 Para 196 Para 197 Para 200 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 2007 (1) SCR 706 referred to 2010 (6) SCR 218 referred to (2014) 12 sec 696 referred to 2006 (2) SCR 740 referred to referred to 1950 SCR 88 referred to 1952 SCR 1112 referred to (1967) 2 SCR 762 (1972) 2 SCR 331 referred to 1992 (2) Suppl. SCR 454 referred to 2001 (1) Suppl. SCR 621 referred to 2014 (9) SCR 965 referred to 2002 (3) Suppl. SCR 587 referred to 1955 SCR 603 referred to (1953) 4 SCR 1069 referred to 1961 SCR 828 referred to 1965 SCR 908 referred to referred to (1960) 1 SCR 249 referred to (1963) Supp 1 SCR 871 1975 (1)· SCR 1 referred to 1967 SCR 399 referred to 1980 (1) SCR 769 referred to .1989 (3) SCR 316 referred to 1992 (3) Suppl. SCR 103 referred to 1989 (2) SCR 320 referred to referred to 2002 (3) SCR 100 (1975) 1sec485 referred to 1985 (2) SCR 914 referred to 1985 (2) Suppl. SCR 949 referred to [1986] 2 SCR 56 referred to 1993 (1) SCR 891 referred to [1965] 1SCR413 referred to Para 202 Para 203 Para 204 Para 204 Para 208 Para 213 Para 214 Para 220 Para 228 Para 229 Para 229 Para 230 Para 243 Para 243 Para 249 Para 250 Para 250 Para 250 Para 251 Para 251 Para 252 Para 253 Para 256 Para 256 Para 257 Para 257 Para 263 Para 263 Para 263 Para 264 Para 270 87 A B c D E F G H 88 SUPREME COURT REPORTS [2015] 13 S.C.R. A B D (1991) 4 sec 699 referred to referred to 1994 (2) SCR 375 1992 (1) ·Suppl. SCR 53 referred to referred to 2010 (6) SCR 857 referred to 1978 (1) SCR 1 1978 (2) SCR 1 referred to 1995 (6) Suppl. SCR 17 referred to 2008 (4) SCR 1 referred to (2014) 10 sec 1 referred to c 1981 (1.) SCR 206 , referred to referred to 1983 (1) SCR 1000 2006 (7) Suppl. SCR 336 referred to (1981) 1 sec 166 referred to [1950] SCR 869 referred to [1959] SCR 279 referred to 1982 (1) SCR 947 referred to 1970 (1) SCR 388 referred to E 1996 (6) Suppl. SCR 839 referred to 1994 (1)-Suppl. SCR 639 referred to 1991 (2) Suppl. SCR 497 referred to 1996 (2) SCR 23 referred to [1950] 1 SCR 88 referred to [1967] 1SCR15 referred to 2008 (1) SCR 986 referred to [1959] SCR 629 referred to [1952] SCR 284 referred to [1986] 2 SCR 56 referred to 1996 (3) SCR 721 referred to 2003 (1) SCR 666 referred to 1962 Supp (2) SCR 1 referred to referred to H 1992 (1) SCR 686 G F Para 297 Para 298 Para 299 Para 300 Para 361 Para 386 Para 387 Para 388 Para 389 Para 397 Para 398 Para 399 Para 401 Para 406 Para 407 Para 409 Para 412 Para 414 Para 415 Para416 Para 417 Para 421 Para 423 Para 432 Para 439 Para 443 Para 449 Para 453 Para 454 Para 455 Para 456 . SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. referred to 1986 SCR 479 1996(10) Suppl. SCR 585 referred to 1960 (1) SCR 605 referred to referred to 2007 (1) SCR 317 referred to 1982 (2) SCR 272 2011 (4) SCR 445 referred to referred to 2014 (4) SCR 77 referred to 1992 (2) SCR 109 referred to 2014 (2) SCR 537 1985 (2) SCR 287 referred to 1975 (3) SCR 333 referred to 1988 (3) Suppl. SCR 212 referred to 2002 (1) SCR 897 referred to referred to 1965 SCR 421 referred to 1963 Suppl. SCR 435 referred to 1985 (2) SCR 287 2011 (11) SCR 1094 referred to In th~ Qrd~r of Kurian, J.: 1974 (1) SCR 697 In the j!,Ji;!gm~nt Qf K!Jrian, J.: 1973 (0) Suppl. SCR 1 1975 (1) SCR 814 In the judgment of Goel, J.: 1998 (2) Suppl. SCR 400 referred to 1993 (2) Suppl. SCR 659 referred to 1996 (2) Suppl. SCR 230 referred to 1973 (0) Suppl. SCR 1 referred to 1976 SCR 347 referred to 1981 (1) SCR 206 referred to 1997 (2) SCR 1186 referred to 2006 (10) Suppl. SCR 197 referred to referred to referred to referred to · 89 A B c D E F Para 458 Para 459 Para 461 Para 462 Para 497 Para 500 Para 502 Para 544 Para 551 Para 552 Para 553 Para 554 Para 558 Para 558 Para 558 Para 558 Para 560 Para8 Para 1 Para 2 Para 3.4 Para 3.4 Para 10 Para 15 Para 15.4 Para 15.5 Para 15.6 Para 15.7 H G 90 SUPREME COURT REPORTS [2015] 13S.C.R. B A 2007 (9) SCR 259 referred to 1982 SCR 365 referred to 1990 (2) Suppl. SCR 433 referred to 1978 (1JSCR 423 referred to 1975 (1) SCR 814 referred to 2012 (3) SCR 147 referred to (2014) 2 sec 532 referred to 1994 (2) SCR 644 referred to 2006 (1) SCR 562 referred to c 1996 (10) Suppl. SCR 12 referred to referred to referred to referred to referred to referred to referred to referred to . · 1992 (1) SCR 686 2012 (12) SCR 256 1970 (2) SCR 666 D 1970 (1) SCR 388 2014 (9) SCR 965 (1981) 1sec166 2008 (4) SCR 1 F E 1996 (10) Suppl.SCR 585 referred to 2006 (1) Suppl. SCR 772 referred to 1978 (2) SCR 621 referred to (1952) SCR 597 referred to 1971 (3) SCR 9 referred to (1970) 1 sec 248 referred to 1973 (2) SCR 757 referred to 1994 ( 2) SCR 644 referred to 2011 (5) SCR 560 referred to G 2010 (6) SCR 857 referred to (2014) 10 sec 1 referred to (1965) 1 sec 413 referred to 2013 (10) SCR 1130 referred to referred to H 2013 (7) sec 507 Para 15.8 Para 16.4 Para 16.5 Para 17 Para 17.2 Para 18 Para 18 Para 18 Para 18 Para 18 Para 18 Para 18.1 Para 18.5 Para 18.9 Para 18.10 Para19.1 Para19.1 Para 19.3 Para 19.3 Para 19.7 Para 19.7 Para 19.7 Para 19.7 Para 19.7 Para 19.14 Para 19.14 Para 19.14 Para 19.14 Para 19.14 Para 20.4 Para 20.4 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. 91 CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) A No.13of2015. Under Article 32 of the Constitution of India. WITH W. P. (C) Nos. 23, 70, 83, 108, 124, 14, 18, 24, 209, B 309, 310, 323 and 341of2015 and T. P. (C) Nos. 391 and 971 of 2015. Ranjit Kumar, SG, Mukul Rohatgi, AG, P. S. Narasimha, ASG, Fali S. Nari man, Prof. Bhim Singh, Anil B. Divan, R. K. c. P. Shankar Das, K. N. Bhat, V. Mohana, Ram Jethmalani, K. K. Venugopal,T. R. Andhyarujina, Ajit Sinha, Ravindra Shrivastava, Dr. Rajeev Dhawan, Sr. Advs., S. S. Shamshery,. lrshad Ahmad, Gaurav Bhatia, C. D. Singh, Saurabh Ajay Gupta, Suryanarayana Singh, AAGs, Subhash C. Kasyap, D Pranav Vyas (For Surya Kant), Santosh Paul, Joseph Aristotle S., Arvind Gupta, M. B. Elakkumanan, Malay Swapnil, Priya Aristotle, Savita Singh, Prashant Bhushan, Prashant Kumar, Syed Rehan, Ranvir Singh, Anindita Pujari, Jitendra Mahapatra, A. C. Philip, Rabin Majumder, Suman, V. N. E Subramaniam, Subhasish Bhowmick, S. K. Sinha, Joydeep Mukherjee (For Rabin Majumder), Sriram Parakkat, Vishnu Shankar Jain (For Ankur S. Kulkarni), Prachi Bajpai, D. L Chidananda, Madhvi Divan, Abhinav Mukherji, Binu Tamta, Dr. Arghya Sengupta, Ranjeeta Rohatgi, Devanshi Singh, Diksha F Rai, Ninad Laud, Ajay Sharma, Ritwik Sharma, Samit Khosla, Nikhil Rohatgi, Gurmehar S. Sistani (For B. V. Balaram Das), Gautam Narayan; Devashish Bharuka, Sandeep Singh, Amit Sharma (For Ms. Ruchi Kohli), H. K. Naik (For Gautam Takuldar), Ankur Talwar, Rohit Bhat, Prerna Priyadarshini, G Suhasini Sen, Ankit Kr. (For Mishra Saurabh), Nishant Kanteshwarkar, Arpit Rai, Anip Sachthey, Saakaar Sardana, K. Enatoli Serrya, Edward Belho, Amit Kumar Singh, Abhisth Kumar, Abhishek Kumar Singh, Vijay Pratap Yadav, Som Raj H 92 SUPREME COURT REPORT'-_ [2015] 13 S.C.R. A Choudhury, Anitha·Shenoy, V. N. Raghupathy, Tapesh Kumar Singh, Mohd. Waquas, Anurag Singh, Aswarya K. Sinha, Rachana Srivastava, Shashi Juneja, A. P. Mayee, Ramesh Babu M. R., Swati Setia, Sapam Biswajit Meitei, Z. H. Issac Haiding, Ashok Kumar Singh, Hemantika Wahi, Vinakshi B Kadan, Jagjit Singh Chhabra (For Kuldip Singh), Sibo Sankar Mishra, Pragati Neekhra, Indra Pratap Singh, Prakash Kumar Singh, Arun Monga, Kudrat S3ndho (For Tushar Bakshi), M. Yogesh Kanna, Jayant Patel, Krishna Sarma, Avijit Roy, Navnit Kumar, Barnali Das, Deepika (For M/s. Corporate Law C Group), Guntur Prabhakar, Prerna Singh, Nupur Singhal, San jay Visen, Anil Kumar Chopra, Ashok Kumar Thakur, Im ran Khan Burni, Advs., for the appearing parties. Mathews J. Nedumpara, Manohar Lal Sharma, R. K. o Kapoor, Bishwajit Bhattacharyya, Rajiv Daiya, P. M. Duraiswamy (Petioner-in-person). Ashish Dixit (Respondent-in-person) The following Judgments and Orders of the Court were delivered: E F G JUDGMENT JAGDISH SINGH KHEHAR, J. Index* Si.No Contents Par·agrapl:s Pages , '8 ' - 1 . 101 9 1 - 10 - 19 · - . 1 - 15 16 - 169 16 - 19 19 - 61 20 - 53 61 - 115 1

2. I II. The Recusal Order The Reference Order The Challenae The Background tt1e Challenge tt1e respondents for tt1e review of the Second and Third Judges cases. Ill. Motion *Ed. note: The pages mentioned in the index above giving the scheme of the judgment denotes the page number of the original judgment. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] IV. Objection petitioners, Motion for review 54 - 59 115 - 124 V. The Consideration VI. Conclusion 60 - 100 101 124-168 168 - 169

3. I. II. The Order on Merits Preface Petitioners' Contentions, l'v1e.rits 1 - 258 1 - 4 5 - 66 170-439 170-171 171 - 252 Ill Respondents' 67 - 132 253 -325 Response on Merits. IV. The Debate and the 133- 245 326 - 419 Deliberation v The effect of striking 246- 253 419 - 436 down the impugned constitutional amendment VI. Conclusions VII. Acknowledament 254- 256 257 436-438 438 -439 93 A B c D THE RECUSAL ORDER E

1. In this Court one gets used to writing common orders, for orders are written either on behalf of the Bench, or on behalf of the Court. Mostly, dissents are written in the first person. Even though, this is not an order in the nature of a dissent, yet it needs to be written in the first person. While endorsing the F opinion expressed by J. Chelameswar, J., adjudicating upon the prayer for my recusal, from hearing the matters in hand, reasons for my continuation on the Bench, also need to be expressed by me. Not for advocating any principle of law, but for laying down certain principles of conduct. G

2. This order is in the nature of a prelude - a precursor, to the determination of the main controversy. It has been necessitated, for deciding an objection, about the present composition of the Bench. As already noted above, J. H 94 SUPREME COURT REPORTS [2015] 13S.C.R. A Chelameswar, J. has rendered the decision on the objection. The events which followed the order of J. Chelameswar, J., are also of some significance. In my considered view, they too need to be narrated, for only then, the entire matter can be considered to have been fully expressed, as it ought to be. I B also need to record reasons, why my continuation on the reconstituted Bench, was the only course open to me. And therefore, my side of its understanding, dealing with the perception, of the other side of the Bench. c

3(i) A three-Judge Bench was originally constituted for hearing these matters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ .. At thatjuncture,Anil R. Dave, J. was a part of the 1+2 collegium, as also, the 1 +4 collegium. The above combination heard the D matter, on its first listing on 11.3.2015. Notice returnable for 17 .3.2015 was issued on the first date of hearing. Simultaneously, hearing in Y. Krishnan v. Union of India and others, Writ Petition (MD) No.69 of 2015, pending before the High Court of Madras (at its Madurai Bench), wherein the same issues were being considered as the ones raised in the bunch . of cases in hand, was stayed till further orders. E (ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, Senior Advocate, in Supreme CourtAdvocates-on- F Record Association v. Union of India (Writ Petition (C) No.13 of2015), Mr.Anil B. Divan, Senior Advocate, in Bar Association of India v. Union of India (Writ Petition (C) No;108 of 2015), Mr. Prashant Bhushan, Advocate, in Centre for Public Interest Litigation v. Union of India (Writ Petition (C) No.83 of 2015) G and Mr. Santosh Paul, Advocate, in Change India v. Union of India (Writ Petition (C) No.70 of 2015), representing the petitioners were heard. Mr. Mukul Rohatgi, Attorney General for India, advanced submissions in response. The matter was shown as part-heard, and posted for further hearing on H 18.3.2015. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 95 (iii) The proceedings recorded by this Court on 18.3.2015 A reveal, that Mr. Santosh Paul, (in Writ Petition (C) No.70 of 2015) was heard again on 18.3.2015, whereupon, Mr. Mukul Rohatgi and Mr. Ranjit Kumar, Solicitor General of India, also made their submissions. Thereafter, Mr. DushyantA. Dave, Senior Advocate - and the President of Supreme Court Bar B Association, addressed the Bench, as an intervener. Whereafter, the Court rose for the day. On 18.3.2015, the matter was adjourned for hearing to the following day, i.e., for 19.3.2015. c (iv) The order passed on 19.3.2015 reveals, that submissions were advanced on that date, by Mr. DushyantA. Dave, Mr. Mukul Rohatgi, Mr. T.R. Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S. Nariman was still addressing the Bench, the Court rose for the • D day, by recording inter a/ia, "The matters remained Part heard." Further hearing in the cases, was deferred to 24.3.2015. (v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. Divan, were again heard. Additionally, Mr. Mukul Rohatgi E concluded his submissions. On the conclusion of hearing, judgment was reserved. On 24.3.2015, a separate order was also passed in Writ Petition (C) No.124 of 2015 (Mathews J. Nedumpara v. Supreme Court of India, through Secretary F General and others). It read as under: 'The application filed by Mr. Mathews J. Nedumpara to argue in person before the Court is rejected. The name of Mr. Robin Mazumdar, AOR, who was earlier appearing for him, be shown in the Cause List.'' (vi) On 7.4.2015, the following order came to be passed G by the three-Judge Bench presided by Anil R. Dave, J.: "1. In this group of petitions, validity of the Constitution (Ninety-Nimth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (hereinafter H 96 A B c D . E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. referred to as 'the Act') has been challenged. The challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of the Constitution of India has been altered and therefore, they should be set aside. 2. We have heard the learned counsel appearing for the parties and the parties appearing in-person at length. 3. It has been mainly submitted for the petitioners that all these petitions should be referred to a Bench of Five Judges as per the provisions of Article 145(3) of the Constitution of India for the reason that substantial questions of law with regard to interpretation of the Constitution of India are involved in these petitions. It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act should not be brought into force and the present system with regard to appointment of Judges should be continued. 4. Sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into force, cause of action cannot be said to have arisen. In the circumstances, according to the learned counsel, the petitions should be rejected. 5. The learned counsel as well as parties in-person have relied upon several judgments to substantiate their cases. 6. Looking at the facts of the case we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore we direct the Registry to place all the matters of this group before Hon'ble the Chief Justice of India so that they can be placed before a lamer Bench for its consideration. 7. As we are not deciding the cases on merits, we do not think it appropriate to discuss the submissions made by the learned counsel and the parties in-person. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 97

8. It would be open to the petitioners to make a prayer for A interim relief before th.e larger bench as we do not think it appropriate to grant any interim relief at this stage."

4. During the hearing of the cases, Anil R. Dave, J. did not participate in any collegium proceedings.

5. Based on the order passed by the three-Judge Bench on 7.4.2015, Hon'ble the Chief Justice of India, constituted a five-Judge Bench, comprising of Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph andAdarsh Kumar Goel, JJ. B

6. On 13.4.2015 the Constitution (Ninety-ninth C Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were notified in the Gazette of India (Extraordinary). Both the above enactments, were brought into force with effect from 13.4.2015. Accordingly, D on 13.4.2015 Anil R. Dave, J. became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India, under the mandate of Article 124A(1 )(b).

7. When the matter came up for hearing for the first time, E before the five-Judge Bench on 15.4.2015, it passed the following order: "List the matters before a Bench of which one of us (Anil R. Dave, J.) is not a member." It is, therefore, that Hon'ble the Chief Justice of India, reconstituted the Bench with myself, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ., to hear this group of cases. F

8. When the reconstituted Bench commenced hearing G on 21.4.2015, Mr. Fali S. Nariman made a prayer for my recusal from the Bench, which was seconded by Mr. Mathews J. Nedumpara (petitioner-in-person in Writ Petition (C) No.124 of 2015), the latter advanced submissions, even though he H 98 SUPREME COURT REPORTS [2015) 13S.C.R. A had been barred from doing so, by an earlier order dated 24.3.2015 (extracted above). For me, to preside over the Bench seemed to be imprudent, when some of the stakeholders desired otherwise. Strong views were however expressed by quite a few learned counsel, who opposed the B prayer. It was submitted, that a prayer for recusal had earlier been made, with reference to Anil R. Dave, J. It was pointed out, that the above prayer had resulted in his having exercised the option to step aside (- on 15.4.2015). Some learned counsel went to the extent of asserting, that the recusal of Anil C · R. Dave, J. was not only unfair, but was also motivated. It was also suggested, that the Bench should be reconstituted, by requesting Anil R. Dave, J. to preside over the Bench. The above sequence of facts reveals, that the recusal by Anil R. D Dave, J. was not at his own, but in deference to a similar prayer made to him. Logically, if he had heard these cases when he was the presiding Judge of the three-Judge Bench, he would have heard it, when the Bench strength was increased, wherein, he was still the presiding Judge. E F G H 9(i) Mr. Fali S. Nariman strongly refuted the impression sought to be created, that he had ever required Anil R. Dave, J. to.recuse. In order to support his assertion, he pointed out, that he had made the following request in writing on 15.4.2015: "The provisions of the Constitution (Ninety-Ninth Amendment) Act, 2014 and of the National Judicial Appointments Commission Act, 2014 have been brought into force from April 13, 2015. As a consequence, the Presiding Judge on this Bench, the Hon'ble Mr. Justice Anil R. Dave, has now become (not out of choice but by force of Statute) a member ex officio of the National Judicial Appointments Commission, whose constitutional validity has been challenged. It is respectfully submitted that it would be appropriate if it is declared at the outset- by an order of this Hon'ble SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 99 Court- that the Presiding Judge on this Bench will take A no part whatever in the proceedings of the National Judicial Appointments Commission." Learned senior counsel pointed out, that he had merely requested the then presiding Judge (Anil R. Dave, J.) not to B take any part in the proceedings of the National Judicial Appointments Commission, during the hearing of these matters. He asserted, that he had _never askedAnil R. Dave, J. not to hear the matters pending before the Bench. (ii) The submission made in writing by Mr. Mathews J. C Nedumpara for the recusal of Anil R. Dave, J. was in the following words: " ..... VI. Though Hon'ble Shri Justice Anil R. Dave, Who heads the Three-Judge Bench in the instant case, is a Judge revered and respected by the legal fraternity and D the public at large, a Judge of the highest integrity, ability and impartiality, still the doctrine of nemo iudex in sua causa or nemo debet esse judex in propria causa - no one can be judge in his own cause -would require His Lordship to E recuse himself even at this stage since in the eye of the 120 billion ordinary citizens of this country, the instant case is all about a law whereunder the exclusive power of appointment invested in the Judges case is taken away and is invested in the fair body which could lead to F displeasure of the Judges and, therefore, the Supreme Court itself deciding a case involving the power of appointment of Judges of the Supreme Court will not evince public credibility. The question then arises is as to who could decide it. The doctrine of necessity leaves no other G option then the Supreme Court itself deciding the question. But in that case, it could be by Judges who are not part of the collegium as of today or, if an NJAC is to be constituted today, could be a member thereof. With utmost respect, Hon'ble Shri Justice Dave is a member of the collegium; H 100 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c D E F G H His Lordship will be a member of the NJAC if it is constituted today. Therefore, there is a manifest conflict of interest. VII. Referendum. In Australia, a Constitutional Amendment was brought in, limiting the retirement age of Judges to 70 years. Instead of the Judges deciding the correctness of the said decision, the validity of the amendment was left to be decided by a referendum, and 80% of the population supported the amendment. Therefore, the only body who could decide whether the NJAC as envisaged is acceptable or not is the people of this country upon a referendum. VIII. The judgment in Judges-2, which made the rewriting of the Constitution, is void ab initio. The said case was decided without notice to the pubic at large. O,nly the views of the government and Advocates on record and a few others were heard. In the instant case, the public at large ought to be afforded an opportunity to be heard; at least the major political parties, and the case should be referred to Constitutional Bench. The constitutionality of the Acts ought to be decided, brushing aside the feeble, nay, apologetical plea of the learned Attorney General that the Acts have been brought into force and their validity cannot be challenged, and failing to come forward and state in candid terms that the Acts are the will of the people, spoken through their elected representatives and that too without any division, unanimous. The plea of the Advocates on Record Association that the notification bringing into force the said Acts be stayed be rejected forthwith; so too its demand that the collegium system, which has ceased to be in existence, be allowed to be continued and appointments to the august office of Judges of High Courts and Supreme Gourt on its recommendation, for to do so would mean that Judges of the High Courts who are currently Chief Justices because they were appointed at a young age in preference over others will be appointed as SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.] 101 Judges of the Supreme Court and if that is allowed to A happen, it may lead to a situation where the Supreme Court tomorrow will literally be packed with sons and sons-in- law of former Judges. There are at least three Chief Justices of High Courts who are sons of former Judges of the Supreme Court. The Petitioner is no privy to any B confidential information, not even gossips. Still he believes that if the implementation of the NJAC is stayed, three sons of former Judges of the Supreme Court could be appointed as Judges of the Supreme Court. The Petitioner has absolutely nothing personal against any of those Judges; C the issue is not at all about any individual. The Petitioner readily conc.edes, and it is a pleasure to do so, that few of them are highly competent and richly deserving to be appointed. IX. Equality before law and equal protection of law in the matter of public employment. The office of the Judge of the High Court and Supreme Court, though high constitutional office, is still in the realm of public employment, to which every person eligible ought to be E given an opportunity to occupy, he being selected on a transparent, just, fair and non-arbitrary system. The Petitioner reiterates that he could be least deserving to be appointed when considered along with others of more meritorious than him, but the fact that since he satisfies all F the basic eligibility criteria prescribed under Articles 124A, as amended, and 217, he is entitled to seek a declaration at the hands of this Hon'ble Court that an open selection be made by advertisement of vacancies or such other appropriate mechanism. X. Judicial review versus democracy. Judicial review is only to prevent unjust laws to be enacted and the rights of the minorities, whatever colour they could be in terms of religion, race, views they hold, by a legislation which enjoys brutal majority and an of the executive which is tyrannical. H D G 102 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c It is no way intended to substitute the voice of the people by the voice of the high judiciary. XI. Article 124A, as amended, is deficient only in one respect. The collegium contemplated thereunder is still fully loaded in favour of the high judiciary. Three out of the six members are Judges. In that sense it is failing to meet to be just and democratic. But the Parliament has in its wisdom enacted so and if there is a complaint, the forum is to generate public opinion and seek greater democracy. The Petitioner is currently not interested in that; he is happy with the Acts as enacted and the principal relief which he seeks in the instant petition is the immediate coming into force of the said Acts by appropriate notification and a mandamus to that effect at the hands of this Hon'ble Court." D

10. When my recusal from the reconstituted Bench was sought on 21.4.2015, I had expressed unequivocally, that I had no desire to hear the matters. Yet, keeping in view the reasons expressed in writing by Mr. Fali S. Nariman, with reference to Anil R. Dave, J. I had disclosed in open Court, that I had already E sent a communication to Hon'ble the Chief Justice of India, that I would not participate in the proceedings of the 1 +4 collegium (of which I was, a member), till the disposal of these matters. Yet, the objection was pressed. It needs to be recorded that Anil R. Dave, J. was a member of the 1 +2 collegium, as F well as, the 1 +4 collegium from the day the hearing in these matters commenced. Surprisingly, on that account, his recusal was never sought, and he had continued to hear the matters, when he was so placed (from 11.3.2015 to 7 .4.2015). But for my being a member of the 1 +4 collegium, a prayer had been G made for my recusal.

11. It was, and still is, my personal view, which I do not wish to thrust either on Mr. Fali S. Nariman, or on Mr. Mathews J. Nedumpara, thatAnil R. Dave, J. was amongst the most H suited, to preside over the reconstituted Bench. As noticed SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 103 . above, he was a part of the 1 +2 collegium, as also, the 1 +4 A collegium, under the 'collegium system'; he would continue to discharge the same responsibilities, as an ex officio Member of the National Judicial Appointments Commission, in the 'Commission system', under the constitutional amendment enforced with effect from 13.4.2015. Therefore, irrespective B of the system which would survive the adjudicatory process, Anil R. Dave, J. would participate in the selection, appointment and transfer of Judges of the higher judiciary. He would, therefore, not be affected by the determination of the present controversy, one way or the other. C

12. The prayer for my recusal from the Bench was pressed by Mr. Fali S. Nariman, Senior Advocate, in writing, as under: "8. In the present case the Presiding Judge, (the Hon'ble Mr. Justice J.S. Khehar) by reason of judgments D reported in the Second Judges case Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 sec 441, (reaffirmed by unanimously by a Bench of 9 Judges in the Third Judges case Special Reference No.1 of 1998, Re. (1998 7 SCC 739), is at present a E member of the Collegium of five Hon 'ble Judges which recommends judicial appointments to the Higher Judiciary, which will now come under the ambit of the National Judicial Appointments Commission set up under the aegis of the Constitution (Ninety-ninth F Amendment) Act, 2014 read with National Judicial Appointments Commission Act No.40 of 2014- if valid; but the constitutional validity of these enactments has been directly challenged in these proceedings. G The position of the Presiding Judge on this Bench hearing these cases of constitutional challenge is not consistent with (and apparently conflicts with) his position as a member of the 'collegium'; and is likely to H 104 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H be seen as such; always bearing in mind that if the Constitution Amendment and the statute pertaining thereto are held constitutionally valid and are upheld, the present presiding Judge would no longer be part of the Collegium-the Collegium it must be acknowledged exercises significant constitutional power.

9. In other words would it be inappropriate for the Hon'ble Presiding Judge to continue to sit on a Bench that adjudicates whether the Collegium system, (as it is in place for the past two decades and is stated (in the writ petitions) to be a part of the basic structure of the Constitution), should continue or not continue. The impression in peoples mind would be that it is inappropriate if not unfair if a sitting member of a Collegium sits in judgment over a scheme that seeks to replace it. This is apart from a consideration as to whether or not the judgment is (or is not) ultimately declared invalid or void: whether in the first instance or by Review or in a Curative Petition." The above prayer for my recusal was supported by Mr. Mathews J. Nedumpara, petitioner-in-person, in writing, as under: " ..... Hon'ble Shri Justice J.S. Khehar, the presiding Judge, a Judge whom the Petitioner holds in high esteem and respect, a Judge known for his uprightness, impartiality and erudition, the Petitioner is afraid to say, ought not to preside over the Constitution Bench deciding the constitutional validity or otherwise of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 ("the said Acts", for short). His Lordship will be a member of the collegium if this Hon'ble Court were to hold that the said Acts are unconstitutional or to stay the operation of the said Acts, for, if the operation of the Acts is stayed, it is SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 105 likely to be construed that the collegium system continues A to be in force by virtue of such stay order. Though Hon'ble Shri Justice J.S. Khehar is not a member of the National Judicial Appointments Commission, for, if the NJAC is to be constituted today, it will be consisting of the Hon'ble Chief Justice of India and two seniormost Judges of this B Hon'ble Court. With the retirement of Hon'ble Shri H.L. Dattu, Chief Justice of India, His Lordship Hon'ble Shri Justice J.S. Khehar will become a member of the collegium. Therefore, an ordinary man, nay, an informed onlooker, an expression found acceptance at the hands of C this Hon'ble Court on the question of judicial recusal, will consider that justice would not have been done if a Bench of th.is Hon'ble Court headed by Hon'ble Shri Justice J.S. Khehar were to hear the above case. For a not so informed D onlooker, the layman, the aam aadmi, this Hon'ble Court hearing the Writ Petitions challenging the aforesaid Acts is nothing but a fox being on the jury at a goose's trial. The Petitioner believes that the Noble heart of his Lordships Justice Khehar could unwittingly be influenced by the E nonconscious, subconscious, unconscious bias, his Lordships having been placed himself in a position of conflict of interest.

3. This Hon'ble Court itself hearing the case involving the power of appointment of Judges between the collegium F and the Government, nay, the executive, will not evince any public confidence, except the designated senior lawyers who seem to be supporting the collegium system. The collegium system does not have any confidence in the ordinary lawyers who are often unfairly treated nor the G ordinary litigants, the Daridra Narayanas, to borrow an expression from legendary Justice Krishna Iyer, who considered that the higher judiciary, and the Supreme Court in particular, is beyond the reach of the ordinary man. An H 106 SUPREME COURT REPORTS [2015] 13 S.C.R. A B ordinary lawyer finds it difficult to get even an entry into the Supreme Court premises. This is the stark reality, though many prefer to pretend not to notice it. Therefore, the Petitioner with utmost respect, while literally worshipping the majesty of this Hon'ble Court, so too the Hon'ble presiding Judge of this Hon'ble Court, in all humility, with an apology, if the Petitioner has erred in making this plea, seeks recusal by Hon'ble Shri Justice J.S. Khehar from hearing the above case." c

13. As a Judge presiding over the reconstituted Bench, I found myself in an awkward predicament. I had no personal desire to participate in the hearing of these matters. I was a part of the Bench, because of my nomination to it, by Hon'ble the Chief Justice of India. My recusal from the Bench at the o asking of Mr. Fali S. Nariman, whom I hold in great esteem, did not need a second thought. It is not as if the prayer made by Mr. Mathews J. Nedumpara, was inconsequential.

14. But then, this was the second occasion when proceedings in a matter would have been deferred, just E because, Hon'ble the Chief Justice of India, in the first instance, had nominated Anil R. Dave, J. on the Bench, and thereafter, had substituted him by nominating me to the Bench. It was therefore felt, that reasons ought to be recorded, after hearing learned counsel, at least for the guidance of Hon'ble the Chief Justice of India, so that His Lordship may not make another nomination to the Bench, which may be similarly objected to. This, coupled with the submissions advanced by Mr. Mukul Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, that G parameters should be laid down, led to a hearing, on the issue F ofrecusal.

15. On the basis of the submissions advanced by the learned counsel, the Bench examined the prayer, whether I should remain on the reconstituted Bench, despite my being a H member of the 1 +4 collegium. The Bench, unanimously SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 107 concluded, that there was no conflict of interest, and no other A justifiable reason in law, for me to recuse from the hearing of these matters. On 22.4.2015, the Bench passed the following short order, which was pronounced by J. Chelameswar, J.: "A preliminary objection, whether Justice Jagdish Singh B Khehar should preside over this Bench, by virtue of his being the fourth senior most Judge of this Court, also happens to be a member of the collegium, was raised by the petitioners. Elaborate submissions were made by the learned counsel for the petitioners and the respondents. C After hearing all the learned counsel, we are of the unanimous opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar. to recuse himself from hearing the matter. Reasons will follow."

16. After the order was pronounced, I disclosed to my D colleagues on the.Bench, that I was still undecided whether I should remain on the Bench, for I was toying with the idea of recusal, because a prayer to that effect, had been made in the face of the Court. · My colleagues on the Bench, would have nothing of it. They were unequivocal in their protestation. E

17. Despite the factual position noticed above, I wish to record, that it is not their persuasion or exhortation, which made me take a final call on the matter. The decision to remain a member of the reconstituted Bench was mine, and mine alone. F The choice that I made, was not of the heart, but that of the head. The choice was made by posing two questions to myself. Firstly, whether a Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted? Secondly, whether I would stand true to the oath G of my office, if I recused from hearing the matters?

18. The reason that was pointed out against me, for seeking my recusal was, that I was a part of the 1 +4 collegium. But that, should have been a disqualification for Anil R. Dave, J. H 108 SUPREME COURT REPORTS [2015] 13 S.C.R. A as well. When he commenced. hearing of the matters, and till 7.4.2015, he suffered the same alleged disqualification. Yet, the objection raised against me, was not raised against him. When confronted, Mr. Fali S. Nariman vociferously contested, that he had not sought the recusal of Anil R. Dave, J. He B supported his assertion with proof. One wonders, why did he not seek the recusal of Anil R. Dave, J.? There is no doubt about the fact, that I have been a member of the 1 +4 collegium, and it is likely that I would also shortly become a Member of the NJAC, if the present challenge raised by the petitioners C was not to succeed. I would therefore remain a part of the selection procedure, irrespective of the process which prevails. That however is the position with reference to four of us (on the instant five-Judge Bench). Besides me, my colleagues on the Bench - J. Chelameswar, Madan B. Lokur and Kurian D Joseph, JJ. would in due course be a part of the collegium (if the writ-petitioners before this Court were to succeed), or alternatively, would be a part of the NJAC (if the writ-petitioners were to fail). In such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues. But, that was not the manner in which the issue has been canvassed. In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong F practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that wo·uld give the impression, of the Judge G had been scared out of the case, just by the force of the ·objection.A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with H absolute earnestness and sincerity. It is my duty to abide by E SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 109 my oath of office, to uphold the Constitution and the laws. My A decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court. THE REFERENCE ORQER I. THE CHALLENGE: B

1. The question which has arisen for consideration, in the present set of cases, pertains to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 20~4 (hereinafter referred to as, the Constitution (99thAmendment) C Act), as also, that of the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act).

2. During the course of hearing on the merits of the controversy, which pertains to the selection and appointment D of Judges to the higher judiciary (i.e., Chief Justices and Judges of the High Courts and the Supreme Court), and the transfer of Chief Justices and Judges of one High Court to. another, it emerged that learned counsel for the respondents, were inter alia relying on the judgment rendered in S.P. Gupta E v. Union of lndia 1 , (hereinafter referred to as, the First Judges case); whereas, the learned counsel for the petitioners were inter alia relying on thejudgment in Supreme CourtAdvocates on-Record Association v. Union of lndia2 (hereinafter referred to as, the Second Judges case), and the judgment in Re: Special Reference No.1 of 19983 , (hereinafter referred to as, the Third Judges case). · F

3. Per se, the stance adopted by learned counsel for the respondents in placing reliance on the judgment in the First G Judges case, was not open to them. This, for the simple reason, that the judgment rendered in the First Judges case, had been 1 1981 (Supp) sec 87 2 (1993) 4 sec 441 ' (1998) 1 sec 739 H 110 SUPREME COURT REPORTS [2015] 13S.C.R. A overruled by a larger Bench, in the Second Judges case. And furthermore, the exposition of law declared in the Second Judges case, was reaffirmed by the Third Judges case. 8

4. Visualizing, that the position adopted by the respondents, was not legally permissible, theAttomey General, the Solicitor General, and other learned counsel representing the respondents, adopted the only course open to them, namely, to seek reconsideration of the decisions rendered by this Court in the Second and Third Judges cases. For the above objective c it was asserted, that various vital aspects of the matter, had not been brought to the notice of this Court, when the controversy raised in the Second Judges case was canvassed. It was contended that, had the controversy raised in the Second Judges case, been examined in the right perspective, this b Court would not have recorded the conclusions expressed therein, by the majority. It was submitted, thattill the respondents were not permitted to air their submissions, with reference to the unacceptability of the judgments rendered in the Second and Third Judges cases, it would not be in the fitness of E matters, for this Court to dispose of the present controversy, by placing reliance on the said judgments.

5. Keeping in mind the importance and the sensitivity of the controversy being debated, as also, the vehemence with F which learned counsel representing the respondents, pressed for a re-examination of the judgments rendered by this Court, in the Second and Third Judges cases, we permitted them, to detail the basis of their assertions.

6. Before embarking on the issue, namely, whether the judgments rendered by this Court in the Second and Third Judges cases, needed to be revisited, we propose first of all, to determine whether or not it would be justified for us, in the peculiar facts and circumstances of this case, keeping in view the technical parameters laid down by this Court, to undertake G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 111 the task. In case, we conclude negatively, and hold that the A prayer seeking a review of the two judgments was not justified, that would render a quietus to the matter. However, even if the proposition canvassed at the behest of the respondents is not accepted, we would still examine the submi.ssions canvassed at their behest, as in a matter of such extreme importance and B sensitivity, it may not be proper to reject a prayer for review, on a mere technicality. We shall then endeavour to determine, whether the submissions canvassed at the hands of the respondents, demonstrate clear and compelling reasons, for a review of the conclusions recorded in the Second and Third C Judges cases. We shall also venture to examine, whether the respondents have been able to prima facie show, that the earlier judgments could be seen as manifestly incorrect. For such preliminary adjudication, we are satisfied, that the present D bench-strength satisfies the postulated requirement, expressed in the proviso under Article 145(3).

7. Consequent upon the above examination, if the judgments rendered in the Second and Third Judges cases, are shown to prima facie require a re-look, we would then delve E on the merits of the main controversy, without permitting the petitioners to place "reliance on either of the aforesaid two judgments.

8. In case, we do not accept the submissions advanced F at the hands of the petitioners on merits, with reference to the main controversy, that too in a sense would conclude the matter, as the earlier regime governed by the Second and Third Judges cases, would become a historical event, of the past, as the new scheme contemplated under the impugned G Constitution (99thAmendment)Act, along with the NJACAct, would replace the earlier dispensation. In the above eventuality, the question of re-examination of the Second and Third Judges cases would be only academic, and therefore uncalled for. H 112 SUPREME COURT REPORTS [2015] 13 S.C.R. A B

9. However, if we accept the submissions advanced at the hands of the learned counsel for the petitioners, resulting in the revival of the earlier process, and simultaneously conclude in favour of the respondents, that the Second and Third Judges cases need a re-look, we would be obliged to refer this matter to a nine-Judge Bench (or even, to a larger Bench), for re-examining the judgments rendered in the Second and Third Judges cases. II. THE BACKGROUND TO THE CHALLENGE: C

10. Judges to the Supreme Court of India and High Courts ·of States, are appointed under Articles 124 and 217 respectively. Additional Judges and acting Judges for High Courts are appointed under Articles 224 and 224A. The transfer of High Court Judges and Chief Justices, of one High D Court to another, is made under Article 222. For the controversy in hand, it is essential to extract the original Articles 124 and 217, hereunder: "124. Establishment and constitution of Supreme Court. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. • (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that- E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 113 (a) a Judge may, by writing under his hand addressed A to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4 ). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. 8 (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of lndiaand- c (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; D (c) is, in the opinion of the President, a distinguished jurist. Explanation /.-In this clause "High Court" means a High Court which exercises, or which at any time before the E commencement of this Constitution exercised, jurisdiction in any part of the territory of India. Explanation 1/.-ln computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held F judicial office not inferior to that of a district Judge after he became an advocate shall be included. (4) A Judge of the Supreme Court shall not be removed from his office except by an order .of the President G passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such Ir! 114 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4 ). (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India." "217. Appointment and conditions of the office of a Judge of a High Court.-(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years: Provided that- ( a) a Judge may, by writing under his hand addressed to the Pres)dent, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause ( 4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 115 Supreme Court or by his being transferred by the A President to any other High Court within the territory of India. (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and- (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession; Explanation.- For the purposes of this clause - B c (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, D during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (aa) in computing the period during which a person has E been an advocate of a High Court, there shall be · included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate; F (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area whic:h G was.comprised before the fifteenth day of August, 194 7, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be. H 116 SUPREME COURT REPORTS [2015] 13S.C.R. A (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final." C

11. The true effect and intent of the provisions of the B Constitution, and all other legislative enactments made by the Parliament, and the State legislatures, are understood in the manner they are interpreted and declared by the Supreme Court, under Article 141. The manner in which Articles 124 and 217 were interpreted by this Court, emerges principally from three-Constitution Bench judgments of this Court, which are now under pointed consideration. The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981. The correctness of the First Judges case was doubted by a three-Judge Bench in Subhash D Sharma v. Union of lndia4, which opined that the majority view, in the First Judges case, should be considered by a larger Bench. The Chief Justice of India constituted a nine-Judge Bench, to examine two questions: Firstly, whether the opinion of the Chief Justice of India in regard to the appointment of E Judges to the Supreme Court and to the High Courts, as well as, transfer of Chief Justices and Judges of High Courts, was entitled to primacy? And secondly, whether the fixation of the judge-strength in High Courts, was justiciable? By a majority of 7:2, a nine-Judge Bench of this Court, in the Second Judges F case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993. Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his power under Article 143, referred nine G questions to the Supreme Court, for its opinion. A nine-Judge Bench answered the reference unanimously, on 28.10.1998.

12. After the judgment of this Court in the Second Judges case was rendered in 1993, and the advisory opinion of this • 1991 Supp (1) sec 574 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 117 Court was tendered to the President of India in 1998, the term A "consultation" in Articles 124(2) and 217(1 ), relating to appointment (as well as, transfer) of Judges of the higher judiciary, commenced to be interpreted as vesting primacy in the matter, with the judiciary. This according to the respondents, had resulted in the term "consultation" being understood as B "concurrence" (in matters governed by Articles 124, 217 and 222). The Union of India, then framed a Memorandum of Procedure on 30.6.1999, for the appointment of Judges and Chief Justices to the High Courts and the Supreme Court, in consonance with the above two judgments. And appointments C came to be made thereafter, in consonance with the Memorandum of Procedure.

13. As per the position expressed before us, a feeling came to be entertained, that a Commission for selection and o appointment, as also for transfer, of Judges of-the higher judiciary should be constituted, which would replace the prevailing procedure, for appointment of Judges and Chief Justices of the High Courts and the Supreme Court of India, contemplated under Articles 124(f) and 217(1 ). It was felt, E that the proposed Commission should be broad based. In that, the Commission should comprise of members of the judiciary, the executive and eminent/important persons from public life. In the above manner, it was proposed to introduce transparency in the selection process. F

14. To achieve the purported objective, Articles 124 and 217 were inter alia amended, and Articles 124A, 1248 and 124C were inserted in the Constitution, through the Constitution (99th Amendment) Act, by following the procedure G contemplated under Article 368(2), more particularly, the proviso thereunder. The amendment, received the assent of the President on 31.12.2014. It was however given effect to, with effect from 13.4.2015 (consequent upon its notification in the Gazette of India (Extraordinary) Part 11, Section 1 ). H 118 SUPREME COURT REPORTS [2015]13S.C.R. /'\ Simultaneously therewith, the Parliament enacted the NJAC Act, which also received the assent of the President on 31.12.2014. The same was also brought into force, with effect from 13.4.2015 (by its notification in the Gazette of India (Extraordinary) Part 11, Section 1 ). The above constitutional B amendment and the legislative enactment, are subject matter of challenge through a bunch of petitions, which are collectively being heard by us. In order to effectively understand the true purport of the challenge raised by the petitioners, and the nuances of the legal and constitutional issues involved, it is imperative to have a bird's eye view of the First Judges case, upon which reliance has been placed by the learned counsel for the respondents, in their attempt to seek a review of the Second and Third Judges cases. C D The First Judges case -1981 Supp SCC 87.

15. The Union Law Ministeraddressed a letter dated 18.3.1981 to the Governor of Punjab and to Chief Ministers of all other States. The addressees were inter a/ia informed, that" ... one third of the Judges of High Court, should as far as E possible be from outside t~e State in which the High Court is situated ... ". Through the above letter, the addressees were requested to " ... (a) obtain from all additional Judges working in the High Courts ... their consent to be appointed as F permanent Judges in any other High Court in the country ... " The above noted letter required, that the concerned appointees " ... be required to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and (b) obtain from persons who have G already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts ... ". The Union Law Minister, in the above letter clarified, that furnishing of their consent or indication of their H preference, would not imply any commitment, at the behest of SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 119 the Government, to accommodate them in accordance with A their preferences. In response, quite a few additional Judges, gave their consent to be appointed outside their parent State. (i) Iqbal Chagla (and the other petitioners) felt, that the letter dated 18.3.1981 was a direct attack on the "independence of B the judiciary", and an uninhibited assault on a vital/basic feature of the Constitution. A series of Advocates' Associations in Bombay passed resolutions, condemning the letter dated 18.3.1981, as being subversive of "judicial independence". They demanded the withdrawal of the letter. Since that was c not done, a writ petition was filed by the above Associations in the Bombay High Court, challenging the letter dated 18.3.1981. An interim order was passed by the High Court, restraining the Union Law Minister and the Government from implementing the letter dated 18.3.1981. A Letters Patent Appeal preferred D against the above interim order, came to be dismissed by a Division Bench of the High Court. The above interim order, was assailed before this Court. While the matter was pending · before this Court, the Union Law Minister and the Government of India, filed a transfer petition under Article 139A. The transfer E petition was allowed, and the writ petition filed in the Bombay High Court, was transferred to the Supreme Court. (ii) A second petition was filed by V.M. Tarkunde, in the High Court of Delhi. It raised a challenge to the constitutional validity F of the letter dated 18.3.1981. One additional ground was raised with reference to the three additional Judges of the Delhi High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad, JJ., whose term was expiring on 6.3.1981. Ratherthan being appointed for a further term of two years, their appointment G was extended for three months, from 7 .3.1981. These short term appointments were assailed, as being unjustified under Article 224, besides being subversive of the "independence of the judiciary". This writ petition was also transferred for hearing to the Supreme Court. So far as the circular letter H 120 SUPREME COURT REPORTS [2015] 13 S.C.R. A dated 18.3.1981 is concerned, the Supreme Court, on an oral prayer made by the petitioner, directed that any additional Judge who did not wish to respond to the circular letter may not do so, and that, he would neither be refused extension nor permanent appointment, on the ground that he had not sent a reply to the letter dated 18.3.1981. Thereafter, the appointment of S.B. Wad, J., was continued, as an additional Jud!;Je for a period of one year from 7.6.1981, but O.N. Vohra and S.N. Kumar, JJ., were not continued beyond 7.6.1981. B C (iii & iv). A third writ petition, was filed by J.L. Kalra and others, who were practicing Advocates, in the Delhi High Court. And a fourth writ petition was filed by S.P. Gupta, a practicing Advocate, of the Allahabad High Court. The third and fourth writ petitions were for substantially the same reliefs, as the D earlier two petitions. (v) A fifth writ petition, was filed by Lily Thomas. She challenged. a transfer order dated 19.1.1981, whereby the Chief Justice of the High Court of Madras was transferr;ed as the Chief Justice of the High Court of Kerala. The above order had been E passed by the President, under Article 222(1 ), after consultation with the Chief Justice of India. Likewise, the transfer of the Chief Justice of the High Court of Patna to the Madras High Court was challenged by asserting, that the power of transfer F under Article 222(1 )was limited to Judges of the High Courts, and did not extend to Chief Justices. Alternatively, it was contended, that transfers could only be made with the consent of the concerned Judge, and only in public interest, and after full and effective consultation with the Chief Justice of India. G (vi & vii) A sixth writ petition was filed by A. Rajappa, principally challenging the order dated 19.1.1981, whereby some Chief Justices had been transferred. One additional submission was raised in this petition, namely, that the transfer of the Chief Justices had been made without the prior consultation of the H Governors of the concerned States, and further, that the said SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 121 transfers we:ire not in public interest, and therefore, violated A the procedural requirements contained in Article 217(1 ). The seventh writ petition was filed by P. Subramanian, on the same grounds, as the petition filed by A. Rajappa. 8 (viii) An eighth writ petition was filed by D.N. Pandey and Thakur Ramapati Sinha, practicing Advocates, of the Patna High Court. In this petition, Justice K.B.N. Singh, the Chief Justice of the Patna High Court was impleaded as respondent no.3. On a prayer made by respondent no.3, he was transposed as petitioner no.3. As petitioner no.3, Justice K.B.N. Singh filed c a detailed affidavit asserting, that his transfer had been made as a matter of punishment, and further, that it had been made on irrelevant and on insufficient grounds, and not in public interest. And further that, it was not preceded by a full and effective consultation with the Chief Justice of India, D It is therefore apparent, that the above mentioned petitions related to two different sets of cases. Firstly, the issue pertaining to the_ initial appointment of Judges, and the extension of the term of appointment of additional Judges, on the expiry of their original term. And secondly, the transfer of E Judges and Chief Justices from one High Court to another .

16. The opinions recorded in the First Judges case, insofar as they are relevant to the present controversy, are being summarized herein: F • P. N. Bhagwati. J. (as he then was): (i) On the subject of independence of the judiciary, it was opined, that" ... Th~ concept of independence of judiciary is a noble concept which inspires the constitutional scheme and G constitutes the foundatiqn on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the entire Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the H 122 SUPREME COURT REPORTS [2015] 13 S.C.R. B A State within the limits of the law and thereby making the rule of law meaningful and effective ... The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive, and therefore, it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution. " ... It was felt, that the concept of "independence of the judiciary" was not limited only to the independence from executive pressure or influence, but it was C a much wider concept, which took within its sweep, independence from many other pressures and prejudices. It had many dimensions, namely, fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. It was held, that the principle of "independence of the judiciary" had to be kept in mind, while interpreting the provisions of the Constitution (paragraph 27). 0 (ii). On the subject of appointment of High Court Judges, it . F E was opined, that just like Supreme Court Judges, who are appointed under Article 124 by the President (which in effect and substance mewitthe Central Government), likewise, the power of appointment of High Court Judges under Article 217, was to be exercised by the Central Government. Such power, it was held, was exercisable only" ... after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court ... " It was concluded, that it was clear on a plain reading of the above two Articles, that the Chief Justice of India, the Chief Justice of the High Court, and such G other Judges of the High Court and of the Supreme Court (as the Central Government may deem necessary to consult), were constitutional functionaries, having a consultative role, and the power of appointments rested solely and exclusively in the H decision of the Central Government. It was pointed out, that SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 123 the above power was not an unfettered power, in the sense, A that the Central Government could not act arbitrarily, without consulting the constitutional functionaries specified in the two Articles. The Central Government was to act, only after consulting the constitutional functionaries, and that, the consultation had to be full and effective (paragraph 29). B (iii). On the question of the meaning of the term "consultation" expressed in Article 124(2) and Article 217(1 ), it was held, that this question was no longer res integra, as the issue stood concluded by the decision of the Supreme Court in Union of c India v. Sankalchand Himatlal Sheth5 , wherein its meaning was determined with reference to Article 222(1 ). But, since it was the· common ground between the parties, that the term "consultation" used in Article 222(1) had the same meaning, which it had in Articles 124(2) and 217(1 ), it was held that, D " ... therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information E he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system ... " It was further concluded, that the above observation in the Sankalchand Himatlal Sheth F case5 would apply with equal force to determine the scope and meaning of the term "consultation" within the meaning of Articles 124(2) and 217(1). Each of the constitutional functionaries, required to be consulted under these two Articles, must have for his consideration, full and identical facts bearing G upon appointment or non-appointment of the person concerned, and the opinion of each of them taken on identical material, must be considered by the Central Government, • (1977) 4 sec 193 H 124 SUPREME COURT REPORTS [2015] 13S.C.R. A before it takes a decision, whether or not to appoint the person concerned as a Judge. It was open to the Central Government to take its own decision, in regard to the appointment or non appointment of a Judge to a High Court or the Supreme Court, after taking into account and giving due weight to, the opinions B expressed. It was also observed, that the only ground on which such a decision could be assailed was, that the action was based on ma/a tides or irrelevant considerations. In case of a difference of opinion amongst the constitutional functionaries, who were to be consulted, it was felt, that it was forthe Central C Government to decide, whose opinion should be accepted. The contention raised on behalf of the petitioners, that in the consultative process, primacy should be that of the Chief Justice of India, since he was the head of the Indian judiciary D and paterfamilias of the judicial fraternity, was rejected for the reason, that each of the constitutional functionaries was entitled to equal weightage. With reference to appointment of Judges of the Supreme Court, it was held, that the Chief Justice of India was required to be consulted, but the Central Government E was not bound to act in accordance with the opinion of the Chief Justice of India, even though, his opinion was entitled to great weight. It was therefore held, that the ultimate power of appointment, the Central Government (paragraph 30). rested with F (iv). On the issue of appointment of Judges of the Supreme Court, it was concluded, that consultation with the Chief Justice of India was a mandatory requirement. But while making an appointment, consultation could extend to such other Judges of the Supreme Court, and of the High Courts, as the Central In response to the submission, where only the Chief Justice of India was consulted (i.e., when consultation did not extend to other Judges of the Supreme Court, or of the High Courts), whether the opinion tendered by the Chief Justice of India should be treated as G Government may deem necessary. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 125 binding, it was opined, that there was bound to be consultation, A with one or more of the Judges of the Supreme Court and of the High Courts, before exercising the power of appointment conferred under Article 124(2). It was felt, that consultation with the Chief Justice of India alone, with reference to the appointment of Judges to the Supreme Court, was not a very B satisfactory mode of appointment, because wisdom and experience demanded, that no power should rest in a single individual howsoever high and great he may be, and howsoever honest and well-meaning. It was suggested, that it would be more appropriate if a collegium would make the C recommendations to the President, with regard to appointments to the higher judiciary, and the recommending authority should be more broad based. If the collegium was comprised of persons who had knowledge of persons, who D may be fit for appointment to the Bench, and possessed the qualities required for such appointment, it would go a long way towards securing the right kind of Judges, who would be truly independent (paragraph 31 ). (v) It was held, that the appointment of an additional Judge, E must be made by following the procedure postulated in Article 217(1 ). Accordingly, when the term of an additional Judge expired, and he ceased to be a Judge, his reappointment could only be made by once again adopting the procedure set out in Article 217(1 ). The contention, that an additional Judge must F automatically and without any further consideration be appointed as an additional Judge for a further term, or, as a permanent Judge, was rejected (paragraphs 38 to 44). (vi) On the question of validity of the letter of the Union Law G Minister dated 18.3.1981, it was opined, that the same did not violate any legal or constitutional provision. It was felt, that the advance consent sought to be obtained through the letter dated 18.3.1981, from additional Judges or Judges prior to their permanent appointment, would have no meaning, so far H 126 SUPREME COURT REPORTS [2015] 13 S.C.R. A as the Chief Justice of India was concerned, because irrespective of the fact, whether the additional Judge had given his consent or not, the Chief Justice of India would have to consider, whether it would be in public interest to allow the additional Judge to be appointed as a permanent Judge in B another High Court (paragraph 54 ). (vii) After having determined the merits of the individual claim raised by S.N. Kumar, J., (who was discontinued by the Central Government, while he was holding the position of additional c Judge), it was concluded, that it would be proper if the Union of India could find a way, to place the letter dated 7 .5.1981 addressed by the Chief Justice of Delhi High Court to the Law Minister, before the Chief Justice of India, and elicit his opinion with reference to that letter. And thereupon consider, whether o S.N. Kumar, J., should be reappointed as additional Judge. ·. (viii) With reference to K.B.N. Singh, CJ., it was opined that there was a clear abdication by the Central Government of its constitutional functions, and therefore, his transfer from the E Patna High Court to the Madras High Court was held as unconstitutional and void. A.C. Gupta. J.: F arbitrarily. (i). On the subject of the "independence of the judiciary", it was opined, that the same did not mean freedom of Judges to act It only meant, that Judges must be free, while discharging their judicial functions. In order to maintain "independence of the judiciary", it was felt, that Judges had to be protected against interference, direct or indirect. It was G concluded, that the constitutional provisions should not be construed in a manner, that would tend to undermine the concept of "independence of the judiciary" (paragraph 119). (ii) On the questio.n, whether, on the expiry of the term of office of an additional Judge of a High Court, it was permissible to H drop him by not giving him another term, though the volume of SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 127 work, pending in the High Court, required the services of A another Judge? It was opined, that the tenure of an additional Judge, was only dependent on the arrears of work, or the temporary increase in the business of a High Court. And since an additional Judge was not on probation, his performance could not be considerer.I to determine, whether he was fit for B appointment as a permanent Judge. Therefore, it was concluded, that if the volume of work pending in the High Court justified the appointment of an additional Judge, there could be no reason, why the concerned additional Judge should not be appointed for another term. The submission that the two C years' period mentioned in Article 224, depicted the upper limit of the tenure, and that the President was competent to appoint an additional Judge, for any shorter period, was rejected. Since the fitness of a Judge, had been considered at the time of his initial appointment, therefore, while determining whether he D. should be reappointed, under Article 217(1 ), it was opined, that the scope of inquiry was limited, to whether the volume of work pending in the High Court, necessitated his continuation. (iii). Referring to the opinion expressed by the Chief Justice of E the High Court, in connection with S.N. Kumar, J., it was opined, that when allegations were levelled against a Judge with respect to the discharge of his duties, the only reasonable course open, which woul.d not undermine the "independence of the judiciary" was,. to proceed with an inquiry into the F allegations and remove the Judge, if the allegations were found to be true (in accordance with the procedure laid down under Article 124(4) and (5) read with Article 218). It was felt that, dropping an additional Judge, at the end of his initial term of office, on the ground that there were allegations against him, G without properly ascertaining the truth of the allegations, was destructive of the "independence of the judiciary" (paragraph 123). (iv). With reference to the non-continuation of S.N. Kumar, J., an additional Judge of the Delhi High Court, it was observed, H 128 SUPREME COURT REPORTS [2015] 13 S.C.R. A that the letter of the Chief Justice of the Delhi High Court dated 7 .5.1981, addressed to the Law Minister, was not disclosed to the Chief Justice of India. As the relevant material was withheld from the Chief Justice of India, it was concluded, that there was no full and effective "consultation", as contemplated B by Article 217(1 ). And therefore, the decision not to extend the term of office of S.N. Kumar, J., as additional Judge of the Delhi High Court, though the volume of pending work in the High Court required the services of an additional Judge, was c invalid. (v). On the question, whether the opinion of the Chief Justice of India would have primacy, in case of a difference of opinion between the Chief Justice of a High Court and the Chief Justice of India, the view expressed was, that the President should D accept the opinion of the Chief Justice of India, unless such opinion suffered from any obvious infirmity. And that, the President could not act as an umpire, and choose between the two opinions (paragraph 134 ). (vi). Referring to the judgment in the Sankalchand Himatlal E Sheth case 5 , wherein it was concluded, that mass transfers were not contemplated under Article 222(1 ), it was opined, that the President could transfer a Judge from one High Court to another, only after consultation with the Chief Justice of India. F And that, the Chief Justice of India must consider in each case, whether the proposed transferwas in public interest (paragraph 138). G (vii). With referencetothetransferofK.B.N. Singh, CJ., from the Patna High Court to the Madras High Court, it was opined, that even if the above transfer had been made for administrative reasons, and in public interest, it was likely to cause some injury to the transferee, and it would only be fair to consider the possibility of transferring him, where he would face least difficulties, namely, where the language difficulty H would not be acute. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 129 S. Murtaza FazalAli. J.: (i) On the issue, whether the transfer of a High Court Judge under Article 222 required the consent of the Judge proposed to be transferred, it was opined, that a non-consensual transfer, would not amount to punishment, nor would it involve any stigma. It was accordingly concluded, that a transfer made after complying with Article 222, would not mar or erode the "independence of the judiciary" (paragraph 345). A 8 (ii). With reference to appointing Chief Justices of High Courts from outside the State, and for having 1/3rd Judges in every C High Court from outside the State, it was expressed, that Article 222 conferred an express power with the President, to transfer a Judge (which includes, Chief Justice) from one State to another. In determining as to how this power had to be exercised, it was felt, th~t the President undoubtedly D possessed an implied power to lay down the norms, the principles, the conditions and the circumstances, under which the said power was to be exercised. A declaration by the President regarding the nature and terms of the policy (which virtually meant a declaration by the Council of Ministers) was E quite sufficient, and absolutely legal and constitutional (paragraph 410). (iii). On the subject of validity of the letter of the Union Law Minister dated 18. 3.1981, it was held, that the same did not in F any way tarnish the image of Judges, or marthe "independence of the judiciary" (paragraph 433). (iv). On the question of appointment of additional Judges, and the interpretation of Article 217, the opinion expressed by P.N. G Bhagwati and E.S. Venkataramiah, JJ. were adopted (paragraph 434 ). (v). Insofar as the interpretation of Article 224 was concerned, the opinion of P.N. Bhagwati and D.A. Desai, JJ. were accepted, (paragraph 537). And accordingly, their conclusion H 130 SUPREME COURT REPORTS [2015] 13S.C.R. A about the continuation of S.N. Kumar, J., as an additional Judge, after the expiry of his term of appointment, was endorsed. 8 (vi). On analyzing the decision rendered in the Sankalchand Himatlal Sheth case 5 , inter alia, the following necessary concomitants ofan effective consultation between the President and the Chief Justice of India were drawn. That the consultation, must be full and effective, and must precede the actual transfer of the Judge. If consultation with the Chief Justice of India had c not taken place, before transferring a Judge, it was held, that the transfer would be unconstitutional. All relevant data and necessary facts, must be provided to the Chief Justice of India, so that, he could arrive at a proper conclusion. Only afterthe above process was fully complied with, the consultation would o be considered full and effective.-H was felt, thatthe Chief Justice of India owed a duty, both to the President and to the Judge propos.ed to be transferred, to consider every relevant fact, before tendering his opinion to the President. Before giving his opinion the Chief Justice of India, could informally ascertain from the Judge, if there was any personal difficulty,. or any humanitarian ground, on which his transfer should not be made. And only after having done so, the Chief Justice of India, could forward his opinion to the President. Applying the above facets of the consultation process, with respect to the validity of the F order dated 19.1.1981, by which K.B.N. Singh, CJ., was transferred, it was held, that the consultation process contemplated under Article 222, had been breached, rendering the order passed by the President invalid (paragraph 589). E G V.D. Tulzapurkar. J.: (i). Insofar as the question of "independence of the judiciary" is concerned, it was asserted that all the Judges, who had expressed their opinions in the matter, had emphasized, that the framers of the Constitution had taken the utmost pains, to H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 131 secure the "independence of the Judges" of the higher judiciary. A To support the above contention, several provisions of the Constitution were referred to. It was also pointed out, that the Attorn'ey General representing the Union of India, had not dispute the above proposition (paragraph 639). B (ii). With reference to additional Judges recruited under Article 224(1 ), from the fraternity of practicing Advocates, it was pointed out, that an undertaking was taken from them at the time of their initial appointment, that if and when a permanent judgeship of that Court was offered to them, they would not c decline the same. And additionally, the Chief Justice of the Bombay High Court would require them to furnish a further undertaking, that if they decline to accept such permanent judgeship (though offered), or if they resigned from the office of the additional judgeship, they would not practice before the D Bombay High Court, or any court or tribunal subordinate to it. Based on the aforesaid undertakings, the contention advanced was, that a legitimate expectancy, and an enforceable right to continue in office, came to be conferred on the additional Judges recruited from the Bar. It was felt, that it was impossible E to construe Article 224(1 ), as conferring upon the appointing authority, any absolute power or discretion in the matter of appointment of additional Judges to a High Court (paragraphs 622 and 624 ). (iii)All submissions made on behalf of the respondents, that granting extension to an additional Judge, or making him a permanent Judge was akin to a fresh appointment, were rejected. It was concluded, that extension to an additional Judge, or making him permanent, did not require re- G determination of his suitability under Article 217(1) (paragraph 628). F (iv). While dealing with the question of continuation of an additional Judge, in situations where there were facts H 132 SUPREME COURT REPORTS [2015] 13S.C.R. A disclosing suspected misbehaviour and/or reported lack of integrity, the view expressed was, that while considering the question of continuation of a sitting additional Judge, on the expiry of his initial term, the test of suitability contemplated within the consultative process under Article 217(1) should not B be evoked - at least till a proper mechanism, having a legal sanction, was provided for holding an inquiry, against the Judge concerned, with reference to any suspected misbehavior and/ or lack of integrity (paragraph 628). C (v) On the scope of consideration, for continuation as a sitting additional Judge (on the expiry of a Judge's initial term), it was opined, that the consultative process should be confined only to see, whether the preconditions mentioned in Article 224( 1 ) existed or not, or whether, pendency of work justified It was held, that the test of suitability contemplated within the consultative process under Article 217(1 ), could not and should not, be resorted to (paragraph 629). o continuation or not. E (vi). On the question of primacy of the Chief Justice of India, with reference to Article 217(1 ), the view expressed was, that the scheme envisaged therein, by implication and intent, clearly gave primacy to the advice tendered by the Chief Justice of India. It was however sought to be clarified, that giving primacy to the advice of the Chief Justice of India, in the matter of F appointment of Judges of the High Court, should not be construed as a power to veto any proposal. And ~hat, if the advice of the Chief Justice of India, had proceeded on extraneous or non germane considerations, the same would be subject to judicial review, just as the President's final G decision, if he were to disregard the advice of the Chief Justice of India, but for justified and cogent reasons. Interpreting Article 217(1) in the above manner, it was felt, would go a long way in preserving the "independence of the judiciary" (paragraph 632). (vii) With regard to the scope of 'consultation', contemplated H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 133 under Article 222( 1 ), the conclusion(s) drawn by the majority A view, in the Sankalchand Himatlal Sheth case5, were endorsed. (viii). Insofar as, the issue of taking the consent of the concerned Judge, prior to his transfer is concerned, based on the decision rendered in the Sankalchand Himatlal Sheth case5 , it was felt, that transfers could be made without obtaining the consent of the concerned .Judge. And accordingly it was held, that non consensual transfers, were within the purview of Article 222(1) (paragraphs 645 and 646). 8 (ix) With reference to the letter written by the Union Law Minister C dated 18.3.1981, it was asserted, that even a policy transfer, without fixing the requisite mechanism or modality of procedure, would not ensure complete insulation against executive interference. Conversely it was felt, that a selective transfer in an appropriate case, for strictly objective reasons, and in public D interest, could be non-punitive. It was therefore concluded, that each case of transfer, whether based on policy, or for individual reasons, would have to be judged on the facts and circumstances of its own, for deciding, whether it was punitive (paragraph 649). E (x) It was concluded, that by requiring a sitting additional Judge, to give his consent for being appointed to another High Court, virtually amounted to seeking his consent for his transfer from his own High Court to another High Court, falling within the F ambit of Article 222(1 ). Referring to the judgment rendered in the Sankalchand Himatlal Sheth case 5 , it was felt, that the circular letter dated 18.3.1981 was an attempt to circumvent the safeguards and the stringent conditions expressed in the above judgment (paragraph 652). And further, that the circular G letter clearly exuded an odour of executive dominance and arrogance, intended to have coercive effects on the minds of sitting additional Judges, by implying a threat to them, that if they did not furnish their consent to be shifted elsewhere, they would neither be continued nor made permanent. The above H 134 SUPREME COURT REPORTS [2015] 13 S.C.R. A letter, was held to be amounting to, executive interference with the "independence of the judiciary", and thus illegal, unconstitutional and void. Any consent obtained thereunder, was also held to be void (paragraph 654). 8 (xi) It was also concluded that, the advice of the Chief Justice of India. would be robbed of its real efficacy, in the face of such pre-obtained consent, and it would have to be regarded as having been issued malafide and for a collateral purpose, namely, to bypass Article 222(1) and to confront the Chief c Justice of India, with a fait accompli, and as such, the same was liable to be declared as illegal and unconstitutional (paragraph 655) .. (xii) The above circular letter dated 18.3.1981, was also held to be violative of Article 14, since invidious discrimination was D writ large on the face of the circular letter. For this additional reason, the letter of the Union Law Minister dated 18.3.1981, it was felt, was liable to be struck down (paragraphs 659 and 660). E (xiii) On the subject of non-continuation of S.N. Kumar, J., it was held, that it was abundantly clear from the correspondence and notings, that further details and concrete facts and materials relating to his integrity, though specifically asked for by the Chief Justice of India, were not furnished, and the letter F dated 7.5.1981, which contained such details and concrete facts and materials, were kept away from him, leading to the inference, that facts which were taken into consideration by the Union Law Minister and the Chief Justice of Delhi High Court (which provided the basis to the appointing authority, G not to extend the appointment of S.N. Kumar, J.), were not placed before the Chief Justice of India, and therefore, there was neither full nor effective consultation, between the President and the Chief Justice of India, as required by Article. 217(1 ). It was accordingly concluded, that the decision against H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 135 S.N. Kumar, J., stood vitiated by legal ma/a tides, and as such, A was liable to be held void and non est, and his case had to be sent back to the President, for reconsideration and passing appropriate orders, after the requisite consultation was undertaken afresh (paragraphs 664 and 666 to 668). B (xiv) With respect to the validity of the transfer of K.B.N. Singh, CJ., it was felt, that in the absence of any connivance or complicity, since no unfair play was involved in the procedure followed by the Chief Justice of India, it was liable to be concluded, that the impugned transfer had been made in public c interest. and not by way of punishment. The above transfer was accordingly held to be valid (paragraph 680). D.A. Desai. J.: (i) After noticing, that the President under Article 74, acts on D the advice of the Council of Ministers, and that, while acting under Article 217(3), the President performs functions of grave importance. It was felt, that it could not be said that while exercising the power of appointment of Judges to the higher judiciary, the President was performing either judicial or quasi E judicial functions. The function of appointment of Judges was declared as an executive function, and as such, it was held, that Article 74 would come into operation. And therefore concluded, that the President would have to act, on the advice of the Council of Ministers, ·in the matter of appointment of F Judges under Article 217 (paragraph 715). And therefore it came to be held, that the ultimate power of appointment under Article 217, "unquestionably" rested with the President. (ii) It was pointed out, that before exercising the power of G appointment of a Judge (other than the Chief Justice of a High Court), the President was under a constitutional obligation, to consult the three constitutional functionaries, mentioned in Article 217 (paragraphs 718 and 719). And that the aforementioned three constitutional functionaries were at par H 136 SUPREME COURT REPORTS [2015] 13 S.C.R. A with one another. They were coordinate authorities, without any relative l:iierarchy, and as such, the opinion of the Chief Justice of India could not be given primacy on the issue of appointment of Judges of High Courts (paragraphs 724, 726 and 728). B (iii) It was also concluded, that on the expiry of the original term of appointment of an additional Judge under Article 224, the continuation of the concerned Judge, would envisage the re-adoption of the procedure contained in Article 217 c (paragraphs 736 and 745). (iv) It was felt, that there was no gainsaying, that a practice which had been followed for over 25 years, namely, that an additional Judge was always considered for a fresh tenure, if there was no permanent vacancy, and if there was such a D vacancy, he was considered for appointment as a permanent Judge. It was held, that the contention of the Attorney General, that such additional Judge had no priority, preference, weightage or right to be considered, and that, he was on par with any other person, who could be brought from the market, E would amount to disregarding the constitutional scheme, and must be rejected (paragraph 759). It was held, that when a Judge was appointed for a term of two years, as an additional Judge, it was sufficient to contemplate, that his appointment F was not as a permanent Judge. And therefore, if a permanent vacancy arose, the additional Judge could not enforce his appointment against the permanent vacancy (paragraph 762). (v) It was also concluded, that the term of an additional Judge could not be extended for three months or six months, since G such short term appointments, were wholly inconsistent and contrary to the clear intendment of Article 224, and also, unbecoming of the dignity of a High Court Judge (paragraphs 763 and 764 ). H (vi) On the subject of extension of the term of an additional SUPREME COURT ADVOCATES-ON-RECORD . ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 137 Judge, it was felt, that it was not open to the constitutional A functionaries, to sit tight over a proposal, without expressing their opinion on the merits of the proposal, and by sheer inaction, to kill a proposal. It was accordingly opined, that when the term of an additional Judge was about to expire, it was obligatory on the Chief Justice of the High Court, to initiate the B proposal for completing the process of consultation, before the period of initial appointment expired (paragraph 772). (vii) With reference to the non-extension of the tenure of S.N. Kumar, J., it was felt, that when two high constitutional c functionaries, namely, the Chief Justice of the Delhi High Court and the Chief Justice of India, had met with a specific reference to his doubtful integrity, the act of not showing the letter dated 7.5.1981 to the Chief Justice of India, would not detract from the fullness of the consultation, as required by Article 217. D Accordingly, it was held, that there was a full and effective consultation, on all relevant points, including those set out in the letter dated 7 .5.1981. And the claim of the concerned Judge for continuation, was liable to be rejected. It was however suggested, that the Government of India could even now, show E the letter dated 7.5.1981 to the Chief Justice of India, and request him to give his comments. After receiving his comments, the Government of India could decide afresh, whether S.N. Kumar, J., should be re-appointed as an additional Judge of the Delhi High Court. clarified, that the proposed reconsideration, should not be treated as a direction, but a mere suggestion. It was however F (viii) On the question, whether the consent of the concerned Judge should be obtained prior to his transfer under Article G 222(1 ), it was concluded, that the requirement of seeking a prior consent, as a prerequisite for exercising the power of transfer under Article 222(1 ), deserved to be rejected (paragraph 813 ). It was however observed, that the above power of transfer under Article 222(1) could not be exercised H • 138 SUPREME COURT REPORTS [2015] 13 S.C.R. A B in the absence of public interest, merely on the basis of whim, caprice or fancy of the executive, or its desire to bend a Judge to its own way of thinking. Three safeguards, namely, full and effective consultation with the Chief Justice of India, the exercise of power only aimed at public interest, and judicial review - in case the power was exercised contrary to the mandate of law, were suggested to insulate the "independence of the judiciary", against an attempt by the executive to control it (paragraphs 813 to 815). c (ix) It was also concluded, that the transfer of an individual Judge, for something improper in his behavior, or conduct, would certainly cast a slur or attach a stigma, and would leave an indelible mark on his character. Even the High Court to which he was transferred would shun him, and the consumers o of justice would have little or no faith in his judicial integrity. Accordingly it was concluded, that a transfer on account of any complaint or grievance against a Judge, referable to his conduct or behaviour, was impermissible under Article 222(1 ). E (x) On the question of transfer of K.B.N. Singh, CJ., it was felt, that his order of transfer was vitiated for want of effective consultation, and his selective transfer would cast a slur or stigma on him. ·it was felt, that the transfer did not appear to be in public interest. The order of transfer dated 20.12.1980 F was accordingly, considered to be vitiated, and as such, was declared void. R.S. Pathak, J. las he then 'f'as): G (i} With reference to the issue of "independence of the judiciary", it was observed, that while the administration of justice drew its legal sanction from the Constitution, its credibility rested in the faith of the people. Indispensable to such faith, was the "independence of the judiciary". An independent and impartial judiciary, it was felt, gives character and content to the H constitutional milieu (paragraph 874). SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 139 (ii) On the subject of appointment of Judges to High Courts, it A was essential for the President, to consult the Governor of the State, the Chief Justice of India and the Chief Justice of the concerned High Court. It was pointed out, that three distinct constitutional functionaries were involved in the consultative process, and each had a distinct role to play (paragraph 887). B In a case where the Chief Justice of the High Court and the Chief Justice of India, were agreed on a recommendation, it was within reason to hold. that the President would ordinarily accept the recommendation, unless there were strong and cogent reasons, for not doing so (paragraph 889). however pointed out, that the President was not always obliged to agree, with a recommendation, wherein the Chief Justice of the High Court and the Chief Justice of India, had concurred. In this behalf, it was observed, that even though, during the D Constituent Assembly debates, a proposal was made, that the appointment of a Judge should require the "concurrence" of the Chief Justice of India, and the above proposal was endorsed by the Law Commission of India, yet the proposal had fallen through, and as such, the Constitution as it presently E exists, contemplated "consultation" and not "concurrence" (paragraph 890). It was C (iii) On the question, as to whether the Chief Justice of India had primacy, over the recommendation made by the Chief Justice of the High Court, it was felt, that the Chief Justice of F India did not sit in appellate judgment, over the advice tendered by the Chief Justice of the High Court. It was pointed out, that the advice tendered by the Chief Justice of India, emerged after taking into account, not only the primary material before him, but also, the assessment made by the Chief Justice of G the High Court. And therefore, when he rendered his advice, the assessment of the Chief Justice of the High Court, must be deemed to have been considered by him. It was pointed out, that from the constitutional scheme, it appeared, that in H 140 SUPREME COURT REPORTS (2015] 13 S.C.R. A matters concerning the High Courts, there was a dose consultative relationship, between the President and the Chief Justice of India. In that capacity, the Chief Justice of India functioned, as a constitutional check, on the exercise of arbitrary power, and was the protector of the "independence B of the judiciary" (paragraph.891 ). (iv) On the subject of appointment of Judges to the High Courts, it was concluded, that the appointment of an additional Judge, like the appointment of a permanent Judge, must be made in c the manner prescribed in Article 217(1 ). Accordingly, it was felt, that there was no reason to suspect, that a person found fit for appointment as an addition~! Judge, and had already gained proficiency and experience, would not be appointed as a Judge for a further period, in order that the work may be o disposed of (paragraph 893). (v) It was also opined, that the judiciary by judicial verdict, could not decide, how many permanent Judges were required for a High Court. And if a Court was not competent to do that, it could not issue a direction to the Government, that additional E Judges should be appointed as permanent Judges (paragraph 895). Accordingly it was felt, that there was no doubt whatever, that the provision of Article 217(1) would come into play, when an additional Judge was to be considered for further F appointment as an additional Judge, or was to be considered for appointment as a permanent Judge (paragraph 897). (vi) With reference to the non-continuation of S.N. Kumar, J., it was pointed out, that the allegations contained in the letter dated 7 .5.1981 strongly influenced the decision of the G Government. Since the aforesaid letter was not brought to the notice of the Chief Justice of India, it was inevitable to conclude, that the process of consultation with the Chief Justice of India was not full and effective, and the withholding of important and relevant material from the Chief Justice of India, vitiated the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 141 process. It was accordingly held, that the non-continuation of A theterm of S.N. Kumar, J., was in violation of the mandatory constitutional requirements contained in Article 217 (1 ). It was felt, that the issue pertaining to the continuation of S.N. Kumar, J., needed to be reconsidered, and a decision needed to be taken, only after full and effective consultation (paragraph 904). B (vii) On the issue of transfer of Judges under Article 222(1 ), it was concluded, that the consent of the concerned Judge was not one of the mandated requirements (paragraph 913). It was pointed out, that the transfer of a Judge, could be made c only in public interest, and that no Judge could be transferred, on the ground of misbehaviour or incapacity. The question of invoking Article 222(1 ), for purposes of punishing a Judge, was clearly ruled out (paragraphs 917 and 918). It was clarified, that the Judge proposed to be transferred, did not have a right o of hearing. And that, the scope and degree of inquiry by the Chief Justice of India, fell within his exclusive discretion. All that was necessary was, that the Judge should know why his transfer was proposed, so that he would be able to acquaint the Chief Justice of India, why he should not be so transferred. E It was further clarified, that the process of consultation envisaged under Article 222(1) required, that all the material in possession of the President must be placed before the Chief Justice of India (paragraph 919). (viii) I! was held that, it was open to the Judge, who was subjected to transfer, to seek judicial review, by contesting his transfer on the ground that it violated Article 222( 1) (paragraph 920). F (ix) It was also felt, that the power to transfer a Judge from one G High Court to another, could constitute a threat, to the sense of independence and impartiality of the Judge, and accordingly, it was held, thatthe said power should be exercised sparingly, and only for very strong reasons (paragraph 921 ). H 142 SUPREME COURT REPORTS [2015] 13 S.C.R. A (x) On the validity of the transfer of K.B.N. Singh, CJ., it was concluded, that the considerations on which the transfer had been made, could be regarded as falling within the expression "public interest", and therefore, the order of transfer did not violate Article 222(1 ). B (xi) Insofar as the validity of the letter of the Union Law Minister dated 18.3.1981 is concerned, it was observed, that neither the proposal nor the consent given thereto, had any legal status. In the above view, it was held, that the circular letter could not C be acted upon, and any consent given pursuant thereto, was not binding. E.S. Venkataramiah. J. (as he then was): (i) With reference to the "independence of the judiciary", it was 0 opined, that the same was one of the central values on which the Constitution was based. It was pointed out, that in all countries, where the rule of law prevailed, and the power to adjudicate upon disputes between a man and a man, and a man and the State, and a State and another State, and a State E and the Centre, was entrusted to a judicial body, it was natural that such body should be assigned a status, free from capricious or whimsical interference from outside; so that it could act, without fear and in consonance with judicial conscience (paragraph 1068). F (ii) Referring to Article 217(1) it was asserted, that each of the three functionaries mentioned therein, had to be consulted before a Judge of a High Court could be appointed. It was pointed out, that each of the consultees, had a distinct and G separate role to play. Given the distinct roles assigned to them, which may to some extent be overlapping, it could not be said, that the Chief Justice of India occupied a position of primacy, amongst the three consultees (paragraph 1019). (iii) The power of appointment of a Judge of a High Court was H considered to be an executive power (paragraph 1023). SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 143 Accordingly, while making an appointment of a High Court A Judge, the President was bound to act, on the advice of his Council of Ministers, and at the same time, giving due regard to the opinions expressed by those who were required to be consulted under Article 217(1 ). Despite the above, it was felt,· that there was no scope for holding, that either the Council of B Ministers could not advise the President, or the opinion of the Chief Justice of India was binding on the President. Although, it was felt, that such opinion should be given due respect and regard (paragraph 1032). It was held, that the above method was intrinsic in the matter of appointment of Judges, as in that C If the way, Judges may be called people's Judges. appointments of Judges were to be made on the basis of the recommendations of Judges only, then they will be Judges' Judges, and such appointment~ may not fit into the scheme of D popular democracy (paragraph 1042). (iv) It was held, that the Constitution did not prescribe different modes of appointment for permanent Judges, additional Judges, or acting Judges. All of them were required to be appointed by the same process, namely, in the manner E contemplated under Article 217(1) (paragraph 1061). The appointment of almost all High Court Judges initially as additional Judges under Article 224(1 ), and later on as permanent Judges under Article 217 ( 1 ), was not conducive to the independence of judiciary (paragraph 1067). It was held, F that the Constitution did not confer any right upon an additional Judge, to claim as of right, that he should be appointed again, either as a permanent Judge, or as an additional Judge. Accordingly, it was held, that there was no such enforceable right (paragraph 107 4 ). G (v) Despite the above, it was observed, that in the absence of cogent reasons for not appointing an additional Judge, the appointment of somebody else in his place, would be an unreasonable and a perverse act, which would entitle the H 144 SUPREME COURT REPORTS [2015] 13 S.C.R. A additional Judge, to move a Court for appropriate relief, in the peculiar circumstances (paragraph 1086). It was held, that having regard to the high office, to which the appointment was made, and the association of high dignitaries, who had to be consulted before any such appointment was made, the B application of principles of natural justice, as of right, was ruled out (paragraph 1087). (vi) With reference to Article 222, it was opined, that the consent of the Judge being transferred, was not a prerequisite before c passing an order of transfer (paragraphs 1097 and 1099). It was held, that the transfer of a Judge of a High Court to another High Court, could not be construed as a fresh appointment, in the High Court to which the Judge was transferred. An order of transfer made under Article 222, it was held, was liable to o be struck down by a Court, if"it could be shown, that it had been made for an extraneous reason, i.e., on a ground falling outside the scope of Article 222. Under Article 222, a Judge could be transferred, when the transfer served public interest. It was held, that the President had·no power to transfer a High E Court Judge, for reasons not bearing on public interest, or arising out of whim, caprice or fancy of the executive, or because of the executive desire to bend a Judge to its own way of thinking (paragraphs 1097, 1099 and 1132). F (vii) It was held, that Article 222 cannot be resorted to on the ground of alleged misbehaviour or incapacity of a Judge (paragraph 1139). (viii) Based on the opinion expressed by several expert bodies, it was opined, that any transfer of a Judge of a High Court G under Article 222, in order to implement the policy of appointing Chief Justice of every High Court from outside the concerned State, and of having at least 1/3rd of Judges of every High Court from outside the State, would not be unconstitutional (paragraph 1164 ). H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 145 (ix) The letter of the Union Minister of Law dated 18.3.1981, A was found to be valid. All contentions raised against the validity thereof were rejected (paragraph 1239). (x) The decision of the President not to issue a fresh order of appointment to S.N. Kumar, J., on the expiry of his term as an B additional Judge of the Delhi High Court, was held to be justified (paragraph 1128 ). (xi) The transfer of K.B.N. Singh, CJ., was held to have been made strictly in consonance with the procedure indicated in the Sankalchand Himatlal Sheth case 5• It was accordingly C concluded, that there was no ground to hold, that the above transfer was not considered by the Chief Justice of India, in a fair and reasonable way. On the facts and circumstances of the case, it was concluded that it was not possible to hold that the above transfer was either illegal or void (paragraphs 1252 D and 1257). The Second Judges Case· (1993)'4 SCC 441:

17. For the purpose of adjudication of the present issue, namely, whether the judgment rendered by this Court in the E Second Judges case needs to be re-examined, it is not necessary to delineate the views expressed by the individual Judges, as the conclusions drawn by them are per se not subject matter of challenge. The limited challenge being, that vital aspects of the matter, which needed to have been F considered were not canvassed, and therefore, could not be taken into consideration in the process of decision making. In the above perspective, we consider it just and proper to extract hereunder, only the conclusions drawn by the majority view: "(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' forselecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this H G 146 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c .,. E F G H duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of the proposal for appoint_ment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a .High Court by the Chief Justice of that High Court; and for transfer of a Judge/ Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as forthe transfers of Judges/Chief Justices of the High Courts must invariably be made. (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India', and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accept~d by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention. (6)Appointment to the office of the Chief Justice of India should be of the ~eniormost Judge of the Supreme Court considered fit to hold the office. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR. J.] 147 (7) The opinion of the Chief Justice of India has not mere A primacy, but is determinative in the matter of transfers of High Court judges/Chief Justices. (8) Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one High Court to another. B (9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground. ( 10) In making all appointments and transfers, the norms c indicated must be followed. However, the same do not confer any justiciable right in any one. ( 11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. D (12) The initial appointment of Judge can be made to a High Court other than that for which the proposal was initiated. (13) Fixation of Judge-strength in the High Courts is E justiciable, but only to the extent and in the manner indicated. (14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: AIR 1982 SC 149, in so far as it takes the contrary view relating to primacy of the role of F the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional G . scheme must now be construed, understood and implemented in the manner indicated herein by us." The Third Judges case· (1998) 7 SCC 739:

18. For exactly the same reasons as have been noticed H 148 SUPREME COURT REPORTS [2015] 13 S.C.R. A with reference to the Second Judges case, it is"not necessary to dwell into the unanimous view expressed in the Third Judges case. The concession of the ~ttorney General for India, as' was expressly recorded in paragraph 11 of the Third Judges case, needs to be extracted to highlight the fact, that the then B Attorney General had conceded, that the opinion recorded by the majority in the Second Judges case, had been accepted by the Union of India and, as such, would be binding on it. Paragraph 11 is accordingly reproduced hereunder: c D E F G H "11. We record at the 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 (1993) 4 sec 441 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."

19. It is likewise necessary to extract herein, only the final summary of conclusions expressed in the Third Judges case, which are placed below: "1. The expression "consultation with the Chief justice of India" in Articles 217(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of Indian does not constitute· "consultation" within the meaning of the said Articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 149 Chief Justice or puisne Judge of a High Court in consultation A with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with two seniormost puisne Judges of the Supreme Court. B

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non- C appointment of a judge recommended for appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent o High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on ·transfer.

6. "Strong cogent reasons" do not have to be recorded as justification for a departure from the order of seniority, in E respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

7. The views of the Judges consulted should be in writing F and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, G as aforestated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the H 150 SUPREME COURT REPORTS [2015] 13 S.C.R. A s consultation process, as aforestated, are not binding upon the Government of India." Ill. MOTION BY THE RESPONDENTS. FOR THE REVIEW OF THE SECOND AND THIRD JUDGES CASES: C Third Judges cases.

20. It was the contention of the learned Attorney General, that in the submissions advanced at the hands of the learned counsel representing the petitioners, for adjudication of the merits of the controversy, emphatic reliance had been placed on the judgments rendered by this Court in the Second and It was the contention of the learned Attorney General, that the conclusions drawn in the above judgments, needed a reconsideration by way of a fresh scrutiny, to determine, whether the conclusions recorded therein, could withstand the original provisions of the Constitution, viewed in the background of the debates in the ConstituentAssembly. D

21. In order to record the facts truthfully, it was emphasized, that the submissions advanced by him, could not be canvassed on behalf of the Union of India as in the Third E Judges q:ise, the Union had consciously accepted as binding the judgment rendered in the Second Judges case. Despite the above, the Attorney General was emphatic, that the Union of India could not be debarred from seeking reconsideration of the judgment rendered by this Court in the F Second Judges case. In order to dissuade the learned Attorney General from the course he insisted to pursue, it was suggested, that the determination by this Court in the Second Judges case would not prejudice the claim of the Union of India, if the Union could establish, that the "basic structure" of the G Constitution, namely, the "independence of the judiciary" would not stand compromised by the Constitution (99th Amendment) Act. Despite the instant suggestion, the Attorney General pleaded, that he be allowed to establish, that the determination rendered by the nine-Judge Bench in the Second Judges case, H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 151 c was not sustainable in law. At his insistence, we allowed him A to advance his submissions. Needless to mention, that ifthe Attorney General was successful in persuading us, that the said judgment did not prima facie lay down the correct legal/ constitutional position, the matter would have to be examined by a Constitution Bench, with a strength of nine or more Judges B of this Court, only if, we would additionally uphold the challenge to the impugned constitutional amendment, and strike down the same, failing which the new regime would replace the erstwhile system.

22. First and foremost, our attention was drawn to Article 124 of the Constitution, as it existed, prior to the present amendment. It was submitted that Article 124 contemplated, that the Supreme Court would comprise of the Chief Justice of India, and not more than seven other Judges (unless, the D It was Parliament by law, prescribed a larger number). submitted, that clause (2) of Article 124 vested the power of appoin.tment of Judges of the Supreme Court, with the President. The proviso under Article 124(2) postulated a mandatory "consultation" with the Chief Justice of India. E Appointments contemplated under Article_ 124, also required a non-mandatory "con~ultation" with such other Judges of the Supreme Court and High Courts, as the President may deem necessary. It was accordingly submitted, that the consultation contemplated under Article 124(2), at the hands of the F President was wide enough to include, not only the collegium of Judges, in terms of the judgment rendered by this Court in the Second Judges case, but each and every single Judge on the strength of the Supreme Court, and also the Judges of the High Courts of the States, as the President may choose to G consult. It was submitted, that only a limited role assigned to the Chief Justice of India, had been altered by the judgment in the Second Judges case, into an all pervasive decision taken by the Chief Justice of India, in consultation with a collegium of H 152 SUPREME COURT REPORTS [2015] 13S.C.R. C A Judges. It was pointed out, that the term "consultation" expressed in Article 124 with reference to the Chief Justice of India, had been interpreted to mean "concurrence". And accordingly, the President has been held to be bound, by the recommendation made to him, by the Chief Justice of India B and his collegium of Judges. It was contended, that the above determination, was wholly extraneous to the plain reading of the language engaged in Article 124 (in its original format). It was asserted, that there was never any question of "concurrence", as Article 124 merely contemplated "consultation". It was contended, that the aboire "consultation" had been made mandatory and binding, on the President even in a situation where, the opinion expressed by the Chief Justice and the collegium of Judges, was not acceptable. to the President. It was asserted, that it was not understandable, how this addition came to be made to the plain and simple language engaged in framing Article 124. It was submitted, that once primacy is given to the Chief Justice of India (i.e., to the collegium of Judges, contemplated under the Second and E Third Judges cases), then there was an implied exclusion of "consultation", with the other Judges of the Supreme Court, and also, with the Judges of the High Courts, even though, there was an express provision, empowering the President to make up his mind, after consulting the other Judges of the F Supreme Court and the Judges of the High Courts, as he may choose. 0

23. The Attorney General further contended, that the interpretation placed on Article 124 in the Second Judges case, was an absolutely unsustainable interpretation, specially when examined, with reference to the following illustration. That G even if all the Judges of the Supreme Court, recommend a name, to which the Chief Justice of India alone, was not agreeable, the said recommendee could not be appointed as a Judge. This illustration, it was submitted, placed absolute H power in the hands of one person - the Chief Justice of India. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 153

24. The learned Attorney General, then invited the Court's A attention to Article 125, so as to contend, thatthe salary payable to the Judges of the Supreme Court has to be determined by the Parliament by law, and until such determination was made, the emoluments payable to a Judge would be such, as were specified in the Second Schedule. It was submitted, that the B Parliament was given an express role to determine even the salary of Judges, which is a condition of service of the Judges of the Supreme Court. He also pointed to Article 126, which contemplates, the appointment of one of the Judges of the Supreme Court, to discharge the functions of Chief Justice of C India, on account of his absence or otherwise, or when the Chief Justice of India, was unable to perform the duties of his office. The Court's attention was also drawn to Article 127, to point out, that in a situation where the available Judges of the D • Supreme Court, could not·satisfy the quorum of the Bench, required to adjudicate upon a controversy, the Chief Justice of India could continue the proceedings of the case, by including therein, a Judge of a High Court (who was qualified for appointment as a Judge of the Supreme Court), in order to E make up the quorum, with the previous consent of the President of India. It was submitted, that the role of the President of India was manifestly inter-twined with administration of justice, by allowing the President to appoint a Judge of the High Court, as a Judge of the Supreme Court on 'ad hoc'basis. Reference F was then made to Article 128, whereby the Chief Justice of India, with the previous approval of the President, could require a retired Judge of the Supreme Court, or a person who has held office as a Judge of a High Court, and was duly qualified for appointment as a Judge of the Supreme Court, to sit and G act as a Judge of the Supreme Court. It was pointed out, that this was yet another instance, where the President's noticeable role in the functioning of the higher judiciary, was contemplated by the Constitution itself. The Court's attention was then drawn to Article 130, whereunder, even though the seat of the H 154 SUPREME COURT REPORTS [2015] 13 S.C.R. 0 A Supreme Court was to be at Delhi, it could be moved to any other place in India, if so desired by the Chief Justice of India, with the approval of the President. Yet again, depicting the active role assigned to the President, in the functioning of the higher judiciary. Likewise, the Court's attention was invited to B Articles 133 and 134, providing for an appellate remedy in civil and criminal matters respectively, to the Supreme Court, leaving it open to the Parliament to vary the scope of the Courts' appellate jurisdiction. Insofar as Article 137 is concerned, it was pointed out, that the power of review of the judgments or C orders passed by the Supreme Court, was subject to the provisions of any law made by the Parliament, or any rules that may be made under Article 145. With reference to Article 138, it was contended, that the jurisdiction of the Supreme Court, could be extended to matters falling in the Union List, as the Parliament may choose to confer. Similar reference was made to clause (2) of Article 138, wherein further jurisdiction could be entrusted to the Supreme Court, when agreed to, by the Government of India and by any State E Government, if the Parliament by law so provides. Based on the above, it was contended, that Article 138 was yet another provision, which indicated a participatory role of the Parliament, in the activities of the Supreme Court. Likewise, this Court's attention was drawn to Article 139, whereby the F Parliament could confer, by law, the power to issue directions, orders or writs, in addition to the framework demarcated through Article 32(2). This, according to the learned Attorney General, indicated another participatory role of the Parliament in the activities of the Supreme Court. Pointing to Article 140, it was submitted, that the Parliament could by law confer upon the Supreme Court supplemental powers, in addition to the powers vested with it by the Constitution, as may appear to the Parliament to be necessary br desirable, to enable the Supreme Court to exercise its jurisdiction more effectively. It H was submitted, that one Article after the other, including Article G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 155 In the C 140, indicated a collective and participatory role of the A President and the Parliament, in the activities of the Supreme Court. Having read out Article 142(2), it was asserted, that even on the subject of securing the attendance of any person, and the discovery or production of any documents, or the investigation or punishment of any contempt of itself, the B jurisdiction of the Supreme Court was subject to the law made by the Parliament. The learned Attorney General, also referred to Article 145, whereunder, it was open to the Parliament to enact law framed by the Parliament, for regulating generally the practice and procedure of the Supreme Court. absence of any such law, the Supreme Court had the liberty to make rules for regulating the practice and procedure of the Court, with the approval of the President. It was submitted, that even on elementary issues like procedure, the Parliament and/or the President were assigned a role by the Constitution, D in activities strictly in the judicial domain. With reference to the activities of the Supreme Court, the Court's attention was also drawn to Article 146, which envisages that appointments of officers and servants of the Supreme Court, were to be E made by the Chief Justice of India. It was pointed out, that the authority conferred under Article 146, was subservient to the right of the President, to frame rules requiring future appointments to any office connected to the Supreme Court, to be made, only in consultation with the Union Pubic Service F Commission. The aforesaid right of appointing officers and servants to the Supreme Court, is also clearly subservient to the right of the Parliament, to make provisions by enacting law on the above subject. In the absence of a legislation, at the hands of the Parliament, the conditions of service of officers G and servants of the Supreme Court would be such, as may be prescribed by rules framed, by the Chief Justice of India. The rules framed by the Chief Justice, are subject to the approval by the President, with reference to salaries, allowances, leave and pension. H 156 SUPREME COURT REPORTS [2015] 13S.C.R. A 0 B

25. With reference to the appointments made to the High Courts, the Court's attention was invited to Article 217, whereunder, the authority of appointing a Judge to a High Court was vested with the President. The President alone, was authorized to make such appointments, after "consultation" with the Chief Justice of India, the Governor of the State, and the Chief Justice of the concerned High Court. The Court's attention was also drawn to Article 221, whereunder, the power to determine the salary payable to a Judge, was to be determined by law to be enacted by the Parliament. Till any C such law was framed by the Parliament, High Court Judges would be entitled to such salaries, as were specified in the Second Schedule. The allowances payable to Judges of the High Court, as also, the right in respect of leave of absence and pension, were also left to the wisdom of Parliament, to be determined by law. And until such determination, Judges of the High Courts were entitled to allowances and rights, as were indicated in the Second Schedule. The Court's attention was also drawn to Article 222, wherein, the President was E authorized, after "consulting" the Chief Justice of India, to transfer a Judge from one High Court to another. Inviting the Court's attention to the provisions referred to in the foregoing two paragraphs contained in Part V, Chapter IV - The Union Judiciary, and Part VI, Chapter V - The High Courts in the F States, it was asserted, that the role of the President, and also, that of the Parliament was thoughtfully interwoven in various · salient aspects, pertaining to the higher judiciary. Exclusion of the executive and the legislature, in the manner expressed through the Second Judges case, in the matter of appointment G of Judges to the higher judiciary, as also, transfer of Judges and Chief Justices of one High Court to another, was clearly against the spirit of the Constitution.

26. It was submitted, that the method of appointment of H Judges to the higher judiciary, was not the "be all" or the "end SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 157 all", of the independence of the judiciary. The question of A independence of the judiciary would arise, with reference to a Judge, only after his appointment as a Judge of the higher judiciary. It was submitted, that this Court had repeatedly placed reliance on the debates in the Constituent Assembly, so as to bring out the intention of the framers of the Constitution, with B reference to constitutional provisions. In this behalf, he placed reliance on T.M.A. Pai Foundation v. State of Karnataka 6 , Re: Special Reference No.1 of 20027 , and also on S.R. Chaudhuri v. State of Punjab8 • The following observations in the last cited judgment were highlighted: C "33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be D general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly E indicate that a non-member's inclusion in the Cabinet was considered to be a "privilege" that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent F Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living G framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful • (2002) a sec 481 1 (2002) a sec 237 a (2001) 7 sec 126 H 158 SUPREME COURT REPORTS [2015] 13 S.C.R. A working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the "privilege" to extend "only" for six months." For the same purpose, he referred to Indra Sawhneyv. Union 8 of lndia 9, and drew the ·court's attention to the opinion expressed therein: C D E F G "217. Further, itis clear for the afore-mentioned reasons that the executive while making the division or sub- classification has not properly applied its mind to various factors, indicated above which may ultimately defeat the very purpose of the division or sub-classification. In that view, para 2(i) not only becomes constitutionally invalid but also suffers from the vice of non-application of mind and arbitrariness.

772. We may now turn to ConstituentAssembly debates with a view to ascertain the original intent underlying the use of words "backward class of citizens". At the outset we must clarify that we are not taking these debates or even the speeches of Dr Ambedkar as conclusive on the meaning of the expression "backward classes". We are referring to these debates as furnishing the context in which and the objective to achieve which this phrase was put in clause (4). We are aware that what is said during these debates is not conclusive or binding upon the Court because several members may have expressed several views. all of which may not be reflected in the provision finally enacted. The speech of Dr Ambedkar on this aspect. however, stands on a different footing. He was not only the Chairman of the Drafting Committee which inserted the expression "backward" in draftArticle 10(3) [it was H • 1992 Supp (3) sec 211 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 159 not there in the original draft Article 10(3)]. he was A virtually piloting the draft Article. In his speech. he explains the reason behind draft clause (3) as also the reason for which the Drafting Committee added the expression "backward" in the clause. In this situation. we fail to understand how can anyone ignore his speech B while trying to ascertain the meaning of the said expression. That the debates in Constituent Assembly can be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of this Court. [See Madhu Limaye, in re, AIR C 1969 SC 1014, Golak Nath v. State of Punjab, AIR 1967 SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in Union of India v. H.S. Dhillon (1971) 2 SCC 779 and the several opinions in Kesavananda Bharati (1973)4 sec D 225, wh·ere the relevance of these debates is pointed out, emphasing at the same time, the extent to which and the purpose for which they can be referred to.] Since the expression "backward" or "backward class of citizens" is not defined in the Constitution, reference to E such debates is permissible to ascertain, at any rate, the context, background and objective behind them. Particularly, where the Court wants to ascertain the 'original intent' such reference may be unavoidable." Reliance was also placed on Kesavananda Bharati v. State of F Kerala 10 , and this Court's attention was invited to the following: "1088. Before I refer to the proceedings of the ConstituentAssembly. I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing the.se provisions. G The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and others v. Union of 10 (1973) 4 sec 225 H 160 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H India, (1971) 1 sec 85 - commonly known as Privy Purses case - debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and others v. Bombay Company Ltd., AIR 1952 SC 366, the Golaknath case (supra), the Privy Purses case (supra), and Union of India v. H.S. Dhillon, (1971) 2 sec 779, there are dicta against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath case (supra), as well as Privy Purses case (supra), the speeches were SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 161 referred to though it was said not for interpreting a A provision but for either examining the transcendental character of Fundamental Rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at B though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself. why should we not look into C them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The Court in a constitutional matter, D where the intent of the framers of the Constitution as embodied in the written document is to be ascertained. should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they E throw no light or throw only dim light in which nothing can be discerned. Unlike a statute. a Constitution is a working instrument of Government. it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly F constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professional bodies, to G legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the ConstituentAssembly, and introduced with a speech H 162 SUPREME COURT REPORTS [2015] 13S.C.R. A B c D E F G H by the sponsor Dr Ambedkar. The assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly. the manner in which they met any criticism. the resultant decisions taken thereupon. amendments proposed. speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern· is to give the national a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of forces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it. should not. if it has to catch the objectives of the framers. deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and what attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 163 examined from this point of view, do they throw any light A on or support the view taken by me?" For the same proposition, reliance was also placed on Samsher Singh v. State of Punjab 11, and on Manoj Narula v. Union of lndia12 • B

27. Having emphasized, that Constituent Assembly debates, had been adopted as a means to understand the true intent and import of the provisions of the Constitution, reference was made in extenso to the Constituent Assembly debates, with reference to the provisions (more particularly, to C Article 124) which are subject matter of the present consideration. It was pointed out, that after the constitution of the Constituent Assembly, the issue of judicial appointments and salaries was taken up by an ad hoc committee on the Supreme Court. The committee comprised of S. Varadachariar D (a former Judge of the Federal Court), B.L. Mitter (a former Advocate General of the Federal Court), in addition to some noted jurists-Alladi Krishnaswamy Ayyar, K.M. Munshi and B. N. Rau (Constitutional Adviser to the Constituent Assembly of India). The ad hoc committee presented its report to the E ConstituentAssembly on 21.5.1947. With reference to judicial independence, it modified the consultative proposal suggested in the Sapru Committee report, by recommending a panel of 11 persons, nominated by the President, in consultation with the Chief Justice of India. Alternatively, it was suggested, that F the panel would recommend three candidates, and the President in consultation with the Chief Justice of India, would choose one of the three. It was suggested, that the panel would take its decision(s) by 2/3rd majority. To ensure independence, G it was recommended, that the panel should have a tenure of ten years. Based on the above report,.it was submitted, that the proposal suggested a wider participation of a collegium 11 (1974) 2 sec 831 12 (2014) g sec 1 H 164 SUPREME COURT REPORTS [2015] 13 S.C.R. A of Judges, politicians and law officers, in addition to the President and the Chief Justice of India, in the matter of appointment of Judges to the higher judiciary. Learned Attorney General went on to inform the Court, that on the basis of the above report, B.N. Rau prepared a memorandum dated B 30.5.1947, wherein he made his own suggestions. The above suggestions related to Judges of the Supreme Court, as also, of High Courts. The Court was also informed, that the Union Constitution Committee presented its report to the Constituent Assembly on 4. 7.194 7, also pertaining to appointments to the C higher judiciary. Yet another memorandum, on the Principles of a Model Provincial Constitution was prepared by the Constitutional Adviser on 13.5.194 7, relating to appointments to the higher judiciary, which was adopted by the Provincial Constitution Committee. Reliance was placed by the Attorney General, on the speech delivered by Sardar Vallabhbhai Patel on 15. 7 .194 7, wherein he expressed the following views: 0 "The committee have given special attention to the appointment of judges of the High Court. This is considered to be very important by the committee and as the judiciary should be above suspicion and should be above party influences, it was agreed that the appointment of High Court judges should be made by the President of the Union in consultation with the Chief Justice of the Supreme Court, the Chief Justice of the Provincial High Court and the Governor with the advice of the Ministry of the Province concerned. So there are many checks provided to ensure fair appointments to the High Court." E F G The Court was informed, that the first draft of the new constitution prepared by B. N. Rau was presented to the Constituent Assembly in October 1947, wherein, it was expressed that Judges of the Supreme Court, would be appointed by the H President, in consultation with the sitting Judges of the Supreme SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 165 Court, and Judges of High Courts in consultation with the Chief A Justice of India, except in the matter of appointment of the Chief Justice of India himself. It was suggested, that this was the immediate prec_ursortoArticle 124(2) of the Constitution, as it was originally framed.

28. It was pointed out, that in the above report prepared by the Constitutional Adviser, the following passage related to the judiciary: B "Regarding the removal of judges, he (Justice Frankfurter, Judge, Supreme Court of the United States C of America) drew attention to a provision which had just been proposed in New York State - the provision has since been approved and which had the support of most of the judges and lawyers in this country. The provision is reproduced below: D 9-a (1) A judge of the court of appeals, a justice of the supreme court, a judge of the court of claims ... (types of judges)may be removed or retired also by a court on the judiciary. The court shall be composed of the chief E judge of the court of appeals, the senior associate judges of the court of appeals and one justice of the appellate division in each department designated by concurrence of a majority of the justices of such appellate division ... F (2) No judicial officer shall be removed by virtue of this section except for cause or be retired except for mental or physical disability preventing the proper performance of his judicial duties, nor unless he shall have been served with a statement of the charges alleged for his G removal or the grounds for his retirement, and shall have had an opportunity to be heard ... (3) The trial of charges for the removal of a judicial officer or of the grounds for his retirement shall be held before a court on the judiciary... H 166 SUPREME COURT REPORTS [2015] 13 S.C.R. A (4) The chief judge of the court of appeals may convene the court on the judiciary upon his own motion and shall convene the court upon written request by the governor or by the presiding justice of any appellate division ... " 8 It was submitted, that the above suggestion of vesting the power of impeachment, in-house by the judiciary itself, as recommended by Justice Frankfurter, was rejected. It was pointed out, that the second draft of the Constitution was placed before the Constituent Assembly on 21.2.1948. Articles 103 C and 193 of the above draft, pertained to appointments of Judges to the Supreme Court and High Courts. It was submitted, that several public comments were received, with reference to the second draft. In this behalf, a memorandum was also received, from the Judges of the Federal Court and the Chief Justices of the High Courts which, inter a/ia, expressed as under: 0 E F "It seems desirable to insert a provision in these articles (Draft Articles 103(2) and 193(2) to the effect that no person should be appointed a judge of the Supreme Court or of a High Court who has at any time accepted the post of a Minister in the Union of India or in any State. This is intended to prevent a person who has accepted office of a Minister from exercising his influence in order to become a judge at any time. It is the unanimous view of the judges that a member of the Indian Civil Service should not be a permanent Chief Justice of any High Court. Suitable provision should be made in the article for this." G It was submitted, that in response to the above memorandum, B.N. Rau made the following observations: "It is unnecessary to put these prohibitions into the Constitution. The- Attorney-General in England is invariably one of the Ministers of the Crown and often even a Cabinet Minister; he is often appointed a judge H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 167 afterwards (The Lord Chancellor is, of course, both a A Cabinet Minister and the head of the judiciary). In India, Sapru and Sircarwere Law Members, or Law Ministers, as they would be called in future; no one would suggest that men of this type should be ineligible for appointment as judges afterwards... B Merit should be the only criterion for these high appointments; no constitutional ban should stand in the way of merit being recognized." It was asserted, that in the memorandum submitted by c the Judges of the Federal Court and the Chief Justices of the High Courts, the following suggestions were made: "It is therefore suggested that Article 193( 1) may be worded in the following or other suitable manner: Every Judge of the High Court shall be appointed by D the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India... E We do not think it is necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has F arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President G making a different proposal, and no express provision need, it seems to us, be made in that behalf. The foregoing applies mutatis mutandis to the appointment of the Judges of the Supreme Court. and H 168 SUPREME COURT REPORTS [2015] 13 S.C.R. A B article 103(2) may also be suitably modified. In this connection it is not appreciated why a constitutional obligation should be cast on the President to consult any Judge or Judges of the Supreme Court or of the High Court in the States before appointing a Judge of the Supreme Court. There is nothing to prevent the President from consulting them whenever he deems it necessary to do so." It was pointed out, that none of the above proposals were C accepted. Reference was also made to the Editor of the Indian Law Review and the Members of the Calcutta Bar Association, who made the following suggestions: 'That in clause (4) of Article 103 the words "and voting" should be deleted, as they consider that in an important issue as the one contemplated in this clause, opportunity should be as much minimized as practicable for the legislators for remaining neutral." to which, the response of B.N. Rau was as under: "In the Constitutions of Canada, Australia, South Africa and Ireland, a bare majority of the members present and voting suffices for the presentation of the address for removal of a judge. Article 103(4) requires a two thirds majority of those present and voting. It is hardly necessary to tighten it further by deleting the words "and voting". With reference to the suggestions regarding non reduction of salaries of Judges, the Constitutional Adviser made the following comments: "The constitutional safeguard against the reduction of salary of the Chief Justice and the judges of a High Court below the minimum has been prescribed in article 197 so as to prevent the Legislatures of the States from reducing the salaries below a reasonable figure. It is D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 169 hardly necessary to put such a check on the power of A Parliament to fix the salaries of the judges of the Supreme Court." The suggestions made by Pittabhi Sitaramayya and others, with reference to officers, and servants and the expenses of the Supreme Court, were also highlighted. They 8 are extracted hereunder: "That in article 122, for the words "the Chief Justice of India in consultation with the President" the words "the President in consultation with the Chief Justice of India" c be substituted." The response of the Constitutional Adviser was as follows: ''The provision for the fixation of the salaries, allowances and pensions of the officers and servants of the D Supreme Court by the Chief Justice of India in consultation with the President contained in clause (1) of article 122 is based on the existing. provision contained in section 242(4) of the Government of India Act, 1935, as adapted. The Drafting Committee E considered such a provision to be necessary to ensure the independence of the judiciary, the safeguarding of which was so much stressed by the Federal Court and the High Courts in their comments on the Draft F Constitution."

29. It was pointed out, that the second draft of the Constitution, was introduced in the Constituent Assembly on 4.11.1948. The Court's attention was drawn to the discussions, with reference to appointments to the higher judiciary, including G the suggestion of B. Pecker Sahib, who proposed an alternative to Article 103(2). Reference was also made to the proposal made by MahboobAli Baig Sahib, guarding against party influences, that may be brought to the fore, with reference to appointment of Judges. It was submitted, that the above H 170 SUPREME COURT REPORTS [2015] 13S.C.R. A suggestion was rejected by the Chairman of the Drafting Committee, who felt that it would be dangerous to enable the Chief Justice to veto the appointment of a Judge to the higher judiciary. The opinion ofT.T. Krishnamachari was also to the following effect: B c D E F G H "[T]he independence of the Judiciary should be maintained and that the Judiciary should not feel that they are subject to favours that the Executive might grant to them from time to time and which would naturally influence their decision in any matter they have to take where the interests of the Executive of the time being happens to be concerned. Atthe same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to crate specially favoured bodies which in themselves becomes an lmperium in lmperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic".

30. The proposals and the decision taken thereon, were brought to our notice, specially the observations made by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar, and finally Dr. B.R. Ambedkar. Dr. B.R. Ambedkar had stated thus: "Finally, BRAmbedkar said: Mr. President, Sir, I would just like to make a few observations in order to Clear the position. Sir. there 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.At the same time, there is thefearthat in the name of the independence of the Judi~iary, we might be creating, what my Friend Mr. T.T. Krishnamachari very aptly called an "lmperium in lmperio". We do not want SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 171 to create an lmperium in lmperio. and at the same time A we want to give the Judiciary ample independence so that it can act without fear or favour of the Executive. My friends. if they will carefully examine the provisions of the new amendment which I have proposed in place of the original article 122. will find that the new article B proposes to steer a middle course. It refuses to create an lmperium in lmperio. and I think it gives the Judiciary as much independence as is necessary for the purpose of administering justice without fear or favour." c

31. Having extensively brought to our notice, the nature of the debates before the Constituent Assembly, and the decisions taken thereon, the learned Attorney General ventured to demonstrate, that the participation of the executive in the matter of appointment of high constitutional functionaries, D "could not- and did not", impinge upon their independence, in the discharge of their duties. Illustratively, reliance was placed on part IV Chapter V of the Constitution, comprising of 4 Articles of the Constitution (Articles 148 to 151 ), dealing with the Comptroller and Auditor-General of India. It was submitted, E that duties and powers of the Comptroller and Auditor-General of India, delineated in Article 149, revealed, that the position of the Comptroller and Auditor-General of India, was no less in importance vis-a-vis the Judges of the higher judiciary. Pointing out to Article 148, it was his contention, that the appointment F of the Comptroller and Auditor-General of India is made by the President. His removal under clause (1) of Article 148 could only, in the like manner, be made on the like grounds as a Judge of the Supreme Court of India. Just like a Judge of the Supreme Court, his salary and other conditions of service were G to be determined by Parliament by law, and until they were so determined, they were to be as expressed in the Second Schedule. Further more, just like a Judge of the Supreme Court, neither the salary of the Comptroller and Auditor-General, H 172 SUPREME COURT REPORTS [2015] 13 S.C.R. A nor his rights in respect of leave of absence, pen.sion or age of retirement, could be varied to his disadvantage, after his appointment. In a similar fashion, as in the case of the Supreme Court, persons serving in the Indian Audit and Accounts Department, were to be subject to such conditions of service, B as were determined by law made by Parliament, and till such legislative enactment was made, their conditions of service were determinable by the President, by framing rules, in consultation with the Comptrol!er and Auditor-General of India. Based on the above, it was contended, that even though the C appointment of the Comptroller and Auditor-General of India, was exclusively vested with the executive, there had never been an adverse murmur with reference to his being influenced by the executive. The inference sought to be drawn was, that the manner of "appointment" is irrelevant, to the question of independence. Independence of an authority, according to the learned Attorney General, emerged from the protection of the conditions of the incumbent's service, after the appointment had been made. 0 E

32. In the like manner, our attention was drawn to Part XV of the Constitution, pertaining to elections. It was submitted, that Article 324 vested the superintendence, direction and control of elections to the Parliament, and the Legislatures of every State, and election to the offices of President and Vice- F President, with the Election Commission. The Election Commission in terms of Article 324(2) was comprised of the Chief Election Commissioner, and such number of other Election Commissioners as the President may from time to time fix. It was submitted, that the appointment of the Chief the other Election Commissioners, was to be made by the President, and was subject to the provisions of law made by Parliament. It was further pointed out, that under Article 324(5), the conditions of service and the tenure of the office of the Election G Election Commissioner, and H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 173 Commissioners (and the Regional Commissioners) is A regulated in the manner, as the President may by rules determine. Of course, subject to, enactment of law by Parliament. So as to depict similarity with the matter under consideration, it was contended, that the proviso under Article 324(5) was explicit to the effect, that the Chief Election B Commissioner could not be removed from his office, except in like manner, and on like grounds, as a Judge of the Supreme Court. And further more, that the conditions of service of the Chief Election Commissioner, could not be varied to his disadvantage, after his appointment. It was contended, that C the Indian experience had been, that the Chief Election Commissioner, and the other Election Commissioners, had functioned with absolute independence, and that, their functioning remained unaffected, despite the fact that their D appointment had been made, by the executive. It was submitted, that impartiality/independence emerged from the protection of the conditions of service of the incumbent after his appointment, and not by the method or manner of his appointment. E •

33. It was also the contention of the learned Attorney General, that implicit in the scheme of the Constitution, was a system of checks and balances, wherein the different constitutional functionaries participate in various processes· of selection, appointment, etc., so as to ensure, ttiat the F constitutional functionaries did not exceed, the functions/ responsibilities assigned to them. To substantiate the above contention, reliance was placed on the Kesavananda Bharati case10 , wherein this Court observed as under: "577. We are unable to see how the power of judicial G review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial H 174 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H process: (per Bose, J., in Bidi Supply Co. v. Union of India, AIR 1956 SC 479). The observations of Patanjali Sastri, C.J., in State of Madras v. V.G. Row, AIR 1952 SC 196, which have become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts "not out of any desire to tilt at legislative authority in a crusader's spirit. but in discharge of a duty plainly laid down upon them by the Constitution". The respondents have also contended that to let the court have judicial review over constitutional amendments would mean involving the court in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales 1950AC 235 at 310: "The problem to be solved will often be not so much legal as political, social or economic, yet it must be solved by a court of law. For where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament." There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances ~y reason of which powers are so distributed that none of the three organs it sets up can become so pre dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the cal?e in the United States Constitution but it envisages such a separation to a degree as was found in Ranasinghe's case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks • SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 175 and balances. Apart from that, as already stated, the A necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Constitution (per Haldane, L.C. in Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. 1914 AC 237 and Ex Parte Walsh & B Johnson; In re Yates, (1925) 37 CLR 36 at p.58. The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the Legislature conferred by the C Constitution would always be a question of interpretation of the Constitution. It may be added that at no stage the respondents have contested the proposition that the validity of a constitutional amendment can be the subject D of review by this Court. The Advocate-General of Maharashtra has characterjsed judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provisions relating to the appointment of judges. the specific restriction to which E the fundamental rights are made subject. the deliberate exclusion of the due process clause in Article 21 and the affirmation in Article 141 that judges declare but not make law. To this may be added the none too rigid amendatory process which authorises amendment by F means of 2/3 majority and the additional requirement of ratification." \ The Court's attention was also invited to the observations recorded in Bhim Singh v. Union of lndia13 : "77. Another contention raised by the petitioners is that G the Scheme violates the principle of separation of powers under the Constitution. The concept of separation of powers, even though not found in any ,, (201 o) s sec 538 H 176 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government. 78. While·understanding this concept. two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two. that in modern governance, a strict separation is neither possible. nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. 79. In Ram Jawaya Kapurv. State of Punjab.AIR 1955 SC 549, this Court held that: (AIR p. 556, para 12) "12 .... The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also. when so empowered. exercise judicial functions in a limited way. The executive Government. however, can never go against the provisions of the Constitution or of any law." SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 177

80. In Kesavananda Bharati v. State of Kera la (1973) 4 A SCC 225. and later in Indira Nehru Gandhi v. Raj Narain (1976) 3 SCC 321. this Court declared separation of powers to be a part of the basic structure of the Constitution. In Kesavananda Bharati case Shelat and Grover, JJs. in SCC para 577 observed the precise B nature of the concept as follows: (SCC p. 452) "577 .... There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so C predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case D in the United States Constitution yet it envisages such a separation to a degree as was found in Ranasinghe case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks E and balances." and conclusion no.5, which is reproduced as under: " · (5) Indian Constitution doe·s not recognise strict separation of powers. The constitutional principle of F separation of powers will only be violated if an essential function of one branch is taken over by another branch. leading to a removal of checks and balances." Last of all, the learned Attorney General placed reliance on State of UP v. Jeet S. Bisht14 , wherein this Court held: G "78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and " (2001) 6 sec 586 H 178 SUPREME COURT REPORTS [2015] 13 S.C.R. A B balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times." C

34. The learned Attorney General emphasized, that there was a very serious and sharp cleavage of opinion on the subject, which is being canvassed before this Court. Relying on the judgment rendered by in the Sankalchand Himatlal Sheth case5, he pointed out, that in the aforesaid judgment, this Court had arrived at the conclusion, that the term "consultation" could not be deemed to be "concurrence", with reference to Article 222. In conjunction with the above, he invited our attention to the judgment in the Samsher Singh case11 , wherein a seven-Judge Bench, which was dealing with E a controversy relating to Judges of subordinate courts, and 0 the impact of Article 311, had examined the question whether · the President was to act in his individual capacity, i.e., at his own discretion; or he was liable to act on the aid and advice of the Council of Ministers, as mandated under Article 7 4. F Reliance was placed on the following observations from the aforesaid judgment: . "149. 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 purnoses. the Minister or the Council of Ministers as the case may be. and his opinion. satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 179 satisfaction or d~cision. The independence of the A 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 conceivable cases consultation with that highest dignitary of Indian justice B 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 entered into the verdict of the Minister. if he departs from the counsel given by the Chief Justice of India. In practice the last C 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. In this view it is D immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue."

35. It was submitted, that the aforesaid observations as , were relied upon were recorded in the Sam sher Singh case 11 in the Second Judges case. This Court, it was pointed out, E had clarified that the observations recorded in paragraph 149 in the Samsher Singh case 11, were merely in the nature of an obiter. It was submitted, that the aforesaid observations in the Samsher Singh case 11, were also noticed in paragraph 383 (at page 665), wherein it was sought to be concluded, that the F President, for all practical purposes, should be construed, as the concerned Minister or the Council of Ministers. Having noticed the constitutional provisions regarding "consultation" with the judiciary, this Court had expressed, that the Government was bound by such counsel. Reference was then G made to the judgment of this Court in the First Judges case, wherein it was held, that "consultation" did not include "concurrence", and further, that the power of appointment of Judges under Article 124, was vested with the President, and H 180 SUPREME COURT REPORTS r201s113 s.c.R. A also, that the President could override the views of the consultees. Last of all, to substantiate his submission(s) pertaining to the cleavage of opinion, reliance was placed on the Kesavananda Bharati case 10 , wherein a thirteen-Judge Bench of this Court, had held, with reference to the power of B amendment under Article 368, that the concept of "basic structure", was a limitation, to the otherwise plenary power of amendment of the Constitution.

36. In his effort to persuade us, to refer the instant matter, c to a nine-Judge Bench (or, to a still larger Bench), the learned Attorney General placed reliance on Suraz 1.ndia Trust v. Union of lndia15 , and invited our attention to the following: D E F G "3. Shri A.K. Ganguli, learned Senior Advocate, has submitted that the method of appointment of a Supreme Court Judge is mentioned in Article 124(2) of the Constitution of India which states: "124. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case ofappointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted." It may be noted that there is no mention: (i) Of any Collegium in Article 124(2). (ii) The word used in Article 124(2) is "consultation'', and not "concurrence". (iii) The President of India while appointing a Supreme Court Judge can consult any Judge of the Supreme Court or even the High Court as he deems necessary for the purpose, H " (2012) 13 sec 497 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] . 181 and is not bound to consult only the five seniormost Judges· A of the Supreme Court. 4. That by the judicial verdicts in the aforesaid two cases, Article 124(2) has been practically amended, although amendment to the Constitution can only be done by Parliament in accordance with the procedu~e laid down in B Article 368 of the Constitution of India. 5. That under Article 124(2) while appointing a Supreme Court Judge, the President of India has to consult the Chief Justice of India, but he may also consult any other Supreme Court Judge and not merely the four seniormost Judges. C Also, the President of.India can even consult a High Court Judge, whereas, according to the aforesaid two decisions the President of India cannot consult any Supreme Court Judge other than the four seniormost Judges of the D Supreme Court, and he cannot consult any High Court Judge at all. 6. Shri Ganguli submits that the matter is required to be considered by a larger Bench as the petition raises the following issues of constitutional importance: ( 1) Whether the aforesaid two verdicts viz. the seven-Judge Bench and nine-Judge Bench decisions of this Court referred to above really amount to amending Article 124(2) of the Constitution? (2) Whether there is any "Collegium" system for appointing F the Supreme Court or High Court Judges in the Constitution? (3) Whether the Constitution can be amended by a judicial verdict or can it only be amended by Parliament in accordance with Article 368? (4) Whether· the constitutional scheme was that the Supreme Court and High Court Judges can be appointed by mutual discussions and mutual consensus between the judiciary and the executive; or whether the judiciary can E G H 182 SUPREME COURT REPORTS [2015] 13S.C.R. A B c D E F G H alone appoint Judges of the Supreme Court and High Courts? (5) Whether the word "c011sultation" in Article 224 means "concurrence"? (6) Whether by judicial interpretation words in the Constitu~ion can be made redundant, as appears to have been done in the aforesaid two decisions which have made consultation with the High Court Judges redundant while appointing a Supreme Court Judge despite the fact that it is permissible on the clear language of Article 124(2)? (7) Whether the clear language of Article 124(2) can be altered by judicial verdicts and instead of allowing the President of India to consult such Judges of the Supreme Court as he deems necessary (including even junior Judges) only the Chief Justice of India and four seniormost Judges of the Supreme Court can alone be consulted while appointing a Supreme Court Judge? (8) Whether there was any convention that the President is bound by the advice of the Chief Justice of India, and whether any such convention (assuming there was one) can prevail over the clear language of Article 124(2)? (9) Whether the opinion of the Chief Justice of India has any primacy in the aforesaid appointments? (10) Whether the aforesaid two decisions should be overruled by a larger Bench? 7. Mr G.E. Vahanvati, learned Attorney General for India, supports the petitioner contending that the aforesaid judgments require reconsideration. However, he also submits: (a) A writ petition under Article 32 is not maintainable at the behest of a trust as the trust cannot claim violation of any of its fundamental rights; (b) The petitioner has no locus standi to seek review of the judgments of this Court. In fact, a petition under Article 32 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 183 B of the Constitution does not lie to challenge the correctness A of a judicial order; and (c) A Bench of two Judges cannot examine the correctness of the judgment of a nine-Judge Bench. (d) A Bench of two Judges cannot refer the matter to the larger Bench of nine Judges or more, directly. 11. However, Mr Ganguli dealing with the issue of locus standi of the Trust has submitted that the petition may not be maintainable but it should be entertained because it raises a large number of substantial questions of law. In C order to fortify his submission he places reliance upon a recent Constitution Bench judgment of this Court in B.P. Singhal v. Union of India (2010) 6 SCC 331 wherein while dealing with the issue of removal of Governors, this Court held as under: (SCC p. 346, para 15) "15. The petitioner has no locus to maintain the petition in regard to the prayers claiming relief for the benefit of the individual Governors. At all events, such prayers no longer survive on account of passage of time. However, with E regard to the general question of public importance referred to the Constitution Bench, touching upon the scope of Article 156(1) and the limitations upon the doctrine of pleasure, the petitioner has the necessary locus." Thus, Mr Ganguli submits that considering the gravity of F the issues involved herein, the matter should be entertained. 12. While dealing with the issue of reference to the larger Bench, Mr Ganguli has placed a very heavy reliance on the recent order of this Court dated 30-3-2011 in Mineral Area Development Authority v. SAIL (2011) 4 SCC 450, G wherein considering the issue of interpretation of the constitutional provisions and validity of the Act involved therein, a three-Judge Bench presided over by the Hon'ble Chief Justice has referred the matter to a nine-Judge Bench. 0 H 184 SUPREME COURT REPORTS [2015] 13 S.C.R. A B

13. At this juncture, Mr Ganguli as well as Mr Vahanvati have submitted that even at the stage of preliminary hearing for admission of the petition, the matter requires to be heard by a larger Bench as this matter has earlier been dealt with by a three-Judge Bench and involves very complicated legal issues. 14. In view of the above, we place the matter before the Hon'ble the Chief Justice for appropriate directions." It was pointed out, that when the above matter was placed C before a three-Judge Bench of this Court, the same was dismissed on the ground of locus standi. Yet, since the above order was passed in the absence of the petitioner trust, an application had been moved for recall of the above order. It was his assertion, that whether or not a recall order was passed 0 with reference to the questions raised, it was apparent, that a Bench of this Court has already expressed the view, that the conclusions drawn in the Second and Third Judges cases, need a relook.

37. Finally, to support the above suggestions, the Court's · E attention was drawn to the observations recorded by H.M. Seervai in the 4th edition of his book "Constitutional Law of India" wherein, with reference to the Second Judges case, very strong and adverse views were expressed. The aforesaid views are contained in paragraphs 25.448 to 25.497. For reasons of brevity, it is not possible for us to extract the same herein. Suffice it to state, that the submissions advanced by the learned Attorney General, as have been detailed in the foregoing paragraphs, were more or less, in accord with the F G views expressed by H.M. Seervai.

38. In order to contend, that it was open to this Court, to make a reference for reconsideration of the matters already adjudicated upon, the learned Attorney General, invited our attention to Jindal Stainless Limited v. State of Haryana 16• • (201 O) 4 sec 595 1 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 185 "6. In Keshav Mills Co. Ltd. v. CITAIR 1965SC1636 ... (AIR A pp.1643-44, para 23) a Constitution Bench of this Court enacted the circumstances in which a reference to the larger Bench would lie. It was held that in revisiting and revising its earlier decision, this Court should ask itself whether in the interest of the public good or for any other B valid and compulsive reasons, it is necessary that the earlier decision should be revised? Whether on the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to. any relevant and material statutory provision, or was any C previous decision bearing on the point not noticed? What was the impact of the error in the previous decision on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High D Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? 7. According to the judgment in Keshav Mills case these and other relevant considerations must be born in mind whenever this Court is called upon to exercise its E jurisdiction to review and revisit its earlier decisions. Of course, in Keshav Mills case a caution was sounded to the effect that frequent exercise of this Court of its power to revisit its earlier decisions may incidentally tend to make the law uncertain and introduce confusion which must be F avoided. But, that is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error. 8. In conclusion, in Keshav Mills case, this Court observed that it is not possible to lay down any principles which should G govern the approach of the Court in dealing with the question of revisiting its earlier decision. It would ultimately depend upon several relevant considerations. 9. In Central Board of Dawoodi Bohra Community v. State - of Maharashtra (2005) 2 SCC 673 ... , a Constitution Bench H 186 SUPREME COURT REPORTS [2015] 13 S.C.R. A of this Court observed that, in case of doubt, a smaller Bench can invite attention of Chief Justice and request for the matter being placed for hearing before a Bench larger than the one whose decision is being doubted."

39. With the above noted submissions, learned Attorney B General for India concluded his address, for the review of the judgments in the Second and Third Judges cases.

40. Mr. K.K. Venugopal, learned senior counsel, commenced his submissions by highlighting the main features c of the Constitution (67th Amendment) Bill, 1990. He invited our attention, to the proposed amendments of Articles 124, 217, 222 and 231, and more particularly, to the inserstion of Part XlllA in the Constitution, under the heading "National Judicial Commission". Article 307A was proposed as the D singular Article in Part XII IA. Based on the constitution of the National Judicial Commission, it was asserted, that the above Bill, had been introduced, to negate the effect of the judgment of this Court in the First Judges case. It was submitted, that when the aforesaid Bill was introduced in the Parliament, the E Supreme Court Bar Association, of which Mr. Venugopal himself was the then President, organized a seminar on 1.9.1990, for the purpose of debating the pros and cons of the Constitution (671 h Amendment) Bill, 1990. It was submitted, that a large number of speakers had taken part in the debate F and had made important suggestions. The above suggestions, drafted as a resolution of the seminar, were placed before the House, and were passed either unanimously or with an overwhelming majority. It was submitted, that the aforesaid resolutions were forwarded to the Chief Justice of India, through a covering letter dated 5.10.1990. It was pointed out, that resolutions were also passed, at the conclusion of the Chief Justices' Conference, held between 31.8.1990 and 2.9.1990, wherein also, the provisions of the Constitution (671h H Amendment) Bill, 1990, were deliberated upon. It was G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 187 submitted, that he had made a compilation of the resolutions A passed at the Chief Justices Conference, and the conclusions drawn in the Second Judges case, which would give a bird's eye view, of the views expressed. The compilation to which learned counsel drew our attention, is being extracted hereunder: B " ... (1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and C all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of the proposal for appointment in the case of D ·the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for E appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made. (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by F the view of the Chief Justice of India', and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India G H 188 SUPREME COURT REPORTS [2015] 13S.C.R. A B may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention .... " Based on the aforesaid compilation, it was contended, that the judgment rendered in the Second Judges case, completely obliterated three salient features of Article 124. C Firstly, under the original Article 124, the main voice was that of the President. · It was submitted, that the voice of the President was totally choked in the Second Judges case. Secondly, Article 124, as it was originally framed, vested the executive with primacy, in respect of the appointments to the 0 higher judiciary, whereas the position was reversed by the Second Judges case, by vesting primacy with the judiciary. Thirdly, the role of the Chief Justice of India, which was originally, that of a mere consultee, was "turned over its head", by the decision in the Second Judges case. Now, the collegium of E Judges, headed by the Chief Justice of India, has been vested with the final determinative authority for making appointments to the higher judiciary. And the President is liable to "concur", with the recommendations made. Based on the above assertions, it was the submission of the learned counsel, that F by wholly misconstruing Article 124, the Supreme Court had assumed the entire power of appointment. And the voice of the executive had been completely stifled. It was submitted, that the judiciary had performed a legislative function, while interpreting Article 124. It was asserted, that originally the founding fathers had the power to frame the provisions of the Constitution, and thereafter, the Parliament had the power to amend the Constitution in terms of Article 368. It was submitted, that the role assigned to the Constituent Assembly, as also to the Parliament, has been performed by this Court in G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 189 the Second Judges case. It was submitted, that all this had A been done in the name of"judicial independence". The above logic was sought to be seriously contestecj by asserting, that judicial independence could not stand by itself, there was something like judicial accountability also, which had to be kept in mind. B

41. It was also contended, that the judiciary had taken upon itself, the exclusive role of making appointments to the higher judiciary, without taking into consideration any of the stakeholders. It is submitted, that the judiciary is meant for the c litigating community, and therefore, the litigating community was liable to be vested with some role in the matter of appointments to the higher judiciary. Likewise, it was pointed out, that there were about ten lakhs lawyers in this country. They also had not been given any say in the matter. Even the Bar D Associations, which have the ability to represent the lawyers' fraternity, had been excluded from any role in the process of appointments. It was highlighted, that under the old system, all the above st~keholders, had an opportunity to make representations to the executive, in the matter of appointments E to the higher judiciary. But, that role has now been totally excluded, by the interpretation placed on Article 124, by the Second Judges case. The Court's attention was drawn to conclusion no.14 drawn in the summary of conclusions (recorded in paragraph 486, in the Second Judges case) that F ~ the majority opinion in the First Judges case, insofar as, it had taken a contrary view, relating to primacy of the role of the Chief · Justice of India, in matters of appointments and transfers, and the justiciability of these matters, as well as, in relation to judge strength, did not commend itself as being the correct view. G Accordingly it was concluded, that the relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented, in the manner indicated in the conclusions drawn in the Second Judges case. H 190 SUPREME COURT REPORTS [2015] 13 S.C.R. A The above determination, according to learned counsel, was absolutely misconceived, as the same totally negated the effect of Article 7 4, which required the President to act only on the aid and advice of the Council of Ministers. According to learned counsel, the President would now have to act as per the dictate B of the Chief Justice of India and the collegium of Judges. It was submitted, that it was impermissible in law, for a party to make a decision in its own favour. This, according to learned counsel, is exactly what the Supreme Court had done in the Second Judges case. It was contented, that the impugned C constitutional amendment was an effort at the behest of the Parliament, to correct the above historical aberration. Learned counsel concluded, by asserting, that there were two Houses of Parliament under the Constitution, but the Supreme Court in the Second Judges case, had acted as a third House of Parliament, namely, as the House of corrections. In the background of the aforesaid factual position, it was submitted, that when the Union of India and the States which ratified the Constitution (99th Amendment) Act, seek reconsideration of the Second Judges case, was it too much, that the Union and the States were asking for? E 0

42. Following the submissions noticed hereinabove, we heard Mr. K. Parasaran, Senior Advocate, who also supported the prayer made by the learned Attorney General. It was F submitted, that the appointment of Judges had nothing to do with "independence of the Judge" concerned, or the judicial institution as a whole. It was submitted, that subsequent to their appointment to the higher judiciary, the conditions of service of Judges of the High Court and the Supreme Court G were securely protected. Thereafter, the independence of the Judges depended on their judicial conscience, and the executive has no role to play therein.

43. It was asserted, that the Judges who expressed the H majority view, in the Second Judges case, entertained a SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 191 preconceived notion about the "basic structure", even before A hearing commenced, in the Second Judges case. In this behalf, he placed reliance on the resolutions passed at the conclusion of the Chief Justices' Conference, held between 31.8.1990 and 2.9.1990. It was asserted, that the controversy had not been adjudicated on the basis ~fan independent assessment, B of the views expressed in the Constituent Assembly debates (with reference to the text of Article 124 ). It was submitted, that the interpretation rendered on Article 124, expressly ignored, not only the simple langu_age indicating the procedure for appointment of Judges, but also the surrounding constitutional C provisions. According to learned senior counsel, the judiciary had encroached into the executive power of appointment of Judges. This amounted to encroaching into a constitutional power, reserved for the executive, by the Constitution. It was D asserted, that the power of amendment of the Constitution, vested in the Parliament under Article 368, was only aimed at keeping the Constitution in constant repair. It was submitted, that the aforesaid power vested with the Parliament, could not have been exercised by the Supreme Court, by substituting E the procedure of appointment of Judges, in the manner the Supreme Court felt. It was submitted, that in the Second Judges case, as also, the Third Judges case, the Supreme Court had violated the "basic structure", by impinging upon legislative power. It was contended, that it was imperative for this Court F to have a re-look at the two judgments, so as to determine, whether there had been a trespass by the judiciary, into the legislative domain. And, if this Court arrives at the conclusion, that such was the case, it should strike down its earlier determination. It was further submitted, that the majesty of the G Constitution, must be maintained and preserved at all costs, and there should be no hesitation in revisiting any earlier judgment, so as to correct an erroneous decision. With the aforesaid observations, learned counsel commended the Bench, to accept the prayer made by the learned Attorney H 192 SUPREME COURT REPORTS [2015] 13 S.C.R. A General, and to make a reference for reconsideration of the judgments rendered by this Court, in the Second and Third Judges cases, to a Bench with an appropriate strength.

44. Mr. Ravindra Srivastava, Senior Advocate, also B supported the submissions for reference to a larger Bench. It was submitted, that the conclusions drawn by this Court in the Second Judges case, and the Third Judges case, were liable to be described as doubtful, because a large number of salient facts, had not been taken into consideration, when the same c were decided. It was the contention of the learned counsel, that the submissions advanced on behalf of the petitioners, on merits, could not be supported by the text of the constitutional provisions, and that, the petitioners' reliance squarely based on the majority judgment in the Second Judges case, as was o further explained in the Third Judges case, was seriously flawed. It was submitted, that the thrust of the submissions advanced on behalf of the petitioners on merits had been, not only that the consultation with the Chief Justice of India was mandatory, but the opinion of the collegium of Judges was E binding on the executive. It was asserted, that neither of the above requirements emerged from the plain reading of Article 124. It was asserted, that the basis of the learned counsel representing the petitioners, to assail the impugned constitutional amendment, as also the NJAC Act, was squarely F premised on the above determination. It was asserted, that the conclusion of primacy of the judiciary, in the matter of appointment of Judges in the higher judiciary, could not be supported by any text of the original constitutional provisions. It was, accordingly suggested, that it was absolutely imperative to correct the majority view expressed in the Second Judges case. G

45. According to the learned counsel, the primary objection raised, at the behest of the petitioners, opposing the reconsideration of the decision rendered in the Second H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 193 Judges case, was based on the observations recorded in A paragraph 10 of the Third Judges case, wherein the statement of the then Attorney General for India, had been recorded, that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case. It was submitted, that the aforesaid statement, could not bar the plea of B reconsideration, for all times to come. It was further submitted, that the above statement would not bind the Parliament. It was contended, that the statement to the effect, that the Union of India, was not seeking a review or reconsideration of the Second Judges case, should not be understood to mean, that C it was impliedly conceded, that the Second Judges case had been correctly decided. It was pointed out, that the advisory jurisdiction under Article 143, which had been invoked by the Presidential Reference made on 23.7.1998, requiring this D Court to render the Third Judges case, was neither appellate nor revisionary in nature. In this behalf, learned counsel placed reliance on Re: Cauvery Water Disputes Tribunal1 7 , wherein it was held, that an order passed by the Supreme Court, could be reviewed only when its jurisdiction was invoked under Article E 137 of the Constitution (read with Rule 1 of Order 40 of the Supreme Court Rules, 1946). And that, a review of the judgment rendered by the Supreme Court, in the Second Judges case, could not be sought through a Presidential Reference made under Article 143. In fact, this Court in the F above judgment, had gone on to conclude, that if the power of review was to be read in Article 143, it would be a serious inroad into the "independence of the judiciary". It was therefore submitted, that the statement of the then Attorney General, during the course of hearing of the Third Judges case, could G not be treated as binding, for all times to come, so as to deprive the executive and the legislature from even seeking a review of the judgments rendered. It was therefore contended, that it 11 1993 Supp ( 1) sec 96(11) H 194 SUPREME COURT REPORTS [2015]13S.C.R. A was implicit while discharging its duty, that ·this Court was obliged to correct the errors of law, which may have been committed in the past. Learned counsel contended, that a perusal of the judgment of this Court in the Subhash Sharma case4 , clearly brought out, that no formal request was made to this Court for reconsideration of the legal position declared by this Court in the First Judges case. Yet, this Court, on its own motion, examined the correctness of the First Judges case, and suo motu, made a reference of the matter, to a nine-Judge Bench, to reconsider the law declared in the First Judges case. B c

46. While pointing to the reasons for reconsideration of the law laid down by this Court in the Second Judges case (read with the Third Judges case), learned senior counsel, asserted, that the essence of Article 124, had been completely o ignored by the majority view. Learned senior counsel, accordingly, invited our attention to the scheme of Article 124(2) and canvassed and summarized the following salient features emerging therefrom: "i. The authority to appoint Judges of the higher judiciary was vested in the President. ii. The above power of appointment by the President, was subject to only one condition, namely, 'consultation'. iii. The above consultation was a two-fold - one which in the opinion of the President may be deemed necessary, and the other which was mandatory. iv. The mandatory consultation was with the Chief Justice of India. The consultation which the President may have 'if deemed necessary for the purpose, was with judges of the Supreme Court and also of the High Courts in the states, as may be felt appropriate. v. There was no limitation on the power, scope and ambit of the President to engage in consultation, he may not only with the judges of the Supreme Court, but may also consult E F G H SUPREME COURTADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 195 judges of High Courts as he may deem necessary, for this A vi. There was also no limitation on the purpose. President's power of consultation. He could consult as many judges of the Supreme Court and High Courts which he deemed necessary for the purpose. vii. Having regard to the object and purpose of the B appointment of a judge of the Supreme Court, and that, such appointment was to the highest judicial office in the Republic, was clearly intended to be broad-based, interactive, informative and meaningful, so that, the C appointment was made of the most suitable candidate. viii. This aspect of the power of consultation of the President, as had been provided had been completely ignored in the majority judgment in Second Judges' case. And the focus has been confined only to the consultation, D with the Chief Justice of India. ix. The interpretation of the consultative process, and the procedure laid down, in the majority judgement in the Second Judges case, that the President's power of consultation, was all-pervasive had been 'circumscribed', E having been so held expressly in paragraph 458 (by Justice J.S. Verma) in the Second Judges' case. x. The majority judgment has focused only on the requirement of consultation by the President with the Chief F Justice of India which is requirement of proviso, ignoring the substantive part. xi. The collegium system had been evolved! for consultation with the Chief Justice of India on the interpretation, that for purposes of consultation with the Chief Justice of India, G the CJI alone as an individual would not matter, but would mean in plurality i.e. his collegium. But this is an interpretation only of the proviso and not of the substantive part of Article 124(2). H 196 SUPREME COURT REPORTS [2015] 13 S.C.R. A B Xii The collegium system was evolved for consultation with the CJI and his colleagues in particular in fixed numbers as laid down in the judgment. xiii. The whole provision for consultation by the President of India with the judges of the Supreme Court and the High Court, had thus been stultified, in ignorance of the substantive part of Article 124(2), and as such, one was constrained to question the majority judgment as being 'per incuriam'." c

47. According to learned senior counsel, a perusal of the judgment in the Subhash Sharma case4 would reveal, that reconsideration of the judgments in the First Judges case, was only on two issues. Firstly, the status and importance of consultation, and the primacy of the position of the Chief Justice D of India. And secondly, the justiceability offixation, of the judge strength of a Court. It was asserted, that no other issuewas referred for reconsideration. This assertion was sought to be supported with the following observations; noticed in the Subhash Sharma case4 : E F G "49. . .... Similarly, the writ application filed by Subhash Sharma for the reasons indicated above may also be disposed of without further directions. As and when necessary the matter can be brought before the court. As in our opinion the correctness of the majoritv view in S.P. Gupta case [(1981) Supp. sec 87] should be considered by a larger bench we direct the papers of W.P. No.1303 of 1987 to be placed before the learned Chief Justice for constitutihg a bench of nine Judges to examine the two guestions we have referred to above. namely, the position of the Chief Justice of India with reference to primacy and. secondly, justiciability of fixation of Judge strength." It was asserted, that there was no scope or occasion for the Bench hearing the Sec.ond Judges case, to rewrite the Constitution, on the subject of appointment of Judges to the ·H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 197 higher judiciary. It was submitted, that the observations A recorded in the Second Judges case, in addition to the above mentioned two. issues, were liable to be regarded as obiter dicta. In the Second Judges case, the ratio decidendi, according to learned counsel, was limited to the declaration of the legal position, only on the two issues, referred to the B larger Bench for consideration. Thus viewed, it was asserted, that all other conclusions recorded in the Second Judges case, on issues other than the two questions referred for reconsideration, cannot legitimately be described as binding law under Article 141. To support the above contention, reliance C was placed on Kerala State Science and Technology Museum v. Rambal Co. 18, wherein this Court held as under: "8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division D Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to. (See Kesho Nath Khurana v. Union of India [(1981) Supp. SCC 38], Samaresh Chandra Bose v. E District Magistrate, Burdwan [(1972) 2 SCC 476] and K.C.P. Ltd. v. State Trading Corpn. of India [(1995) Supp. (3) SCC 466]."

48. Learned senior counsel submitted, that in the Second Judges case, this Court assigned an innovative meaning to F the words "Chief Justice of India", by holding that the term "Chief Justice of India" in Article 124, included a plurality of Judges, and not the individual Chief Justice of India. This, according to learned counsel, was against the plain meaning and text of Article 124. Learned counsel, went on to add, that this Court G in the Second Judges case, had laid down an inviolable rule of seniority, for appointment of Chief Justice of India. It also laid down, the rules and the norms, for transfer of Judges and 10 (2006) 6 sec 258 H 198 SUPREME COURT REPORTS [2015] 13 S.C.R. A Chief Justices, from one High Court to another. It also concluded, that any transfer of a Judge or Chief Justice of a High Court, made on the recommendation of the Chief Justice of India, would be deemed to be non-punitive. In sum and substance, learned counsel contended, that the Second B Judges case, laid down a new structure, in substitution to the role assigned to the Chief Justice of India. The conclusions recorded in the Second Judges case, according to learned counsel, could not be described as a mere judicial interpretation. It was asserted, that the same was nothing short C of judicial activism (or, judicial legislation).

49. Learned senior counsel then invited the Court's attention, to the principles laid down for reconsideration, or review of a previous judgment. For this he pointedly invited o the Court's attention to Bengal Immunity Co. Ltd. v. State of Bihar19 , Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay20 , and Union of India v. Raghubir Singh 21 • Learned counsel also referred to Pradeep Kumar Biswas v. Indian Institute of Chemical Biology22 , wherein it was observed: E F G "61. Should Sabhajit Tewary (1975) 1 SCC 485 ... still stand as an authority even on the tacts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "(!]here is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." [Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, 672] (AIR p. 672, para 15) " (1955) 6 SCR 603 20 (1974) 2 sec 402 21 (1989) 2 sec 754 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 199 Since on a re-examination of the guestion we have-come A to the conclusion that the decision was plainly erroneous. it is our duty to say so and not perpetuate our mistake." It was pointed out, that in the Second Judges case, S. Ratnavel Pandian, J. had observed as follows: B "17. So it falls upon the superior courts in a large measure the responsibility of exploring the ability and potential capacity of the Constitution with a proper diagnostic insight of a new legal concept and making tbis flexible instrument serve the needs of the people of this great nation without C sacrificing its essential features and basic principles which lie at the root of Indian democracy. However, in this process, our main objective should be to make the Constitution quite understandable by stripping away the mystique and enigma that permeates and surrounds it and by clearly focussing D on the reality of the working of the constitutional system and scheme so as to make the justice delivery system more effective and resilient. Although freguent overruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to E reopen the issues which are concluded it is by now well settled by a line of judicial pronouncements that it is emphatically the province and essential duty of the superior courts to review or reconsider their earlier decisions, if so warranted under compelling circumstances and even to F overrule any questionable decision. either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, G principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration." 22 (2002) s sec 111 H 200 SUPREME COURT REPORTS [2015] 13 S.C.R. A It was submitted, that Kuldip Singh, J., in the Second Judges case, had recorded as follows: B c D E "320. It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible. Whether it is to be followed in a given case or not is a question entirely within the discretion of this Court. On a number of occasions this Court has been called upon to reconsider a question already decided. The Court has in appropriate cases overruled its earlier decisions. The process of trial and error, lessons of experience and force of better reasoning make this Court wiser in its judicial functioning. In cases involving vital constitutional issues this Court must feel to bring its opinions into agreement with experience and with the facts newly ascertained. Stare decisis has less relevance in constitutional cases where save for constitutional amendments. this Court is the only body able to make needed changes. Re-examination and reconsideration are among the normal processes of intelligent living. We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." F Based on the above, learned counsel summarized his assertions as follows. Firstly, the real constitutional question, requiring re-examination, was in the context of appointment of Judges to the higher judiciary, was the interpretation of Article 74. Because the Second Judges case, had made a serious inroad into the power of the President which was bound to be exercised in consonance with Article 74. It was contended, that the functioning of the President, in the absence of the aid and advice of the Council of Ministers, could not just be imagined under the scheme of the Constitution. And therefore, the substitution of the participatory role of the Council of H Ministers (or, the Minister concerned), with that of the Chief G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 201 Justice of India in conjunction with his collegium, was just A unthinkable. And secondly, that the First Judges case, was wrongly overruled, and the correct law for appointment of Judges, vis-a-vis the role of the executive, was correctly laid down in the First Judges case, by duly preserving the "independence of the judiciary". It was submitted, that reference B to a larger Bench was inevitable, because it was not open to the respondents, to canvass the above submission, before a five-Judge Bench."

50. Mr. Harish N. Salve and Mr. T.R.Andhyarujina, learned c senior counsel, addressed the Court separately. Their submissions were however similar. It was their contention, that a Constitutional Court revisits constitutional issues, from time to time. This, according to learned counsel, has to be done because the Constitution is a living document, and D needed to be reinvented, to keep pace with .the change of times. It was submitted, that this may not be true for other branches of law, wherein judgments are not revisited, because the Courts were expected to clearly and unambiguously follow the principle of stare decisis, with reference to laws dealing E with private rights. Insofar as the controversy in hand is concerned, it was submitted, that the conclusions recorded by this Court in the Second and Third Judges cases, indicated doubtful conclusions, because a large number of salient facts (as have been recorded above), .had not been taken into F consideration. It was submitted, that expediency in a controversy like the one in hand, should be in favour of the growth of law. It was submitted, that in their view this was one such case, wherein the issue determined by this Court in the Second and Third Judges cases, needed to be re-examined G by making a reference to a larger Bench. Learned counsel pointed out, that the submissions made in the different petitions filed before this Court, were not supported by the text of any constitutional provision, but only relied on the legal position H 202 SUPREME COURT REPORTS [2015] 13S.C.R. A declared by this Court, in the above two cases. In such an important controversy, according to learned counsel, this Court should not be hesitant in revisiting its earlier judgments. Mr. Andhyarujina posed a query, namely, can we decide the controversy raised in the present case, without the reconsideration of the judgments in the Second and Third Judges cases? He answered the same through another query, how can appointments of Judges be by Judges? The above position was again posed differently, by putting forth a further query, car1 primacy rest with the Chief Justice of India in the B C matter of appointment of Judges to the higher judiciary?

51. Mr. Ajit Kumar Sinha, learned Senior Advocate, in support of his contention, that the matter needed to be heard by a larger Bench, placed reliance on Mineral Area , and invited our attention to question no.5 of the reference made by this Court: o Development Authority v. Steel Authority of lndia23 · E "5. Whether the majority decision in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] could be read as departing from the law laid down in the seven Judge Bench decision in India Cement Ltd. v. State of T.N. [(1990) 1sec12)?" F It was pointed out, that the above question came to be framed because in State of West Bengal v. Kesoram Industries Ltd.24 , this Court by a majority of 4:1 had clarified the judgment rendered by a seven-Judge Bench of this 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 , wherein this Court had Accountability v. Union of lndia26 observed as under: " (2011 J 4 sec 450 4 (2004J 10 sec 201 ( 1990 J 1 sec 12 (1992) 4 sec 97 2 2 2 ' ' H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 203 "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. case 19 , 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 H 204 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 205 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 ). 206 SUPREME COURT REPORTS [2015] 13S.C.R. A B c D E F G H 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 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 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. 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 assessee or the Commissioner may, by application in the SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 207 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 case 15 , 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. H 208 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 H "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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 209 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 , during the o 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 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 case 4 • 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 case by M.M. Punchhi, J.: G H 210 SUPREME COURT REPORTS [2015] 138.C.R. A B c D E F G H "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. 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 211 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, H 212 SUPREME COURT REPORTS [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 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. B 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 ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.] 213 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. , wherein a seven-Judge Bench of this Court held as E case28 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 H 214 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c 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." D While referring to Ganga Sugar Corporation Ltd. v. State , our attention was drawn to the following of Uttar Pradesh 30 observations recorded by the five-Judge Bench: E F G "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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 215 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 Rajasthan 31 (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."

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 H 216 SUPREME COURT REPORTS [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 case 11 (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: c D E F G H "(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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 217 A In formal notice to the Judge concerned but it is sufficient - 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. the case of Chandramouleshwar Prasad v. 'Patna High Court, (1969) 3 sec 36, while interpreting the word "consultation" as 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 H D 218 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c 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 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)." 0 Based on the aforesaid, it was the assertion of the 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 case 11 would continue to hold the field, as the review of the same had not been sought. V. THE CONSIDERATION: I.

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 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 F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 219 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, (v) Re: Special Reference No.1 of 1998, (1998) 7 SCC 739- rendered by a nine-Judge Bench. D This Court on no less than five occasions, has examined 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 , H 220 SUPREME COURT REPORTS [2015] 13 S.C.R. 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 case 11 , would not fall on deaf ears. No doubt can be 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 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 .. E 0 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 case 11 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 221 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 H 222 SUPREME COURT REPORTS [2015] 13 S.C.R. A . B 0 . 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/ 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, 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. H

63. The most forceful submission advanced by the II. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 223 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 H 224 SUPREME COURT REPORTS [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 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 the same to the Chief Justice for his consideration. G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

225. 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), H 226 SUPREME COURT REPORTS [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. E

67. Steps 1 to 3 of the Memorandum of Procedure reveal, 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 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 G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 227 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. F

69. After the Chief Justice of India, in consultation with 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 the knowledge of the participating constitutional functionaries. C

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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 229 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. B

73. The learned Attorney General placed emphatic reliance on the Constituent Assembly debates. It was sought 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 case 9 , 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 H 230 SUPREME COURT REPORTS [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.

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 D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 231 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. 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 G H 232 SUPREME COURT REPORTS [2015] 13 S.C.R. A B 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 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. F

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 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 233 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 H 234 SUPREME COURT REPORTS [2015] 13 S.C.R. B A 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 "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 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", 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. G F ·

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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 235 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, the executive was required by the D that the President - 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 H 236 SUPREME COURT REPORTS [2015] 13 S.C.R. B A 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 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 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. 0 IV. G H

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 functioning, set forth by the arrangement and allocation of SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] • 237 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. 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 E H 238 SUPREME COURT REPORTS [2015] 13 S.C.R. A 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. 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 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 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 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 C o E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH Kl-JEHAR, J.] 239 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 this Court through a seven-Judge Bench held as under: , wherein E "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 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 H 240 SUPREME COURT REPORTS [2015] 13 S.C.R. .. A B C 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 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 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 case 5 , 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 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 .. said in Shamsher Singh (supra) that in all conceivable cases. consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India: "In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order." (page 873). It is hoped E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 241 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 case 5 , 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 case 11 •

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 SUPREME COURT REPORTS [2015] 13 S.C.R. B 0 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 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, 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 case 11 , 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, that the last word must belong to the Chief Justice of India i.e., H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 243 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 case 5 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" 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 0 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. F

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 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 SUPREME COURT REPORTS [2015] 13S.C.R. A 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. 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: c D E F G H "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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 245 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 246 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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 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 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 247 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. I am glad to hear that he confirms it. This gives the quietus 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 E F . interfere with the free administration of justice. Those of H 248 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 249

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 250 SUPREME COURT REPORTS [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. 8

89. Based on the consideration recorded in the 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 judiciary, through the Chief Justice "Of India. F 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 251 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. B

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, 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 H 252 SUPREME COURT REPORTS [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: "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 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 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. c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 253

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. 17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, D independence and experience." c 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 SUPREME COURT REPORTS [2015] 13 S.C.R. A B 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 D 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 "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 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 G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 255 (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 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 the President is to appoint a Special Officer for Linguistic Minorities. Herein too, there is no contemplation of any prior consultation. E 0 F

96. It is apparent that the Council of Ministers, with the Prime Minister as its head, is to "aid and advise" the President 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 257

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, 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 F SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 259 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.

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 G 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 also governing the judiciary. 0 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 G

1. It is essential to begin the instant order by a foreword, 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 261

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 lndia 1 (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 H 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 through Y.V. Chandrachud, CJ., as under: D E F "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 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 263 B c

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 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 H 264 SUPREME COURT REPORTS· [2015] 13 S.C.R. A 8 c 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". 34 1992 Supp (2) sec 651 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 265

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 H 266 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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 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 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 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 267 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) H 268 SUPREME COURT REPORTS [2015] 13S.C.R.

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 A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 269 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." E 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 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 H 270 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 271 . 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 H 272 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H ·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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 273 c 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." 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. In this context, paragraphs 10 to 12 of the Third Judges case, G which were relied upon, are being reproduced below: F "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. H 274 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G

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 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 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 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 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."

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 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 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 275 • 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 H 276 SUPREME COURT REPORTS [2015] 13 S.C.R. 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 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". A B 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 - G 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. 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 277 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 H 278 ·SUPREME COURT REPORTS [2015] 13 S.C.R. A of learned counsel, that the non-disclosure of reasons, must inevitably lead to the inference, that there were no such reasons. 8 D

14. Dr. Rajeev Dhavan, learned senior counsel, also 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 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 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 279 impugned constitutional amendment, as also, the legislation A under reference, would undoubtedly be constitutionally invalid. 8 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 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 H 280 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F 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 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 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 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 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 281 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 H 282 SUPREME COURT REPORTS [2015] 13 S.C.R. A B 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 legislative enactment, had breached the "basic structure" of the Constitution. C

18. It was contended, that the judgment in the Second Judges case, should be accepted as the touchstone, by which 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 case 36 , 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 ASSOCIATION v. U.0.1. [JAGDISH_SINGH KHEHAR, J.] 283 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 H 284 SUPREME COURT REPORTS [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. , the Court's attention was invited to the following C Nagaraj case36 observations: "22. The question which arises before us is regarding the nature of the standards of judicial review required to be 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 the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. 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 0 E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 285 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 0 SUPREME COURT REPORTS [2015] 13 S.C.R.

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, 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 , and our attention was E again placed on the M. Nagaraj case36 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 F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 287 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 H 288 SUPREME COURT REPORTS [2015] 13 S.C.R. 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 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 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 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 disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality." Yet again referring to the width and the identity tests, learned counsel emphasized, that it was imperative for this A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 289 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: 8 ' C "134.(i) Parliament has the power to enact legislation and 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. 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. 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 H 290 SUPREME COURT REPORTS (2015] 13 S.C.R. A B 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 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 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: "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 expression "the State" used in Article 50 has to be construed ' F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] .. 291 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. 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 H 292 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H 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. )()()( )()()( )()()(

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'. 154. The controversy that arises for scrutiny from the arguments addressed boils down with regard to the ccnstruction of the word 'consultation'. )()()( 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 case. Fazal Ali. J. has held in Gupta case: (SCC p. 483, para 569) "(3) If the consultation with the CJI has not been done before transferring a Judge, unconstitutional." transfer becomes SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 293 . 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. 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. 183. One should not lose sight of the important fact that E appointment to the judicial office cannot be equated with 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) "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 H G 294 SUPREME COURT REPORT: [2015] 13 S.C.R. A B c D E F G H 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 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 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 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) and Article 217(1l in respect of judicial offices is a SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 295 reservation or limitation on the power of the President to A appoint the Judges to the superior courts. (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. H 296 SUPREME COURT REPORTS [2015] 13 S.C.R. A

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 the word is used as in our Constitution. )()()( )()()( )()()(

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 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 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. But it does not mean that the present system should B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 297 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.". 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 ...... " c 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 . 2. The Supreme Court in the matter of the Supreme Court H G 298 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c D E F G H 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 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 matters as may be considered necessary. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 299

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. 6. The Bill seeks to achieve the above objectives. New Delhi; The 8th August, 2014." Ravi Shankar Prasad B 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 300 SUPREME COURT REPORTS [2015] 13 S.C.R. A B the "independence of the judiciary". The aforesaid judgment, as also, the later judgment in the Third Judges case, re established and reaffirmed, that the Chief Justice of India, represented through a body of Judges, had primacy. According to learned counsel, the individual Chief Justice of India, could not and did not, represent the collective opinion of the Judges. It was asserted, that the Constitution (99th Amendment) Act, and the NJACAct, had done away with, the responsibility vested with the Chief Justice of India, represented through a collegium of Judges (under Articles 124 C and 217 -as originally enacted). Accordingly, it was submitted, that till the system adopted for selection and appointment of Judges, established and affirmed, the unimpeachable primacy of the judiciary, "independence of the judiciary" could not be deemed to have been preserved. 0

26. Insofar as the issue in hand is concerned, it was the pointed contention of the learned counsel, that the decision rendered by this Court in Sardari Lal v. Union of lndia 37 , came to be overruled in the Samsher Singh case 11 • Referring to the , he invited this Court's E judgment in the Samsher Singh case 11 attention to the following observations recorded therein: F G "147. In J.P. Mitterv. Chief Justice, Calcutta AIR 1965 SC 961 this Court had to consider the decision of the Government of India on the age of a Judge of the Calcutta High Court and, in that coritext, had to ascertain the true scope and effect of Article 217(3) which clothes the President with exclusive jurisdiction to determine the age of a Judge finally. In that case the Ministry of Home Affairs went through the exercise prescribed in Article 217(3). "The then Home Minister wrote to the Chief Minister, West Bengal, that he had consulted the Chief Justice of India, and he agreed with the advice given to him by the Chief Justice, and so he had decided that the date of birth of the H 37 AIR 1971SC1547 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 301 appellant was .... lt is this decision which was, in due course A communicated to the appellant". When the said decision was attacked as one reached by the Home Minister only and not by the President personally, the Court observed: · "The alternative stand which the_ appellant took was that the Executive was not entitled to determine his age, and it B must be remembered that this stand was taken before Article 217(3) was inserted in the Constitution; the appellant was undoubtedly justified in contending that the Executive was not competent to determine the question about his age because that is a matter which would have to be tried C normally, in judicial proceedings instituted before High Courts of competent jurisdiction. There is considerable force in the pleawhich the appellant took at the initial stages of this controversy that if the Executive is allowed to D determi_ne the age of a sitting Judge of a High Court. that would seriously affect the independence of the Judiciary itself." Based on this reasoning. the Court quashed the order the ratio of the case being that the President himself should E decide the age of the Judge. uninfluenced by the Executive. i.e. by the Minister in charge of the portfolio dealing with justice. 148. This decision was reiterated in Union of India v. Jyoti Prakash Mitter (1971) 1 SCC 396. Although an argument F was made that the President was· guided in that case by the Minister of Home Affairs and by the Prime Minister. it was repelled by the Court which on the facts. fou'nd the decision to be that of the President himself and not of the Prime Minister or the Home Minister. 149~ In the light of the scheme of the Constitution we have already referred to, it ls doubtful whether such an interpretation as to the personal ~atisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of H G. 302 SUPREME COURT REPORTS [2015] 13 S.C.R. A c B D Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciarv 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 obligatorv In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of 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. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue." 27. It was pointed out, that the decision in the Samsher Singh case 11 , came to be rendered well before the decision in the First Judges case, wherein this Court felt, that Judges could be fearless only if, institutional immunity was assured, and institutional autonomy was guaranteed. The view expressed in the Samsher Singh case 11 in 197 4 was, that the final authority in the matter of appointment of Judges to the higher judiciary, rested with the Chief Justice of India. It was pointed out, that the above position had held the field, ever since. It was submitted, that "independence of the judiciary" has always G meant and included independence in the matter of appointment F E of Judges to the higher judiciary.

28. Mr. Arvind P. Datar, learned Senior Advocate contended, that the NJAC had been created by an amendment to the Constitution. It therefore was a creature of the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 303 Constitution. Power had been vested with the NJAC to make A recommendations of persons for appointment as Judges to the higher judiciary, including the power to transfer Chief Justices and Judges of High Courts, from one High Court to another. The above constitutional authority, it was submitted, must be regulated by a constitutional scheme, which must flow B from the provisions of the Constitution itself. Therefore, it was asserted, thatthe manneroffunctioning of the NJAC must be contained in the Constitution itself. It was submitted, that the method of functioning of the NJAC, could not be left to the Parliament, to be regulated by ordinary law. In order to support C his aforestated contention, reliance was placed on entries 77 and 78, contained in the Union List of the Seventh Schedule. It was submitted, that the power to frame legislation, with reference to entries 77 and 78 was not absolute, inasmuch as, Article 245 authorized the Parliament, to legislate on D subjects falling within its realm, subject to the substantive provisions contained in the Constitution. For the above reason, it was asserted, that the activities of the NJAC could not be made subject to, or subservient to, the power vested in the E Parliament, under entries 77 and 78.

29. It was contended by Mr. Ram Jethmalani, learned Senior Advocate, that there was sufficient circumstantial evidence to demonstrate, that the. present political establishment felt, that the judiciary was an obstacle for the F implementation of its policies. It was contended, that the entire effort, was to subdue the judiciary, by inducting into the selection process, those who could be politically influenced. In order to project, the concerted effort of the political dispensation, in subverting the ''independence of the judiciary", learned counsel, G in the first instance, pointed out, that the first Bill to constitute a National Judicial Commission [the Constitution (67th Amendment) Bill, 1990] was introduced in the Lok Sabha on 18.5.1990. Thestatementofits"Objectsand Reasons", which was relied upon, is extracted below: H 304 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E ."The Government of India have in the recent past announced their intention to set up a high level judicial commission, to be called the National Judicial Commission for the appointment of Judges of the Supreme Court and of the High Courts and the transfer of Judges of the High Courts so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such appointments without any delay. The Law Commission of India in their One Hundred and Twenty-first Report also emphasised the need for a change in the system. 2. The National Judicial Commission to make recommendations with respect to the appointment of Judges of the Supreme Court will consist of the Chief Justice of India and two other Judges of the Supreme Court next in seniority to the Chief Justice of India. The Commission to make recommendations with respect to the appointment of the Judges of the High Courts will consist of the Chief Justice of India, one senior-most Judge of the Supreme Court, the Chief Minister of the State concerned, Chief Justice of the concerned High Court and one senior most Judge of that High Court. 3. The Bill seeks to achieve the above object. NEW DELHI; F The 11 '" May, 1990;" The proposed National Judicial Commission in the above Bill, was to be made a component of Part XlllA of the Constitution, by including therein Article 307 A. The Chief Justice of India, and the next two senior most Judges of the G Supreme Court, were proposed to comprise of the contemplated ComrT)ission, for making appointments of Judges to the Supreme Court, Chief Justices and Judges to High Courts, and for transfer of High Court Judges from one High Court to another. The above Commission, omitted any H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]" 305 executive and legislative participation. The proposed A composition of the Commission, for appointing High Court Judges, included the Chief Justice of India, the Chief Minister or the Governor of the concerned State, the senior most Judge of the Supreme Court, the Chief Justice of the concerned High Court, and the senior most Judge of that Court. The above Bill B also provided for, an independent and separate secretarial staffforthe contemplated Commissi~n. ltwas submitted, that the above amendment to the Constitution, was on account of the disillusionment and incredulity with the legal position, expounded by this Court in the First Judges case. It was C submitted, that the necessity to give effect to the proposed Constitution (67th Amendment) Bill, 1990, stood obviated when this Court rendered its judgment in the Second Judges case. All this, according to learned counsel for the petitioners, has D been forgotten and ignored.

30. Historically, the next stage, was when the Constitution (98thAmendment) Bill, 2003 was placed before the Parliament for its consideration. In the above Bill, the executive participation in the process of sele9tion and appointment of E Judges to the higher judiciary, was introduced by making the Union Minister of Law and Justice, an ex officio Member of the Commission. Two eminent citizens (either eminent jurists, or eminent lawyers, or legal academicians of high repute) would also be Members of the Commission. One of them was F to be appointed by the President in consultation with the Chief Justice of India, and the other, in consultation with thePrime Minister. Yet another effort was made (by the previous U.P.A. Government), in the same direction, through the Constitution (120th Amendment) Bill, 2013, on similar lines as the 2003 G Bill. It was sought to be pointed out, that there was a consensus amongst all the parties, that the aforesaid Bill should be approved. And that, learned counsel personally, as a Member of the Rajya Sabha, had strongly contested the above move. H 306 SUPREME COURT REPORTS [2015] 13 S.C.R. A Learned counsel invited this Court's attention to the objections raised by him, during the course of the debate before the Rajya Sabha. He emphasized, that he had submitted to the Parliament, that the Constitution Amendment Bill, needed to be referred to the Select Committee of the Parliament, as the B same in his opinion was unconstitutional. An extract of the debate was also brought to our notice (by substituting the . vernacular part thereof, with its English translation), it is being reproduced hereunder: . c D E F G H "My suggestion is: Let the Judicial Appointments Commission Bill go to the Standing Committee. The rest of the business we should pass today. Thank you. Shri Ram Jethmalali: Madam, thank you; better late than never. Sir, I wish to make two preliminary suggestions. lfthere is an assurance that the Constitution (Amendment) Bill as well as the subsidiary Bill will both be referred to a Select Committee of Parliament, I do not propose to address this House at all. But, I do not consider it suitable or proper that only the second Bill should be referred to a Select Committee. Both should be sent. And, I will give my reasons. Sir, the second suggestion that I have to make is this. ~ main contention, which I am going to make. is that the Constitution (Amendment) Bill is wholly unconstitutional and, if passed, it will undoubtedly be set aside by the Supreme Court. because it interferes with the basic feature of the Constitution. Such amendments of the Constitution are outside the jurisdiction of this House. The amendment process prescribed by the Constitution requires 2/3" majority and so on and so forth. That applies only to those amendments of the Constitution which do not touch what are called the basic features of the Constitution as understood in the Kesavananda Bharati case. This SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 307 Constitutional amendment. certainly. interferes with a basic A feature of the Indian Constitution and it will not be sustained ever. But. if it is said that even if you pass it. it will not be brought into force until a Reference is made to the Supreme Court and the Supreme Court answers the question of the validity of this Constitution amendment in the affirmative. B If that is done I. again. need not speak. But, Sir, since I don't expect both these reasonable suggestrons to be accepted, I intend to speak and speak my mind. Kapil is my great friend and is one of the Ministers in the C Government whose work as the Law Minister I keep supervising and I am happy the manner in which he conducts his Ministry. But. Sir. I must declare today that my conscience understanding and my duty towards the D people of this country. which I regard as my paramount obligation. do not permit me to submit to this kind of legislation. Both the Bills. according to me are evil. The evil. first of all. consists in the misleading Statement of Objects-and-Reasons. You ought to have said with E complete honesty th'1t what you are trying to demolish is the Collegium System. which seems to be the object and which is apparent to anyone. Some of the persons who have spoken have spoken on the assumption that that is the purpose of this particular piece of legislation. Sir, the first point that I propose to make is that the 1993 judgment of Nine Judges is a judgment based upon the discovery of the basic feature of the Constitution, and upon . devising a system to sustain that basic feature, Madam, I F have myself appeared in that litigation and I claim that I G had a tremendous contribution to make to the success of that judgment. In a sense, I claim to be the founder of the Collegium System. But that does not mean that I am an unmixed admirer of the Collegium System. The Collegium H 308 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H System has, doubtless, some faults. But the Collegium System came into existence on the basis of one main argument. That one main argument that we advance, and advance with great vigour and force, is that there is one article of the Constitution, article 50 of the Constitution, which is the shortest article in the Constitution, consisting of only one sentence. That article says that the Government shall strive to keep the Judiciary separate from the Executive. Sir, we argued before the Supreme Court that this article does not mean that Judges and Ministers should not socially meet. This does not mean that they should live in separate towns, or that they should not live even in adjoining bungalows. The purpose of this article is to ensure that in the appointment of Judges the Executive has no role to play. except the advisory role. In other words, the doctrine of primacy of the Executive in the appointment process was irksome to us because the whole nation of India has been the victim of the Judges appointed in the earlier system. I have been a refugee from my own country during the Emergency. Why was it? It was because four Supreme Court Judges - I am not talking of the fifth who earned the New York Times praise that the Indian nation will have to build a monument to his memory; I am talking of the other four who-disgraced the Judiciary, disgraced the Supreme Court and were parties to the destruction of Indian democracy and the demolition and the debasement of the whole Constitution of India. Sir, of which system were they the product? They were the product of that system which, in 1981, was ultimately supported by the Gupta Judgment but, after some time, there were people, intellectuals, who spoke up that this system would not work; the system requires change. Sir, the Indian democracy has been saved not by intellectuals; Indian democracy at its most crucial SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 309 hour has been saved by ttie poor illiterates of this country. A In times of crises, it is only the brave hearted who matter. On those which one had pride remained tongue tied (Two sentences translated); That is the tragedy of our country. Sir, the intellectuals of this country have continuously failed, and I regret to say B that they are fail.ing even today. Collegium may be the creation of the Judiciary. it is the creation of judicial interpretation. again. of the Constitution. but whatever be the faults of the Collegium. the Collegium today represents some system which is consistent with the basic features of the Constitution; namely. the supremacy of the'Judiciary and its freedom from any influence of the Executive in the appointment process. c . XXX ·XXX XXX Sir, 1 ·am speaking for those who are not irrevocably D committed to voting for this amendment. There are some people who must have kept their minds still open. I am appealing to those minds today only. Those who are irrevocably committed are committed to the destruction of E Indian democracy. ·Sir, the k-ey passage in the judgment of the Supreme Court of 1993 is the passage which I wish to share with the House. The question of primacy to the opinion of the Chief Justice oflndia in the matters of appointment and transfer and their F justifiability should be considered in the context of the independence of the Judiciary as a part of the basic structure of the Constitution to secure the rule of law essential for preservation of the democratic system. The broad scheme of separation of powers adopted in the G Constituti~n together with the Directive Principles of separation of the Judiciary from the Executive, even at the lowest strata, provides some insight to the true meaning of the relevant provisions of the Constitution relating to the H --· 310 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H composition of the Judiciary. Th~ construction of these provisions must accord with these fundamental concepts in the Constitutional sc: 1eme to preserve the vitality and promote the growth of the essential of retaining the Constitution as a vibrant organism". Sir. the Constitution cannot survive. human freedom cannot survive. citizens' human rights cannot survive, no development can take place unless. of course, the judges are independent first of the Executive power because don't forget that every citizen has a grievance against the corrupt members of the Executive, or, errant bureaucracy public officers misusing power, indulging in corruption. making wrong and illegal orders. The citizen goes to the court, knocks the door of the court and says, "Please give me a mandamus against this corrupt official, against this corrupt Minister".And, Sir, the judges are supposed to decide upon the claims of the poorest who go to the Supreme Court ... ... (Interruptions) ...... and to the judges. It may be, and I am conscious ...... (Interruptions) ... Sir, this is not a laughing matter. Please listen, and then decide for yourself .... xxx. Sir, first of all, let me say this now that the whole judgement of nine Judges is based upon this principle that in the appointment process, the Executive can never have primacy. This is principle number one. It has now become the basic feature of India's Constitution. My grievance today against this Constitution (Amendment) Bill is that you are slowly, slowly now creating a new method by which ultimately you will revert to the system which existed prior to 1993. In other words, the same system would produce those four Judges who destroyed the Indian democracy, human rights and freedom. Sir, kindly see, why. The · Constitution Amendment looks very innocent. All that it says is that we shall have a new article 124(a) in the Constitution and article 124(a) merely says that there shall be a Judicial SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 311 Appointments Commission. It lays down that the Judicial A Appointments Commission will have these functions. It leaves at that But, kindly see that after the first sentence, every thing is left to a Parliamentary will. After saying that there will _be a Judicial Appointments Commission, every thing will be left, according to the second part of 124(a), to B a parliamentary legislation which is capable of being removed if the ruling party has one Member majority in both Houses of Parliament. Not only that, I understand that Parliament is not likely to do it, but it can do it and by a majority of one in both Houses, you can demolish the whole C thing and substitute it with a Judicial Commission which will consist of_only the Law Minister. So Sir my first objection is that this Bill is a Bill which is D intended to deal with the basic structure of the Constitution and. therefore. this Bill is void. {Time-bell) Second. if a Constitutional Amendment is not good enough for this purpose surely. an ordinary piece of legislation cannot do it. which ordinary piece of legislation can be removed only E by a majority of one in each House. It can be removed like the 30th July Food Security Ordinance and you can pass an Ordinance on that day and say that the whole Act is repealed and now the system will be that Judges will be appointed for the next six months by only the Law Minister F of India. If there was Mr. Kapil Sibal, ... (Interruptions) ... If Mr. Kapil Sibal becomes the Law Minister for ever, Sir, I will allow this Bill to go. (Time-bell) But I am not prepared to accept it for the future Law Ministers.' ... (Interruptions) ... Sir, let me take two more. minutes and tell all those G · Members that this Bill is not intended to ensure the judicial character. This Bill has nothing to do with the improvement of the judicial character. So long as the Judges are also h~man, there will be some Judges who will go wrong, who may go wrong. But a great Bar can control them ..... " H 312 SUPREME COURT REPORTS [2015] 13 S.C.R. A B Sir, I hope, people will avoid this kind of a tragedy in the life of this country. You are today digging the grave of the Constitution of India and the freedom of this country . ... (Interruptions) ... That's all I wished to say. ... (Interruptions) ... " It was submitted, that in the Raj ya Sabha 131 votes were cast in affirmation of the proposed Bill, as against the solitary vote of the learned counsel, against the same on 5.9.2013. It C was however pointed out, that the effort did not bear fruit, on account of the intervening declaration for elections to the Parliament.

31. Learned counsel thereafter, invited our attention to the statement of "Objects and Reasons" for the promulgation D of the Constitution (121 st Amendment) Bill, 2014. The Bill which eventually gave rise to the impugned Constftution (99th Amendment) Act, was taken up for consideration by the Lok Sabha on 13.8.2014, and was passed without much debate. It was submitted, that on the following day i.e., 14.8.2014, the E same was placed before the Rajya Sabha, and was again passed, without much dis£ussion. It was pointed out, that an issue, as serious as the one in hand, whi~h could have serious repercussions on the "independence of the judiciary", was sought to be rushed through. F

32. It was submitted, that the "Objects and Reasons" of the Constitution (99th Amendment)Act were painfully lacking, in the expression of details, which had necessitated the proposed/impugned constitutional amendment. It was G submitted, that it was imperative to have brought to the notice of the Parliament, that the Supreme Court had declared, that the "rule of law", the "separation of powers" and the "independence of the judiciary", were "salient and basic features" of the Constitution. And that, the same could not be H abrogated, through a constitutional amendment.And further SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.] 313 that, the Supreme Court had expressly provided for the primacy . A of the ChiefJustice of India, based on a decision of a collegium of Judges, with reference to the appointments and transfers of Judges of the higher judiciary.

33. It was submitted by Mr. Ram Jethmalani, tliat the B impugned constitutional amendment, so as to introduce Article · 124A ought to be described as a fraud on the Constitution itself. It was pointed out, that the first effort of introducing Article 124A was made by the previous Government, through the Constitution (120th Amendment) Bill, 2013. In the above Bill, c .Article 124Aalone (as againstArticles 124Ato 124C, presently. enacted) was introduced. ltwas submitted, that the Rajya Sabha passed the above Bill on 5.9.2013, when 131 Members of the Rajya Sabha supported the Bill (with only one Member opposing it). Learned counsel submitted, that he alone had D opposed the Bill. It was asserted, that the above fraud was sought to be perpetuated, through the passing of the Constitution (121stAmendment) Bill, 2014, by the Lok Sabha on 13.8.2014, and by the Rajya Sabha on 14.8.2014. It was pointed out, that Parliamentarians from different political E parties had joined. hands. Parliamentarian, he was in a position to assert, that the merits and demerits of the impugned amendment to the Constitution, were not debated, wh.en theE3ill was passed, because of the universal bias entertained by the legislature, against the F judiciary. It wa$ submitted, that prejudice and intolerance had arisen, because of the fact that the judiciary often interfered · with, a11d Qften effaced legislative action(s), as also, executive It was submitted, that as a · decision(s ). · 1 · 34. Learned senior counsel also asserted, that the · .Constitution (99th Amendment) Act, was wholly ultra vires, as it seriously infringed the "basic struct.ure/feature" of the Constitution i.e., the "independence of the judiciary". It was submitted, that the veracity of the above constitutional H G I ( \ 314 SUPREME COURT REPORTS [2015] 13 S.C.R. C A amendment, had to be examined in the light of Article 50. According to learned counsel, the politicization of the process of selection and appointment of Judges to the higher judiciary, would lead to a dilution of the "independence of the judiciary". It was submitted, that the inclusion of the Union Minister in B charge of Law and Justice, as an ex officio Member of the NJAC, had the effect of politicization of the process of appointment of Judges to the higher judiciary. It was pointed out, that the inclusion of the Union Minister in charge of Law and Justice within the framework of the NJAC, meant the introduction of the Government of the day, into the selection process. It was asserted, that the Union Minister's inclusion, meant surrendering one-sixth of the power of appointment, to the Government. It was submitted, that in order to understand the true effect of the inclusion of the Union Minister, into the process of selection and appointment of Judges to the higher judiciary, one had to keep in mind the tremendous amount of patronage, which the Uriion Minister for Law and Justice carries, and as such, it would be within the inference of the E Union Minister in charge of Law and Justice, to make the process fallible, by extending his power of patronage to support or oppose candidates, who may be suitable or unsuitable, to the Government of the day. Even though the Union Minister had been assigned only one vole, it was submitted, that he F could paralyse the whole system, on the basis of the authority he exercised. To drive home his contention, learned counsel made a reference to the introduction of the book "Choosing Hammurabi~ Debates on Judicial Appointments", edited by Santosh Paul. In the introduction to the book, the thoughts of 0 G H.L. Mencken are expressed in the following words: "But when politicians talk thus or act thus without talking. it is precisely the time to watch them most carefully. Their usual plan is to invade the constitution stealthily, and then wait to see what happens. If nothing happens they go on H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 315 more boldly· if there is a protest they reply hotly that the A constitution is worn out and absurd and that progress is impossible under the dead hand. This is the time to watch them especially. They are up to no good to anyone save themselves They are trying to whittle away the common rights of the rest of us. Their one and only object. now and B always is to get more power in to their hands that it may be used freely for their advantage. and to the damage of everyone else. Beware of all politicians at all times. but beware of them most sharoly when they talk of reforming and improving the constitution." c

35. Learned Senior Advocate also contended, that the inclusion of two "eminent persons" in the six-Member NJAC, as provided for, under Article 124A( 1) of the Constitution (99th Amendment) Act, was also clearly unconstitutional. It was D contended, that there necessarily had to be, an indication of the positive qualifications required to be possessed by the two "eminent persons", to be nominated to the NJAC. Additionally, it was necessary to stipulate disqualifications. Illustratively, it was pointed out, that an individual having a E conflict.of interest, should be disqualified. And such confli~t would be apparent, when the individual had a p'olitical role. A politician has to serve his constituency, he has to nourish and sustain his vote bank, and above all, he has to conform with the agenda of his. political party. Likewise, a person with F ongoing litigation, irrespective of the nature of such litigation, would render himself ineligible for serving as an "eminent person" within the framework of the NJAC, because of his conflict of interest.

36. With reference to the inclusion of two "eminent G persons" in the NJAC, Mr. Arvind P. Datar, learned Senior Advocate, invited our attention to Article 124A, whereunder, the above two "eminent persons" are to be nominated by a committee comprising of the Prime Minister, the Chief Justice H 316 SUPREME COURT REPORTS [2015] 13 S.C.R. B A of India and the Leader of Opposition in the House of People, or, where there is no such Leader of Opposition, then, leader of the single largest opposition party in the House of the People. · Learned counsel submitted, that neither Article 124A, nor any . other provision, and not even the provisions of the NJAC Act, · indicate the qualifications, of the two "eminent persons", who have been included amongst the six-Mernber NJAC. It was . · sought to be asserted, that in approximately 70 Statutes and Rules, the expression "eminent person" has been employed. Out of the 70 Statutes, in 67, the field in which such persons C must be eminent, has been clearly expressed. Only in three statutes, the term "eminent person" was used without any further qualification. It was asserted, that the term "eminent person" had been left vague and undefined, in Article 124A. It was submitted, that the vagueness of the term "eminent person" was itself, good enough to justify the striking down of the provision. It was emphasized, that the determinative role assigned to the two "eminent persons", included amongst the six-Member NJAC, was so important, that the same could not E be left to the imagination of the nominating committee, which comprised of just men" ... with all the failings, all the sentiments and all prejudices which we as common people have ... " (relying on the words of Dr. B.R. Ambedkar). 0

37. Referring to the second proviso under Section 5(2), F as well as, Section 6(6) of the NJAC Act, it was submitted, that a recommendation for appointment of a Judge, could not be carried out, if the two "eminent persons" did n·ot accede to the same. In case they choose to disagree with the other Members of the NJAC, the proposed recommendation could G not be given effect to, even though the other four Members of the NJAC including all the three representativ~s of the Supreme Court approved of the same. It was pointed out. that the two "eminent persons", therefore would have a decisive say. It was H further submitted, that the impact of the determination of the SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 317 two "eminent persons", would be such, as would negate the A . primacy hitherto before vested in the Chief Justice of India. It was pointed out, that a positive recommendation by the Chief Justice of India, supported by two other senior Judges of the Supreme Court (next to the Chief Justice of India), could be frustrated by an opposition at the hands of the two "eminent B persons". The above implied veto power, according to the learned counsel, could lead to structured bargaining, so as to persuade the other Members of the NJAC, to accede to the names of undesirable nominees Uust to avoid a stalemate of sorts). It was submitted, that such a composition had been C adversely commented upon by this Court in Union of India v. R. Gandhi38• In the judgment, the provision, which was subject matter of consideration, was Section 10-FX. Under the above provision, the Selection Committee for appointing the D Chairperson and Members of the Appellate Tribunal, and the President and Members of the Tribunal was to be comprised of the Chief Justice of India (or his nominee), besides four Secretaries from different Ministries~of the Union Government. This Court recorded its conclusions with reference to the E aforesaid provision in paragraph 120(viii), which is being extracted hereunder: "120(viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of F Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selectio_n Committee should broadly be on the following lines: G. (a) Chief Justice of India or his nominee """ Chairperson (with a casting vote); (b) A Senior Judge of the Supreme Court or Chief Justice of High Court - Member; 38 (2010) 11 sec 1 H 318 SUPREME COURT REPORTS [2015] 13 S.C.R. A (c) Secretary in the Ministry of Finance and Company Affairs -Member; and (d) Secretary in the Ministry of Law and Justice- Member." It was submitted, that the purpose sought to be achieved, was not exclusivity, but primacy. It is further submitted, that if B primacy was considered to be important for selection of Members to be appointed to a tribunal, primacy assumed a far greater significance, when the issue under consideration was appointment and transfer of Judges of the higher judiciary. It was accordingly contended, that the manner in which the composition of the NJAC had been worked out in Article 124A, and the manner in which the NJAC is to function with reference to the provisions of the NJAC Act, left no room for any doubt, that the same was in clear violation of the law laid down by this C 0 Court, and therefore, liable to be set aside.

38. Learned counsel on the above facts, contested not only the constitutional validity of clauses (c) and (d) of Article 124A(1 ), but also emphatica11y assailed the first proviso under Article 124A(1 )(d), which postulates, that one of the "eminent E persons" should belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities or Women. It was submitted, that these sort of populistic measures, ought not to be thought of, while examining a matter as important as the It was submitted, that it was not higher judiciary. F understandable, what the choice of including a person from one of the aforesaid categories was aimed at. In the opinion of learned counsel, the above proviso was farcical, and therefore, totally unacceptable. While members of a particular G community may be relevant for protecting the interest of their community, yet it could not be conceived, why such a measure should be adopted, for such an important constitutional responsibility. In the opinion of the learned counsel, the inclusion of such a Member in the NJAC, was bound to lead to H compromises. I SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 319

39. It was also the contention of Mr.Arvind P. Datar, that A Article 124C introduced by the Constitution (99th Amendment) Act, was wholly unnecessary. It was pointed out, that in the absence of Article 124C, the NJAC would have had the inherent power to regulate its own functioning. It was submitted, that Article.124C was a serious intrusion into the above inherent B power. Now that, the Parliament had been authorized to ·regulate the procedure for appointments by framing laws, it would also result in the transfer of control over the appointment process (-of Judges to the higher judiciary), to the Parliament. It was submitted, that there could not be any legislative control, C with reference to appointment of Judges to the higher judiciary. Such legislative control, according to learned counsel, would breach "independence of the judiciary". ltwas submitted, that the Parliament having exercised its authority in that behalf, by D framing the NJACAct, and having provided therein, the ultimate control with the Parliament, must be deemed to have crossed the line, and transgressed into forbidden territory, exclusively reserved for the judiciary. Learned counsel. contended, that the duties and responsibilities vested in a constitutional authority, E . could only be circumscribed by the Constitution, and not by the Parliament through legislation._ It was submitted, that the NJAC was a creature of the Constitution, as the NJAC flows out of Article 124A. Likewise, the Parliament, was also a creature of the Constitution. It was submitted, that one entity F which was the creation of the Constitution, could not regulate the other, owing its existence to the Constitution.

40. It was pointed out by Mr. Ram Jethmalani, learned Senior Advocate, that the statement of "Objects and Reasons", as were projected for the instant legislation, indicated inter G alia, that the NJAC would provide "a meaningful role to the. judiciary". It was submitted, that what was meant by the aforesaid affirmation, was not comprehendible to him. It was further highlighted, that it also asserted in the "Objects and H 320 SUPREME COURT REPORTS [2015] 13 S.C.R. A Reasons'', that "the executive and the eminent persons to present their viewpoints and make the participants accountable", was likewise unintelligible to him. It was submitted, that a perusal of the Constitution (99th Amendment) Act (as also, the NJAC Act) would not reveal, how the Members B of the NJAC were to be made responsible. It was further submitted, that the statement of "Objects and Reasons" also indicate, that the manner of appointment of Judges to the higher judiciary, would introduce transparency in the selection process. It was contended, that the enactments under C reference, amounted to commission of a fraud by Parliament, on the people of the country. As it was not possible to understand, how and who was to be made accountable - the executive, -the "eminent persons", -the judiciary itself. It was accordingly sought to be asserted, that the Parliament seemed to be asserting one thing, while it was doing something else. Learned counsel also placed reliance on Shreya Singhal v. Union of lndia39 , wherefrom the following observations were brought to our notice: 0 E F "50. Counsel for the Petitioners argued that the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall." Based on the above submissions, it was asserted, that the statement of "Objects and Reasons", could not have been more vague, ambiguous, and fanciful than the ones in the G matter at hand.

41. Mr. Anil B. Divan, Senior Advocate, while appearing for the petitioner in the petition filed by the Bar Association of India (Writ Petition (C) No.108 of 2015), first and foremost H "2015 (4) SCALE 1 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 321 pointed out, that the Bar Association of India represents th~ A High Court Bar Association, Kolkata (West Bengal), The Awadh Bar Association, Lucknow (Uttar Pradesh), the Madras Bar Association, Chennai (Tamil Nadu), the Supreme Court Bar Association, New Delhi, the Gujarat High Court Advocates' Association, Gandhinagar (Gujarat), the Advocates' B Association, Chennai (Tamil Nadu), theAndhra Pradesh High Court Advocates' Association, Hyderabad (Andhra Pradesh), the Delhi High Court Bar Association, New Delhi, the Bar Association Mumbai (Maharashtra), the Gauhati High Court Bar Association, Guwahati (Assam), the Punjab & Haryana C High Cou·rt Bar Association, Chandigarh (Punjab & Haryana), the Bombay Incorporated La~ Society, Mumbai (Maharashtra), the Madhya Pradesh High Court Bar Association, Jabalpur (Madhya Pradesh), the Advocates' Association Bangalore D (Karnataka), the Central Excise, Customs (Gold) Control Bar Association, New Delhi, the Advocates' Association, Allahabad (Uttar Pradesh), t~e Karnataka Advocates' Federation, Bangalore (Karnataka), the Allahabad High Court Bar Association (Uttar Pradesh), the Goa High Court Bar E Association, Panaji (Goa), the Society of India Law of Firms, New Delhi, the Chhattisgarh High Court Bar Association, Bilaspur (Chhattisgarh), the Nagpur High Court Bar Association, Nagpur (Maharashtra), the Madurai Bench of · Madras High Court Bar Association, Madurai (Tamil Nadu), F the Jharkhand High Court Bar Association, R~nchi (Jharkhand), the Bar Association of National Capital Region, New Delhi, and the Gulbarga High Court Bar Association, Gulbarga (Karnataka). It was submitted, that all the aforementioned Bar Associations were unanimous in their challenge, to the G Constitution (99th Amendment) Act, and the NJAC Act. It was submitted, that the challenge to the former was based on the fact that it violated the "basic structure" of the Constitution, and the challenge to the latter, was based on its being ultra vires the provisions of the Constitution. H 322 SUPREME COURT REPORTS [2015] 13 S.C.R. A

42. Learned counsel had adopted a stance, which was different from the <;me adopted by others. The submissions advanced by the learned senior counsel, were premised on the fact, that under the constitutional power of judicial review, the higher judiciary not only enforced fundamental rights, but B also restricted the legislature and the executive, within the confines of their jurisdiction(s). It was pointed out, that it was . the above power, which was the source of tension and friction between the judiciary on the one hand, and the two other pillars of governance i.e., the legislature and the executive, on the C other. This friction, it was pointed out, was caused on account 0 of the fact, that while discharging its responsibility of judicial . review, executive backed actions of the legislature, were sometimes invalidated, resulting in the belief, that the judiciary was influencing and dominating the other two pillars of governance. Illustratively, it was pointed out, that in the beginning of independent governance of the country, judicial review led to the setting aside of legislations, pertaining to land reforms and zamindari abolition. This had led to the E adoption of inserting legislations in the Ninth Schedule of the Constitution, so as to exclude them from the purview of judicial review.

43. It was submitted, that the first manifestation of a confrontation between the judiciary and the other two wings of F governance, were indicated in the observations recorded in State of Madras v. V.G. Row'0 , wherein, as far back as in 1952, the Supreme Court observed, that its conclusions were recorded, not out of any desire to a tilt at the legislative authority in a crusader's spirit, but in discharge of the duty plainly laid G upon the Courts, by the Constitution.

44. It was submitted, that the legislations placed in the Ninth Schedule of the Constitution, from the original 13 items (relating to land reforms and zamindari abolition), multiplied H "(1952) SCR 597 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.] 323 at a brisk rate, and currently numbered about 284. And many A of them, had hardly anything to do with land reforms. It was contended, that the decision rendered by this Court in l.C. Golak Nath v. State of Punjab41 , was a judicial reaction to the uninhibited insertions in the Ninth Schedule, leading to completely eclipsing fundamental rights. It therefore came to B be held in the I. C. Golak Nath case41 , that Parliament by way of constitutional amendment( s) could not take away or abrjdge fundamental rights.

45. To project his contention, pertaining to tension and c friction between the judiciary and the other two wings of governance, it was submitted, that from 1950 to 1973, there. was virtually no attempt by the political-executive, to undermine or influence or dominate over the judiciary. It was pointed out, . that during the aforesaid period, when Jawaharlal Nehru (upto o 27th May, 1964 ), Gulzari Lal Nanda (upto 9th June, 1964 ): Lal Bahadur Shastri (upto 11 1h January, 1966), Gulzari Lal Nanda (upto 24th January, 1966) .and Indira Gandhi (upto 1972) were running the executive and political governance in India, in their capacity as Prime Minister, had not taken any steps to E dominate over the judiciary. Thereafter, two facts could not be digested by the political-executive leadership. The first, the abolition of the Privy Purses ~Yan executive fiat, which was invalidated by the. Supreme Court in Madhavrao Scindia Bahadur v. Union of lndia42 rights case, namely, the Kesavananda Bharati case 10, wherein the Supreme Court by a majority of 7:6, had propounded the doctrine of "basic structure" of the Constitution, which limited the amending power of the Parliament, under Article 368. As a sequel to the above judgments, the executive attempted to G intimidate the judiciary, by the first supersession in the Supreme Court on 25.4.1973. Thereafter, internal emergency was • And the second, the fundamental F 41 AIR 1967 SC 1643 42 (1971) 1 sec a5 H 324 SUPREME COURT REPORTS [2015) 13 S.C.R. A declared on 25.06.1975, which continued till 21.03.1977. ltwas submitted, that during the emergency, by way of constitutional amendment(s), the power of judicial review vested in the higher judiciary, was sought to be undermined. It was submitted, that the intrusion during the emergency came to be remedied when the Janata Party came to power on 22.03.1977, through the 43rd and 44th Constitutional Amendments, which restored judieial review, to the original position provided for by the Constituent Assembly. B c

46. It was submitted, that in the recent past also, the exercise of the power of judicial review had been inconvenient for the political-executive, as it resulted in exposing a series of scams. In this behalf, reference was made to two judgments rendered by this Court, i.e., Centre for Public Interest Litigation o v. Union of lndia43 , and Manohar Lal Sharma v. Principal Secretary«. It was submitted, that the executive and the legislature can never appreciate that the power of judieial review has been exercised by the higher judiciary, as a matter of public trust. As a sequel to the above two judgments, it was E pointed out, that an amount of approximately Rupees two lakh crores (Rs. 20,00,00,00,00,000/-) was gained by the public exchequer, for just a few coal block allocations (for which reliance was placed on an article which had appeared in the Indian Express dated 10.3.2015). And an additional amount crores (Rs.11,00,00,00,00,000/-) was gained by the public exchequer from the spectrum auction (for which reliance was placed on an article in the Financial Express dated 25.03.2015). It was submitted, that the embarrassment faced by the political- G executive, has over shadowed the monumental gains to the nation. It was contended, that the Constitution (99th Amendment)Act, and the NJACAct, were truthfully a political- F of Rupees one thousand " (2012) 3 sec 1 H "(2014) 2 sec 532 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 325 executive device, to rein in the power of judicial review, to avoid A such discomfiture. 4 7. It was also contended, that while adjudicating upon · 8 • Referring to Shashikant Laxman Kale v. c the present controversy, it was imperative for this Court, to take into consideration the existing socio:.political conditions, the ground realities pertaining to the awareness of the civil society, and the relevant surrounding circumstances. These components, accordfng to learned counsel, were described as relevant considerations, for a meaningful judicial verdict in the V.G. Row case40 Union of lndia45 , it was contended, that for determining the purpose or the object of the legislation, it was permissible for a Court to look into the circumstances which had.prevailed at the time when the law was passed, and events which had necessitated the passing of the legislation. Referring to the D judgment rendered by this Court, in Re: the Special Courts Bill, 197846 , learned counsel placed emphatic reliance on the following: "106. The greatest trauma. of our times, for a developing country of urgent yet tantalising imperatives, is the E dismal, yet die-hard, poverty of the masses and the democratic, yet graft-riven, way of life of power-wielders. Together they blend to produce gross abuse geared to personal aggrandizement, suppression of exposure and a host of other horrendous, yet hidden, crimes by the F summit executives, pro tern, the para-political manipulators and the abetting bureaucrats. And the rule of law hangs limp or barks but never bites. An anonymous poet .sardonically projected the social G dimension .of this systemic deficiency: The law locks up both man and woman Who.steals the goose from off the common, H 326 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c D E F G But lets the greater felon loose Who steals the common from the goose. 107. The impact of 'summit' crimes in the Third World setting is more terrible than the Watergate syndrome as perceptive social scientists have unmasked. Corruption and repression-cousins in such situations hijack developmental processes.And, in the long run, lagging national progress means ebbing people's confidence in constitutional means to social justice. And so, to track down and give short shrift to these heavy weight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion. To punish such super-offenders in top positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law. This Bill, hopefully but partially, breaks new ground contrary to people's resigned cynicism that all high-powered investigations, reports and recommendations end in legislative and judicative futility, that all these valiant exercises are but sound and fury signifying nothing, that 'business as usual' is the signature tune of public business, heretofore, here and hereafter. So this social justice measure has my broad assent in moral principle and in constitutional classification, subject to the serious . infirmities from which it suffers as the learned Chief Justice has tersely sketched. Whether this remedy will effectively cure the malady of criminal summitry is for the future to tell. 108. All this serves as a backdrop. Let me unfold in fuller " (1990) 4 sec 366 "(1979) 1 sec 380 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 327 argumentation my thesis that the Bill. good so far as it A goes. is bad so far as it does not go-saved though by a pragmatic exception I will presently explain. Where the proposed law excludes the pre-and post-emergency ··crime-doers in the higher brackets and picks out only xxx' 'Emergency' offenders. its benign purpose perhaps B becomes a crypto cover up of like criminals before and after.· An 'ephemeral' measure to meet a perennial menace is neither a logical step nor national fulfilment. The classification. if I may anticipate my conclusion. is on the brink of constitutional break-down at that point C and becomes almost vulnerable to the attack of Article 14. 114. The crucial test is 'All power is a trust'. its holders D are 'accountable for its exercise'. for 'from the people. and for the people. all springs. and all must exist'. By this high and only standard the Bill must fail morally if it exempts non-Emergency criminals about whom prior Commission Reports, now asleep in official pigeon E holes. bear witness and future Commission Reports (who knows?) may. in time. testify. In this larger perspective, Emergency is not a substantial differentia and the Bill nearly recognises this by ante-dating the operation to February 27, ·1975 when there was no F 'Emergency'. Why ante-date if the 'emergency' was the critical criterion? 117. Let us take a close look at the 'Emergency', the vices it bred and the nexus they have to speedier justice, G substantial enough to qualify for reasonable sub classification. Information flowing from _the proceedings and reports of a bunch of high-powered judicial commissions shows that during that hushed spell, many H 328 SUPREME COURT REPORTS [2015) 13 S.C.R. A B c D E F G suffered shocking treatment. In the words of the Preamble, civil liberties were withdrawn to a great extent, important fundamental rights of the people were suspended, strict censorship on the press was placed andjudicial powers were curtailed to a large extent. . 128. Let us view the problem slightly differently. Even if liberty had not been curtailed, press not gagged or writ jurisdiction not cut down, criminal trials and appeals and revisions would have taken their own interminable delays. It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency. Such crimes were exposed by judicial commissions before, involving Chief Ministers and Cabinet Ministers at both levels and no criminal action followed except now and that of a select group. It was lack of will-not Emergency that was the villain of the piece in non-prosecution of cases revealed by several Commissions like the Commission of Enquiry appointed by the Government of Orissa in 1967 (Mr. Justice Khanna), the Commission of Enquiry appointed by the Government of J&K in 1965 (Mr. Justice Rajagopala Ayyangar), the Mudholkar Commission against 14 ex-United Front Ministers appointed by the Government of Bihar in 1968 and the T.L. Venkatarama Aiyar Commission of Inquiry appointed by the Government of Bihar, 1970-to mention but some. We need hardly say that there is no law of limitation for criminal prosecutions. Somehow, a few manage to be above the law and the many remain below the law. How? - I hesitate to state." Last of all, reliance was placed on the decision of this Court in Subramanian Swamy v. Director, Central Bureau of lnvestigation47 , wherein this Court extensively referred to the H "(2014) a sec ss2 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 329 conditions regarding corruption which prevailed in the country. A For the above purpose, it took into consideration the view expressed by the N.N. Vohra Committee Report, bringing out the nexus between the criminal syndicates and mafia. 8

48. Reliance was, then placed on the efforts made by the executive on the death of the first Chief Justice of India (after the promulgation of the Constitution), when Patanjali Sastri, J., who was the senior most Judge, was sought to be overlooked. Relying on recorded texts in this behalf, by Granville Austin, George H. Gadbois Jr. and M.C. Chagia, it c was submitted, that all the six Judges, at that time, had threatened to resign, if the senior most Judge was ~verlooked for appointment as Chief Justice of India.

49. Referring to the first occasion, when the convention was broken, by appointing AN. Ray, J., as the Chief Justice of D India, it was submitted, that the supersession led to public protest, including speeches by former Judges, former Attorneys General, legal luminaries and members of the Bar, throughout the country. M. Hidayatullah, CJ., in a public speech, complimented the three Judges, who were superseded, for E having resigned from their office, immediately on the appointment of AN. Ray, as Chief Justice of India. In the speech delivered by M. Hidayatullah, CJ., he made a reference about rumors being afloat, that the senior most Judge after him, F namely, J.C. Shah, J., would not succeed him as the Chief Justice of India.And that, an outsider was being broughtto the Supreme Court, as its Chief Justice. His speech highlighted the fact, that all except one sitting Judge of the Supreme Court had agreed to resign in the event of supersession of J.C. Shah, G J .. He had also pointed out, in his speech, that if the decision was taken by the executive, even a day before his retirement, he too would join his colleagues in resigning from his position as the Chief Justice of India. It was accordingly submitted, that the constitutional convention, that the senior most Judge of H ~ 330 SUPREME COURT REPORTS [2015] 13 S.C.R. A the Supreme Court would be appointed as the Chief Justice of India, was truly and faithfully recognized as an impregnable convention. To support the aforesaid contention, it was also pointed out, that even in situations wherein the senior most puisne Judge would have a very short tenure, the convention B had remained unbroken, despite the inefficacy of making such appointments. In this behalf, the Court's attention was drawn to the fact that J.C. Shah, CJ.(had a tenure of 35 days), K.N. Singh, CJ. (had a tenure of 18 days) and S. Rajendra Babu, CJ. (had a tenure of 2g days). c

50. It was also the contention of the learned senior counsel, th.at the executive is an important litigant and stakeholder before the higher judiciary, and as such, the executive ought to have no role, whatsoever, in the matter of o appointn]ents/transfers of Judges to the higher judiciary. In this behalf, learned counsel placed reliance on a number of judgments rendered by this Court, wherein \he participation of the executive in the higher judiciary, had been held to be unconstitutional, in the matter of appointments of Judges and · E other Members of tribunals, vested with quasi judicial functions. It was submitted, that the inclusion of the Union Minister in charge of Law and Justice in the NJAC, was a clear breach of the judgments rendered by this Court. Additionally, it was pointed out, that two "eminent persons", who were to be F essential components of the NJAC, were to be selected by a Committee, wherein the dominating voice was that of the It was pointed out, that in the three political leadership. MemberCommiltee authorised to nominate "eminent persons" included the Prime Minister and the Leader of the Opposition in the Lok Sabha, besides the Chief Justice of India. It was therefore submitted, that in the six-Member NJAC, three Members would have political-executive lineage. This aspect of the matter, according to the learned counsel, would have a H devastating affect. It would negate primacy of the higher G SUPREME COURT ADVOCATES~ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 331 judiciary, and the same would result in undermining the A "independence of the judiciary". Based on the above foundation, learned senior counsel raised a number of contentions. Firstly, it was submitted, that through the impugned constitutional amendment and the NJAC Act, the constitutional convention in this country, that the senior most B Judge of the Supreme Court would be appointed as the Chief Justice of India, had been breached. It was submitted, that the aboye convention had achieved the status of a constitutional axiom - a constitutional principle. To substantiate the above contention, it was submitted, that right from 26.01.1950, the C senior most puisne Judge of the Supreme Court has always · been appointed as the Chief Justice of India except on two occasions. Firstly, the above convention was breached, when A.N. Ray, J., was appointed as Chief Justice of India on 25.4.1973, by superseding three senior fDOSt Judges. It was submitted, that the aforesaid supersession was made on the day following the Supreme Court delivered the judgment in the KesavanandaBharati case 10 • Secondly, the supersession took place during the internal emergency declared by Prime E Minister, Indira Gandhi. At that juncture, M.H. Beg, J., was. appointed as Chief Justice of India on 29.1.1977, by superseding his senior H.R Khanna, J .. It was contended, that the aforesaid two instances should be considered as aberrations, in the convention pertaining to appointment of F Chief Justice of India. 0

51. Mr. Arvind P. Datar also assailed the constitutional validity of Article 124C, introduced by the Constitution (99th Amendment) Act. It was submitted, that the Parliament was delegated with the authority to "regulate the procedure for the G appointment of the Chief Justice of India and other Judges of the Supreme Court, and the Chief Justices and other Judges of the High Courts". And the NJAC was empowered to lay down, by regulation, "the procedure of discharging its own H 332 SUPREME COURT REPORTS [2015] 13 S.C.R. A functions, the manner of selection of persons for appointment, and such other matters, as may be considered necessary by it". It was the contention of the learned counsel, that the delegation of power contemplated under Article 124C, amounted to vesting the NJAC, with what was earlier vested B with the Chief Justice of India. In this behalf, reference was also made to Sections 11, 12 and 13 of the NJAC Act. The .power to make rules, has been vested with the Central Government under Section 11, and the power to make regulations has been entrusted to the NJAC under Secfion C 12. The aforementioned rules and regulations, as drawn by the Central Government/NJAC, are required to be placed before the Parliament under Section 13, and only thereafter, the rules and regulations were to be effective (or not to have any effect, or to have effect as modified). It was submitted, that the entrustment of the procedure of appointment of Judges to the higher judiciary, and also, the action of assigning the manner in which the NJAC would discharge its functions (of selecting Judges to the higher judiciary), with either the E executive or the legislature, was unthinkable, if "independence of the judiciary" was to be maintained. It was pointed out, that the intent behind Article 124C, in the manner it had been framed, stood clearly exposed, by the aforesaid provisions of the NJACAct. 0 F

52. Reference was also made to Section 12 of the NJAC Act, to highlight, that the NJAC had been authorized to notify in the Official Gazette, regulations framed by it, with the overriding condition, that the regulations so framed by the NJAC were to be consistent with the provisions of the NJAC G Act, as also, the rules made thereunder (i.e., under Section 11 of the NJAC Act). Having so empowered the NJAC (under Sections 11 and 12 referred to above), and having delineated in Section 12(2), the broad outlines with reference to which the regulations could be framed, it was submitted, that the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 333 power to delegate the authority to frame regulations clearly A stood exhausted. In that, the Parliament had no jurisdiction thereafter, to interfere in the matter of framing regulations. In fact, according to the learned counsel, consequent upon the empowerment of the NJAC to frame regulations, the Parliament was rendered functus officio, on the issue of framing B regulations. According to learned counsel, the above also established, the inference drawn in the foregoing paragraph.

53. It was also the contention of the learned counsel, that the NJAC constituted, by way of the Constitution (99th c Amendment) Act, would be sustainable, so long as it did not violate the "basic structure" of the Constitution. It was emphasized, that one of the recognized features of the "basic structure" of the Constitution was, the "independence of the judiciary". The procedure which the NJAC could adopt for D discharging its functions, and the procedure it was liable to follow while holding its meetings, and the ambit and scope with reference to which the NJAC was authorized to frame its regulations, had to be left to the exclusive independent will of an independent NJAC. That, according to learned counsel, E would have ensured the "independence of the NJAC". It was accordingly contended, that Article 124C breached the "independence of the judiciary", and also, undermined the independence of the NJAC. F

54. The next contention advanced at the hands of the learned counsel, was with reference to clause (2) of Article 124A, whereby judicial review was barred, with reference to actions or proceedings of the NJAC, on the ground of the existence of a vacancy or defect in the constitution of the G NJAC. Learned counsel then invited this Court's attention to the exclusion of the power of judicial review, contemplated under Articles 323A(2)(d) and 323B(3)(d), wherein the power of judicial review was similarly excluded. It was submitted, that this Court struck down a similar provision in ttie aforesaid H 334 SUPREME COURT REPORTS [2015] 13 S.C.R. A Articles, holding that the same were violative of the "basic structure" of the Constitution. In this behalf, learned counsel placed reliance on the decision of this Court in the Kihoto . Hollohan case 34 recorded therein: , and referred to the following observations B c D E F G H "129. The unanimous opinion according to the majority as well as the minority is that Paragraph 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution: and, therefore. ratification by the specified number of State legislatures before the Bill was presented to the President for his assent was necessarv. in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is Paragraph 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, Paragraph 7 alone is liable to be struck down rendering the Speakers' decision under Paragraph 6 that of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of Paragraph 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty second Amendment) Act, 1985 which inserted the Tenth Schedule since the President's assent to the Bill without prior ratification by the State legislatures is non est. The minority view also is that Paragraph 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 335 the remaining part of the Tenth Schedule is in excess of A the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution (Fifty-second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional amendment indicated therein." B Reliance was also placed on the following conclusions recorded by this Court in Dr. Kashinath G. Jalmi v. The Speaker48 • "43. In Kihoto Hollohan there was no difference between c the majority and minority opinions on the nature of finality attaching to the Speaker's order of disqualification made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the non-compliance of the proviso to clause 2 of Article 368 of the Constitution, D by which judicial review was sought to be excluded. The main difference in the two opinions was, that according to the majority opinion this defect resulted in the constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein. while according to E the minority the entire exercise of constitutional amendment was futile and an abortive attempt to amend the constitution sjnce Para 7 was not severable. According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were, therefore, nullity F and liable to be. ignored. According to the majority view, para 7 of the Tenth Schedule being unconstitutional and severable, the Tenth Schedule minus para 7 was validly enacted and, therefore, the orders made by the Speaker under the Tenth Schedule were not nullity but subject to G judicial review. On the basis of the majority opinion, this Court has exercised the power of judicial review over the orders of disgualification made by the speakers from the 46 AIR 1993 SC 1873 H 336 SUPREME COURT REPORTS (2015]13S.C.R. A B c very inception of the Tenth Schedule. and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th November. 1991 when the judgment in Kihoto Hollohan 11992 (1) SCC 309 ... ) was rendered. Venkatachaliah, J. (as he then was) wrote the majority opinion and, thereafter, on this premise, exercised the power of judicial review over orders of disqualification made prior to 12. 11. 1991. The basic fallacy in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to 12th November, 1991 since para 7 in express terms totally excludes judicial review." D It was, therefore, the vehement contention of the learned counsel, that clause (2) of Article 124Ashould be struck down, as being violative of the "basic structure" of the Constitution.

55. Mr. Fali S. Nariman, learned senior counsel, also raised a purely technical plea. It was his contention, that 121 st E Constitution Amendment Bill, now the Constitution (99th Amendment) Act, was introduced in the Lok Sabha on 11th of August, 2014 and was passed by the Lok Sabha on 13th of August, 2014. It was further submitted, that the 121st Constitution Amendment Bill was discussed and passed by F Rajya Sabha on 14.8.2014. Thereupon, the said Amendment Bill, which envisaged a constitutional amendment, was sent to the State Legislatures for ratification. Consequent upon its having been ratified by 16 State Legislatures, it was placed G before the President for his assent. It was pointed out, that the President accorded his assent on 31. 12.2014, whereupon, it became the Constitution (99th Amendment) Act. Learned counsel then invited our attention to Section 1 of the Constitution (99th Amendment) Act, which reads as under: H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 337 "1 (1) This Act may be called the Constitution (Ninety- A ninthAmendment)Act, 2014. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." Based on the aforesaid provision, it was contended, that B in spite of having received the assent of the President on 31.12.2014, the Constitution (99th Amendment) Act, would not come into force automatically. And that, the same would come into force in terms of the mandate contained in Section 1 (2), - C " ... on such date as the Central Government may, by notification in the Official Gazette, appoint." It was submitted, that the Central Government notified the Constitution (99th Amendment) Act, in the Gazette of India Extraordinary on 13.4.2015. Based on the aforesaid factual position, the D Constitution (99th Amendment) Act, came into force with effect from 13.4.2015.

56. In conjunction with the factual position noticed in the foregoing paragraph, learned counsel pointed out, that the NJAC Bill, was also introduced in the Lok Sabha on 11.8.2014. E The Lok Sabha passed the Bill on 13.8.2014, whereupon, it was passed by the Rajya Sabha on 14.8.2014. Thereafter, the NJAC Bill received the assent of the President on 31.12.2014, and became the NJAC Act. It was contended, that the enactment of the NJAC Act was based/founded on F the Constitution (99thAmendment)Act. It was submitted, that since the Constitution (99thAmendment)Act, was brought into force on 13.4.2015, the consideration of the NJAC Bill and the passing of the NJAC Act prior to the coming into force of the Constitution (99th Amendment)Act, would render it stillborn G and therefore nugatory. The Court's attention was also invited to the fact, that the aforesaid legal infirmity, was noticed and raised during the course of the parliamentary debate pertaining to the NJAC Bill, before the Rajya Sabha. Learned counsel H 338 SUPREME COURT REPORTS [2015) 13 S.C.R. invited this Court's attention to the following questions and answers, which are recorded on pages 442 to 533 with reference to the debates in the Rajya Sabha on 13.8.2014, and at pages 229 to 375 on 14.8.2014 (Volume 232 No.26 - and 27), as under: "that Mr. Sitaram Yechury, Member of Parliament, (Rajya Sabha) raised a constitutional objection (on August 13, 2014) to the NJAC Bill saying: " ....... till the Constitution Amendment (121~ Bill) comes into effect. the Legislature. I would like to humbly submit, does not have the right to enact a Bill for the creation of a Judicial Commission for appointments." (page 488) ''. ....... I am only asking you to seriously consider we are creating a situation where this proposal for creation of a Judicial Appointments Commission will become ultra vires of the Indian Constitution because our right to bring about a Bill to enact such a provision comes only after the Constitution Amendment Bill becomes effective." (page 489) " ........ Therefore. you please consider what I am saying with seriousness. I want also the law Minister to consider it. Let it not be struck down later as ultra vires. So. let us give it a proper consideration." (Page-490) - The Leader of the Opposition (Shri Ghulam Nabi Azad) then said: "The leader of the opposition (Shri Ghulam Nabi Azad): Sir, I just want to say that Mr. Yechury has given a totally different dimension to the entire thing. It is quite an eye opener for all of us that the entire legislation will become ultr vires. So, my suggestion is that before my colleague, Mr. Anand Sharma, speaks, I would request one thing. Of course, we have great lawyers from all sides here but I think one of the oldest luminaries in the legal profession is Mr. Parasaran. Before we all decide what to do, can we request A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.] 339 him to throw light on what Mr. Yechury has said? (Page- A 490) - Mr. K. Parasaran (Nominated Member) then gave his views saying: Shri K. Parasarn (contd.) ... Before ratification, if you take up the Bill and pass the Bill, today, it will be unconstitutional B and ultra vires. Because the power to make enactment, as we see, is only in the Articles. The Article 368 gives the power to .... )()()( )()()( )()()( Mr. Deputy Chairman: What I want to know is this. You C have mentioned that there are two provisions. Number one, if it is amended in a particular way, it can directly go to the President. If the amendment involves Chapter IV, part 5, or Chapter V, etc., etc., it has to be ratified by half in the D Assemblies. Okay. I accept both of them. But do any of these objections object us from considering this Bill now? Tha1 is my question. Shri K. Parasaran: No. We don't have the legislative competence. (Page-492) - The Minister of Law and Justice then said: " ..... This Bill will become effective after ratification but the separate Bill is for guidance to the Legislatures as to how the entire structure has come into existence. Therefore. it is not unconstitutional. We have got summary power under F Article 246 read with Entries 77 and 78, which is not a limited power. It is a plenary power, exhaustive power. This Parliament can pass any law with regard to composition and organization of the Supreme Court; this Parliament can pass any law with regard to High Court composition. G That is not a limited power ......... " (Page-495) Mr. Deputy Chairman: Yes, I will come .... (interruptions) .... Now, Mr. Minister, the point is that you yourself admit that only after 50 per cent of the Assemblies have endorsed it by a Resolution can your Bill come into force, and after the H E 340 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H It will President has given assent. And then, you are saying that the Bill was passed along with this only as a guideline, so that Members of the Assemblies know what you are going to do. Shri Ravi Shankar Prasad: But it would become effective after assent. That is all. Mr. Deputy Chairman: That's what I am saying. become effective after six months. Now, I would like to know one thing from Mr. Parasaran. Article 246, according to him, (the Minister) gives absolute powers to Parliament to pass a legislation. Is there any provision in the Constitution, which prevents passing of such a Bill before the Constitutional Amendment is endorsed by the President? Is there any such provision? ... (interruptions) .... I will come to you. Yes, Mr. Parasaran. (Page-495) - In response Mr. K. Parasaran then said: "Shri K. Parasaran: Sir, I would explain this. Now, we are concerned with Article 124 and a legislation under Article 246 read with the relevant entries in the Seventh Schedule, pointed out by the Hon. Minister. Now, the Supreme Court has interpreted Article 124. We cannot pass an Act contrary to that judgment and, therefore, the need for amendment to the constitution. If the Constitution is not amended, then we lack the legislative competence. There is no good of going to Article 246 and reading the entries. Had we the legislative competence, under Article 246 read with the entries .... (Emphasis supplied) page495. Mr. Deputy Chairman: Then, how do you explain Article 246? . . Shri K. Parasaran: Suppose the Constitutional Amendment is passed, then can this Bill be introduced and discussed as it is? As a hypothetical case, if this Amendment Bill is not passed, can we introduce this Bill and pass it? We will not be able to do it." (Emphasis supplied) (Page-496)." SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 341

57. In other words, it was the contention of the learned A counsel, that the NJAC Bill was passed by both Houses of Parliament, when Parliament had no power, authority or jurisdiction to consider such a Bill, in the teeth of Articles 124(2) and 217(1 ), as enacted in the original Constitution. It was · submitted, that the passing of the said Bill, was in itself B unconstitutional, ultra vires and void, because the amended provisions contained in the Constitution (99th Amendment) Act, had not come into play. It was submitted, that the passing by the Lok Sabha, as also, by the Rajya Sabha of the 121 st Constitution Amendment Bill on 13/14.8.2014, and the C ratification thereof by 16 State Legislatures, as also, the assent given thereto by the President on 31.12.2014, would not bestow validity on the NJAC Act. This, for the simple reason, that the Constitution (99th Amendment) Act, was brought into force only D on 13.4.2015. In the above view of the matter, according to the learned counsel, till 13.4.2015, Articles 124(2) and 217(1) of the Constitution of India were liable to be read, as they were originally enacted. In the aforesaid context, it was submitted, that the NJAC Act could not have been passed, till the E unamended provisions of the Constitution were in force. And that, the mere assent of the President to the NJAC Act on 31.12.2014, could not infuse validity thereon.

58. In order to substantiate the aforesaid contention, learned counsel placed reliance onA.K. Royv. Union of lndia49, F and invited our attention to the following: "45 The argument arising out of the provisions of Article 368(2) may be considered first. It provides that when a Bill whereby the Constitution is amended is passed by G the requisite majority, it shall be presented to the President who shall give his assent to the Bill, "and thereupon the Constitution shall stand amended in accordance with the terms of the Bill." This provision shows that a constitutional "(1982) 1 sec 271 H 342 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H amendment cannot have any effect unless the President gives his assent to it and secondly, that nothing more than the President's assent to an amendment duly passed by the Parliament is required, in order that the Constitution should stand amended in accordance with the terms of the Bill. It must follow from this that the Constitution stood amended in accordance with the terms of the 44th Amendment Act when the President gave his assent to that Act on April 30, 1979. We must then turn to that Act for seeing how and in what manner the Constitution stood thus amended. The 44th Amendment Act itself prescribes by Section 1 (2) a pre-condition which must be satisfied before any of its provisions can come into force. That pre-condition is the issuance by the Central Government of a notification in the official gazette, appointing the date from which the Act or any particular provision thereof will come into force with power to appoint different dates for different provisions. Thus, according to the very terms of the 44th Amendment, none of its provisions can come into force unless and until the Central Government issues a notification as contemplated by Section 1 (2): 46. There is no internal contradiction between the provisions of Article 368(2) and those of Section 1 (2) of the 44th Amendment Act. Article 368(2) lays down a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President. Section 1(2) oftheAmendmentAct specifies the manner in which that Act or any of its provisions may be brought into force. The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution. For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill. one has to turn to SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 343 B the date on which the President gave. or was obliged to A give. his assent to the Amendment. For determining the date with effect from which the Constitution. as amended. came or will come into force. one has to turn to the notification. if any, issued by the Central Government under Section 1 (2) of the Amendment Act. 4 7. The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come into force on a future date. Indeed, no objection can be taken to the constituent body C itself appointing a specific future date with effect from which the Amendment Act will come into force; and if that be so, different dates can be appointed by it for bringing into force different provisions of the Amendment Act. The point of the D matter is that the Constitution standing amended in accordance with the terms of the Bill and the amendment thus introduced into the Constitution coming into force are two distinct things. Just as a law duly passed by the legislature can have no effect unless it comes or is brought E into force. similarly. an amendment of the Constitution can have no effect unless it comes or is brought into force. The fact that the constituent body may itself specify a future date or dates with effect from which the Amendment Act or any of its provisions will come into force shows that F there is no antithesis between Article 368(2) of the Constitution and Section 1(2) of the 44thAmendmentAct. The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof. That is why it is difficult to accept the G submission that. contrary to the expression of the constituent will. the amendments introduced by the 44th Amendment Act came into force on April 30. 1979 when the President gave his assent to that Act. The true position is that the amendments introduced by the 44th Amendment H • 344 SUPREME COURT REPORTS [2015] 13 S.C.R. A B Act did not become a part of the Constitution on April 30, 1979. They will acquire that status only when the Central Government brings them into force by issuing a notification under Section 1 (2) of the Amendment Act." 59. It was also the contention of Mr. Fali S. Nariman, that just as a constitutional amendment was liable to be declared as ultra vires, if it violated and/or abrogated, the "core" or the "basic structure" of the Constitution; even a simple legislative enactment, which violated the "basic structure" of the Constitution, was liable to be declared as unconstitutional. C For the instant proposition, learned counsel referred to the Madras Bar Association case 35, and placed reliance on the following observations recorded therein: "109. Even though we have declined to accept the contention advanced on behalf of the Petitioners, premised on the "basic structure" theory, we feel it is still essential for us, to deal with the submission advanced on behalf of the respondents in response. We may first record the contention advanced on behalf of the respondents. It was contended, that a legislation (not being an amendment to the Constitution), enacted in consonance of the provisions of the Constitution. on a subject within the realm of the legislature concerned, cannot be assailed on the ground that it violates the "basic structure" of the Constitution. For the present controversy, the respondents had placed reliance on Articles 245 and 246 of the Constitution, as also,, on entries 77 to 79, 82 to 84, 95 and 97 of the Union List of the Seventh Schedule, and on entries 11-A and 46 of the Concurrent List of the Seventh Schedule. Based thereon it was asserted, that Parliament was competent to enact the NTT Act. For examining the instant contention. let us presume it is so. Having accepted the above, our consideration is as follows. The Constitution regulates the manner of governance in substantially minute detail. It is the fountainhead distributing power. for such governance. D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 345 c The Constitution vests the power of legislation at the A Centre with the Lok Sabha and the Rajya Sabha, and in the States with the State Legislative Assemblies (and in some States, the State Legislative Councils, as well). The instant legislative power is regulated by "Part XI" of the Constitution. The submission advanced at the hands of B the learned counsel for the respondents, insofar as the instant aspect of the matter is concerned, is premised on the assertion that the NTT Act has been enacted strictly in consonance with the procedure depicted in "Part XI" of the Constitution. It is also the contention of the learned counsel for the respondents, that the said power has been exercised strictly in consonance with the subject on which the Parliament is authorized to legislate. Whilst dealing with the instant submission advanced at the hands of the D learned counsel for the respondents, all that needs to be stated is. that the legislative power conferred under "Part XI" of the Constitution has one overall exception, which undoubtedly is that the "basic structure" of the Constitution. cannot be infringed, no matter what. On the instant aspect. E some relevant judgments rendered by Constitutional Benches of this Court, have been cited hereinabove. It seems to us, that there is a fine difference in what the petitioners contend, and what the respondents seek to project. The submission advanced at the hands of the F learned counsel for the petitioners does not pertain to lack of jurisdiction or inappropriate exercise of jurisdiction. The submission advanced at the hands of the learned counsel for the petitioners pointedly is, that it is impermissible to leg~slate in a manner as would violate the "basic structure" G of the Constitution. This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the "basic structure" of the Constitution, even though the amendment had been carried out by following the procedure contemplated under "Part H 346 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c . XI" of the Constitution. This leads to the d~termination that the "basic structure" is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure. and was within the domain of the enacting legislature. any infringement to the "basic structure" would be unacceptable. Such submissions advanced at the hands of the learned counsel for the respondents are. therefore liable to be disallowed. and are accordingly declined."

60. Mr. Arvind P. Datar, learned senior counsel, assailed the constitutional validity of various provisions of the NJAC Act, by advancing the same submissions, as were relied upon by him while assailing the constitutional validity of Articles 0 124A, 1248 and 124C. For reasons of brevity, the aforestated submissions noticed with reference to individual provisions of the NJAC Act are not being repeated again.

61. A challenge was also raised, to the different provisions of the NJAC Act. First and foremost, a challenge E was raised to the manner of selection of the Chief Justice of India. Section 5(1) of the NJACAct, it was submitted, provides that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief Justice of India, subject to the condition, that he was considered "fit" to F hold the office. It was contended, that the procedure to regulate the appointment of the Chief Justice of India, was to be determined by Parliament, by law under Article 124C. It was contended, that the term "fit", expressed in Section 5 of the G NJACAct, had not been elaborately described. And as such, fitness would have to be determined on the subjective. satisfaction of the Members of the NJAC. It was submitted, that even though the learned Attorney General had expressed, during the course of hearing, that fitness meant" ... mental and H . physical fitness alone ... ", it was always open to the Parliament SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 347 to purposefully define fitness, in a manner as would sub-serve A the will of the executive. It was submitted, that even an ordinance could be issued without the necessity, of following the procedure, of enacting law. It was asserted, that the criterion of fitness could be defined and redefined. It was submitted, that it was a constitutional convention, that the senior most B Judge of the Supreme Court would always be appointed as Chief Justice of India. And that, the aforesaid convention had remained unbroken, even though in some cases the tenure of the appointee, had been short, and as such, may not have enured to the advantage, of the judicial organization as a whole. C Experience had shown, according to learned counsel, that adhering to the practice of appointing the senier most Judge as the Chief Justice of India, had resulted in institutional harmony amongst Judges, which was extremely important for D the health of the judiciary, and also, for the "independence of the judiciary". It was submitted, that it would be just and appropriate, at the present juncture, to understand the width of the power, so as to prevent any likelihood of its misuse in future. It was submitted, that various ways and means could be E devised to supersede Judges, and also, to bring in favourites. Past experience had shown, that the executive had abused its authority, when it departed from the above rule in April 1973, by superseding J.M. Shelat, J., the senior most Judge and even the next two Judges in the order of seniority after him, F namely, K.S. Hegde and A.N. Grover, and appointed the fourth senior most Judge A.N Ray, as the Chief Justice of India. Again in January 1977 on the retirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, was ignored, and the next senior most Judge, M.H. Beg, was appointed as the Chief Justice of G India. Such control in the hands of the executive would cause immense inroads, in the decision making process. And could result in; Judges trying tO placate and appease the executive, for personal gains and rewards. H 348 SUPREME COURT REPORTS [2015] 13 S.C.R. A C B 0

62. The submission noticed above was sought to be illustrated through the following instance. It was pointed out, that it would be genuine and legitimate for the Parliament to enact, that a person would be considered fit for appointment as Chief Justice of India, only if he had a minimum remaining tenure of at least two years. Such an enactment would have a devastating effect, even though it would appear to be innocuously legitimate. It was contended, that out of the 41 Chief Justices of India appointed till date, only 12 Chief Justices of India, had a tenure of more than two years. Such action, at the hands of the Parliament, was bound to. cause discontentment to those, who had a legitimate expectation to hold the office_of Chief Justice of India. It was submitted, that similar instances can be multiplied with dimensional alterations by prescribing different parameters. It was submitted, that the Parliament should never be allowed the right to create uncertainty, in the matter of selection and appointment of the Chief Justice of India, because the office of the Chief Justice of India was pivotal, as it shouldered extremely serious and E onerous responsibilities. The exercise of the above authority, it was pointed out, could/would seriously affect the "independence of the judiciary". In the above context, reference was also made, to the opinion expressed by renowned persons, having vast experience in the judicial institution, F effectively bringing out the veracity of the contention advanced. Reference in this regard was made to the observations of M.C. · Chagla, in his book, "Roses in December-An Autobiography'', wherein he examined the impact of supersession on Judges, who by virtue of the existing convention, were in line to be the G Chief Justice of India, but were overlooked by preferring a junior. Reference was also made to the opinion expressed by H.R. Khanna, J., (in his book- "Neither Roses Nor Thorns"). Finally, the Court's attention was drawn to the view expressed by H.M. Seervai (in "Constitutional Law of India -A Critical H Commentary'). It was submitted, that leaving the issue of / SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 349 determination of fitness with the Parliament, was liable to fan A the ambitions of Judges, and would make them loyal to those who could satisfy their ambitions. It was therefore the contention of the learned counsel, that Section 5, which created an ambiguity in the matter of appointment of the Chief Justice of India, and could be abused to imperil "independence of the B judiciary'', was liable to be declared as unconstitutional.

63. It was also the contention of the learned counsel for the petitioners, that on the issue of selection and appointment of Judges to the higher judiciary, the NJAC was liable to take c into consideration ability, merit and suitability (as may be specified by regulations). It was submitted, that the above criteria could be provided through regulatioi;is framed under Section 12(2)(a), (b) and (c). It was pointed out, that the regulations framed for determining the suitability of a Judge D (with reference to ability and merit), would be synonymous with the conditions of eligibility. Inasmuch as, a candidate who did not satisfy the standards expressed in the regulations, would also not satisfy, the prescribed conditions of appointment. It was asserted, that it would be a misnomer to treat the same to E be a matter of mere procedure. Thus viewed, it was contended, that the provisions of the NJAC Act, which laid down (or provided for the laying down) substantive conditions for appointment, was clearly beyond the purview of Article 124C, inasmuch as, under the above provision, Parliament alone had F been authorised by law, to regulate the procedure for appointment of Judges of the Supreme Court, or to empower the NJAC to lay the same down by regulations, inter alia the manner of selection of persons for appointment, as Judges of the Supreme Court. It was submitted, that the NJAC Act, G especially in terms of Section 5(2), had travelled far beyond the jurisdictional parameters contemplated under Article 124C.

64. It was also contended, that while recommending names for appointment of a Judge to the Supreme Court, H 350 SUPREME COURT REPORTS [2015] 13 S.C.R. A seniority in the cadre of Judges, was liable to be laken into consideration, in addition to ability and merit. It was submitted, that the instant mandate contained in the first proviso under Section 5(2) of the NJAC Act, clearly breached the "federal structure" of governance, which undoubtedly required regional representation in the Supreme Court. Since the "federal structure" contemplated in the Constitution was also one of the "basic structures" envisioned by the framers of the Constitution, the same could not have been overlooked. B c

65. Besides the above, the Court's attention was invited to the second proviso, under Section 5(2) of the NJAC Act, which mandates that the NJAC would not make a favourable recommendation, if any two Members thereof, opposed the candidature of an individual. It was contended, that placing o the power of veto, in the hands of any two Members of the NJAC, would violate the recommendatory power expressed in Article 1248. In this behalf, it was contended, thatthe second proviso under Section 5(2), would enable two eminent persons (- lay persons, if the submission advanced by the learned E Attorney General is to be accepted) to defeat a unanimous opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court. And thereby negate the primacy vested in the judiciary, in the matter of appointment of Judges to the higher judiciary. F

66. It was submitted, that the above power of veto . exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause a serious breach in the "independence G of the judiciary". Most importantly, itwascontended, thatneither the impugned constitutional amendment, nor the provisions of the NJAC Act, provide for any quorum for holding the meetings of the NJAC. And as such (quite contrary to the contentions advanced at the hands of the learned Attorney General), it was H contended, that a meeting of the NJAC could not be held, SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 351 without the presence of the all Members of the NJAC. In order A to support his above contention, he illustratively placed reliance on the Constitution (122ndAmendment) Bill, 2014 [brought before the Parliament, by the same ruling political party, which had successfully amended the Constitution by tabling the Constitution (121 st Amendment) Bill, 2014]. The objective B sought to be achieved through the Constitution (122nd Amendment) Bill, 2014, was to insert Article 279A. The proposed Article 279A intended to create the Goods and Services Tax Council. Sub-Article (7) of Article 279A postulated, that" ... One-half of the total number of Members c of the Goods and Services Tax Council. .. " would constitute the quorum for its meetings. And furthermore, that" ... Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the "weighted votes of the members present and voting ... ". Having laid down the above parameters, in the Bill which followed the Bill that led to the promulgation of the Constitution (99th Amendment) Act, it was submitted, that the omission of providing for a quorum for the functioning of the NJAC, and the omission to quantify the strength required for valid decision making, was not innocent. And that, it vitiated the provision itself. D E Ill. BESPONDENIS' RESPONSE, ON MEBIJS: F

67. The learned Attorney General commenced his response on merits by asserting, that there was no provision in the Constitution of India, either when it was originally drafted, or at any stage thereafter, which contemplated, that Judges would appoint Judges to the higher judiciary. It was accordingly G asserted, that the appointment of Judges by Judges was foreign to the provisions of the Constitution. It was pointed out, that there were certain political upheavals, which had undermined the "independence of the judiciary", including ··executive overreach, in the matter of appointment and transfer H ' 352 SUPREME COURT REPORTS [2015] 13 S.C.R. A of Judges of the higher judiciary, starting with supersession of senior Judges of the Supreme Court in 1973, followed by, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and thereafter, the second supersession It was of a senior Judge of the Supreme Court in 1977. B acknowledged, that there was continuous interference by the executive, in the matter of appointment of Judges to the higher judiciary during the 1980's. Despite thereof, whilst adjudicating upon the controversy in the First Judges case rendered in 1981, this Court, it was pointed out, had remained unimpressed, and reiterated the primacy of the executive, in the matter of appointment of Judges to the higher judiciary. C

68. It was pointed out, that the issue for reconsideration of the decision rendered in the First Judges case arose in o Subhash Sharma v. Union of lndia4, wherein the questions• considered were, whether the opinion of the Chief Justice of India, in regard to the appointment of Judges to the Supreme Court and High Courts, as well as, transfer of High Court Judges, was entitled to primacy, and also, whether the matter E of fixation of the judge-strength in High Courts, was justiciable? It was asserted, that the aforesaid two questions were placed for determination by a Constitution Bench of nine Judges (keeping in view the fact that the First Judges case, was decided by a seven-Judge Bench). It was asserted, that the F decision rendered by this Court in the Second Judges case, was on the suo motu exercise of jurisdiction by this Court, wherein this Court examined matters far beyond the scope of the reference order. It was contended, that the Second Judges case was rendered, without the participation of all the G stakeholders, inasmuch as, the controversy was raised at the behest of practicing advocates and associations of lawyers, and there was no other stakeholder involved during its hearing.

69. It was asserted, that the judiciary had no jurisdiction to assume to itself, the role of appointment of Judges to the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.] 353 higher judiciary. It was pointed out, that it is the Parliament A alone, which represents the citizenry and the people of this country, and has the exclusive jurisdiction to legislate on matters. Accordingly, it was asserted, that the decisions in the Second and Third Judges cases, must be viewed as legislation without any jurisdictional authority. B h C

70. It was pointed out, that the issue relating to the amendment of the Constitution, pertaining to the subject of appointment of Judges to the higher judiciary, through a Judicial Commission commenced with the Constitution (67 1 Amendment) Bill, 1990. The Bill however lapsed. On the same subject, the Constitution (82nd Amendment) Bill, 1997 was introduced. The 1997 Bill, however, could not be passed. This was followed by the Constitution (98th Amendment) Bill, 2003 which was introduced when the present Government was in D power. In 2003 itself, a National Commission was set up to review the working of the Constitution, followed by the Second Administrative Reforms Commission in 2007. Interspersed with the aforesaid events, were a number of Law Commission's Reports. The intention of the Parliament, since the introduction E of the Bill in 1990, it was submitted, was aimed at setting up a National Judicial Commission, for appointment and transfer of Judges of the higher judiciary. It was pointed out, that no positive achievement was made in the above direction, for well over two decades. Mr. Justice M.N. Venkatachaliah, who F headed the National Commission to review the working of the Constitution, had also recommended a five-Member National Judicial Commission, whereby, a wide consultative process was sought to be introduced, in the selection and appointment of Judges. It was submitted, that all along recommendations G were made, for a participatory involvement of the executive, as well as the judiciary, in the matter of appointment of Judges to the higher judiciary. It was also pointed out, that the Constitution (981 h Amendment) Bill, 2003 proposed a seven Member National Judicial Commission. Thereafter, the H 354 SUPREME COURT REPORTS [2015] 13S.C.R. A Administrative Reforms Commission, proposed a eight Member National Judicial Commission, to be headed by the Vice-President, and comprising of the Prime Minister, the Speaker, the Chief Justice of India, the Law Minister and two leaders of the Opposition. The aforesaid recommendation, B was made by a Commission headed by Vee rap pa Moily, the then Union Law Minister. The present Constitution (99th Amendment) Act, 2014, whereby Article 124 has been amended_ and Articles 124A to 124C have been inserted in the Constitution, contemplates a six-Member National Judicial C Commission. It was submitted, that there was no justification in finding anything wrong, in the composition of the NJAC. To point out the safeguards against entry of undesirable persons into the higher judiciary, it was emphasized, that only if five of the six Members of the NJAC recommended a candidate, he could be appointed to the higher judiciary. It was submitted, that the aforestated saf~guards, postulated in the amended provisions, would not only ensure transparency, but would also render a broad based consideration. 0 E

71. As a counter, to the submissions advanced on behalf of the petitioners, it was asserted, that the Parliament's power to amend the Constitution was plenary, subject to" only one restriction, namely, thatthe Parliament could not alter the "basic structure" of the Constitution. And as such, a constitutional F amendment must be presumed to be constitutionally valid (unless shown otherwise). For the instant proposition, reliance was placed on Charanjit Lal Chowdhury v. Union of lndia 50 , Ram Krishna Dalmia v. Justice S.R. Tendolkar51, the Kesavananda Bharati case 10 , (specifically the view expressed G by K.S. Hegde and A.K. Mukherjea, JJ.), B. Banerjee v. Anita , and Government of Andhra Pradesh v. P. Laxmi Devi53 • Pan52 ORDER MADAN B. LOKUR, J. 1. I have had the benefit of going through the draft order prepared by my learned brothers Justice G Khehar, Justice Chelameswar and Justice Kurian Joseph.· 90 Thomas Babington Macaulay's address on 2"' March 1831 in the House of Commons on Parliamentary Reforms H 622 SUPREME COURT REPORTS [2015] 13S.C.R. A While endorsing the view expressed by my learned brothers Justice Khehar and Justice Chelameswar, I would like to add a few words on the procedural aspect of dealing with an application for recusal.

2. Justice Khehar has mentioned in Paragraph 17 of the B draft order as follows:- "The decision to remain as a member of the reconstituted Bench was mine, and mine alone." C

3. In my respectful opinion, when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision. D

4. In a .detailed order pronounced in Court on its own motion v. State & Others1 reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America2 , wherein it was held that a complaint as to the E qualification of a justice of the Supreme Court to take part in the decision of a cause cannot properly be addressed to the Court as a whole and it is the responsibility of each justice to determine for himself the propriety of withdrawing from a case. F

5. This view was adverted to by Justice Rehnquist in Hanrahan v. Hampton 3 in the following words:- "Plaintiffs-respondents and their counsel in these cases have moved that I be recused from the proceedings in this case for the reasons stated in their 14-page motion and their five appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state- 1 MANU/DE/9073/2007 2 325 us 897 (1945) J 446 us 1301 (1980) G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 623 defendant petitioners in the action. Since generally the A Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall B treat the motion as addressed to me individually. I have considered the motion, the Appendices, the response of the state defendants, 28 U.S.C. 455 (1976 ed. And Supp. II), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly c denied."

6. The issue of recusal may be looked at slightly differently apart from the legal nuance. What would happen if, in a Bench of five judges, an application is moved for the recusal of Judge A and after hearing the application Judge A decides D to recuse from the case but the' other four judges disagree and express the opinion that there is no justifiable reason for Judge A to recuse from the hearing? Can Judge A be compelled to hear the case even though he/she is desirous of recusing from the hearing? It is to get over such a difficult E situation that the application for recusal is actually to an individual judge and not the Bench as a whole. \

7. As far as the view expressed by Justice Kurian Joseph that reasons should be given while deciding an application for F recusal, I would prefer not to join that decision. In the first place, giving or not giving reasons was not an issue before us. That reasons are presently being given is a different matter altogether. Secondly, the giving of reasons is fraught with some difficulties. For example, i.t is possible that in a given case, a G learned judge of the High Cou~ accepts an application for his/ her recusal from a case and one of the parties challenges that order in this Court. Upon hearing the parties, this Court comes to the conclusion that the reasons given by the learned judge H 624 SUPREME COURT REPORTS [2015] 13 S.C.R. A were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hearthe case even though he/she genuinely believes that he/she should not hear the case?

8. The issue of recusal from hearing a case is not as B simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid C embarrassment to other judges on the Bench. JUDGMENT MADAN B. LOKUR, J. 1. The questions for consideration are: Firstly, whether the Constitution (Ninety-ninth D Amendment) Act, 2014 which substitutes and replaces the extant procedure for the appointm.ent of judges of the Supreme Court and the High Courts with a radically different procedure impinges on the independence of the judiciary and violates the basic structure of the Constitution; Secondly, whether the E National Judicial Appointments Commission Act, 2014 is a constitutionally valid legislation. Amendment) Act, 2014 (for short the 99 1

2. In my opinion, the Constitution (Ninety-ninth h Constitution F Amendment Act) alters the basic structure of the Constitution by introducing substantive changes in the appointment of judges to the Supreme Court and the High Courts and rewriting Article 124(2) and Article 217(1) of the Constitution, thereby seriously compromising the independence of the judiciary. G Consequently, the ggth Constitution Amendment Act is unconstitutional. Since the 991h Constitution Amendment Act is unconstitutional, the National Judicial Appointments Commission Act, 2014 (for short the NJACAct) which is the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 625 h Constitution Amendment Act cannot A child of the 99 1 independently survive on the statute books. Even otherwise, it violates Article 14 of the Constitution by enabling substantive arbitrariness in the appointment of judges to the Supreme Court and the High Courts. B

3. Having had the benefit of reading the draft judgment of Justice Khehar, Justice Kurian Joseph and Justice Adarsh Kumar Goel, I am in respectful agreement with the conclusions arrived at with regard to the constitutional validity of the 991h Constitution Amendment Act but prefer to supplement them c with additional reasons. I am in respectful disagreement with the view of Justice Chelameswar. I believe all the submissions made by various learned counsel led by Mr. Fali S. Nariman on .behalf of the petitioners and by Mr. Mukul Rohatgi the learned Attorney-General on behalf of the respondents have D been noted and dealt with by Justice Khehar in his draft judgment and in respect of some of them, I have nothing to add to what has already been said. Historical background .E

4. George Santayana, philosopher, essayist, poet and novelist is believed to have said something to the effect that: 'Those who do not remember their past are condemned to repeat their mistakes.' Keeping this in mind, it is essential to appreciate the evolution of the process for the appointment of F judges in the Indian judiciary, the various alternatives discussed and debated and then to consider and analyze the solution given by the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. This is important for another reason - some of the 'mistakes' G made before Constituent Assembly accepted the Constitution of India, have been revived and enacted, even though the Constituent Assembly debated and rejected them. H 626 SUPREME COURT REPORTS [2015] 13 S.C.R. A

5. Section 101 of the Government of India Act, 1919 provided for the appointment of the Chief Justice and judges of the High Court and Section 102 provided for their tenure. It was provided that the appointment shall be made by His Majesty and the judge shall hold office 'during His Majesty's B pleasure.' Since the appointment process and the tenure of a judge depended upon the Crown's pleasure, perhaps the issue of the independence of the judiciary was not the subject of discussion in India. In any event, nothing was pointed out in this regard one way or the other during the submissions made C by learned counsel.

6. The Government of India Act, 1935 partially changed the procedure for the appointment of judges to the High Courts and introduced a procedure for the appointment of judges to o the Federal Court constituted by the said Act. Section 200 and 201 dealt with the appointment of judges of the Federal Court and while the Crown continued to make the appointments (apparently without any formal consultation process); their tenure was fixed at the age of 65 years. Removal of a judge E was possible only on the ground of misbehavior or of infirmity of mind or body. Section 201 provided for the salary, allowances, leave and pension of a judge and this could not be varied to his/her disadvantage after appointment. Section 220 and 221 related to the appointment of a judge of the High F Court and the provisions thereof were more or less similar to the appointment of a judge of the Federal Court.

7. The Government of India Act, 1935 gave a semblance of an independent judiciary in that it provided some basic requirements of independence such as eligibility for appointment, security of tenure including the removal process, assurance of salary, allowances and pension etc. Again, nothing specific was shown to us, one way or the other, which could throw light on the contemporaneous practice regarding G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 627 the appointment process or the independence of the judiciary. A A general practice on the appointment of judges was, however, subsisting and this has been adverted to by the Supreme Court of Pakistan in Al-Jehad Trust v. Federation of Pakistan. 1 It was observed that ever since 1911 when the Indian High Courts Act was enacted and certainly from 1915/1919 onwards when B the Government of India Act was enacted, the recommendation of the Chief Justice for the appointment of a judge was accepted even though the appointment of a judge was a matter of the pleasure of the Crown. ltwas said: "Act of appointment of a Chief Justice or a Judge in the superior Court is an executive act. No doubt this power is vested in the Executive under the relevantArticles of the Constitution, butthe question is, as to how this power is to be exercised. Conventions can be pressed into service while construing a provision of the Constitution and for channelising and regulating the exercise of power under the Constitution: whereas undertt}e Islamic Jurisprudence, a convention which is termed as Urf has a binding force on the basis of various Islamic sources, it has been a consistent practice which has acquired the status of convention during pre partition days of India as well as post partition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases. The practice of consultation of the Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts Act [1911] as well as under the 1 PLD 1996 SC 324 (Five Judges Bench) c D E F G H 628 SUPREME COURT REPORTS [2015] 13S.C.R. A B Government of India Act 1915, though the appointment of Judges of superior Courts in India was a matter of pleasure vested in the Crown. The recommendations of the Chief Justices even in those days were accepted as a matter of course." Sapru Committee D

8. The issue of the appointment of judges (for Independent India) first came up for discussion (as itappears) before the Sapru Committee. A Report prepared by this C Committee in 1945 dealt with the Legislature, the Executive and the Judiciary in Chapter V thereof. The relevant paragraphs pertaining to the appointment of judges are paragraphs 259, 261 and 268. 2 The Committee was of the opinion that the independence of the judiciary is of 'supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the well-being of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province.' It was dearth at it desired to secure the 'absolute independence' of the High Court and to put the judges above party politics or influences. The Committee proposed a limited consultative system of appointment of judges completely leaving out the Legislature F and the Executive. The Committee proposed consultation only between the Head of the State and the Chief Justice of India for appointments to the Supreme Court and for the High Courts, in addition, the Head of the Unit (Province) and the Chief Justice of the High Court. The relevant paragraphs of the Report read E G as follows: "259. In our Recommendation No.13 we first recommend that there shall be a Supreme Court 'https://archive.org/stream/saprucommittee035520mbp/saprucommittee 035520mbp djvu txt H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 629 for the Union and a High Court in each of the units. Then in the second clause we recommend that the strength of judges in each of these Courts at the inception of the Union as well as the salaries to be paid to them shall be fixed in the Constitution Act and no modification in either shall be made except on the recommendation of the High Court, the Government concerned and the Supreme Court and with the sanction of the Head of the State, provided, however, that the salary of no judge shall be varied to his disadvantage during his term of office. In sub-clause (3) we recommend:- "(a) The Chief Justice of India shall be appointed by the Head of the State and the other judges of the Supreme Court shall be appointed by the Head of the State in consultation with the Chief Justice of India." "(b) The Chief Justice of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit and the Chief Justice of India." "(c) Other judges of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit, the Chief Justice of the High Court concerned and the ChiefJustice of India."

261. Our main object in making these recommendations is to secure the absolute independence of the High Court and to put them above party politics or influences. Without some such safeguards, it is not impossible that a Provincial Government may under political pressure A B c D E F G H 630 SUPREME COURT REPORTS [2015) 13S.C.R. affect prejudicially the strength of the High Court within its jurisdiction or the salary of its Judges. If it is urged that the High Court and the Government concerned will be more or less interested parties in the matter, the intervention of the Supreme Court and of the Head of the State would rule out all possibility of the exercise of political or party influences. The imposition of these conditions, may, on a superficial view, seem to be inconsistent with the theoretical autonomy of the Provinces, but, in our opinion, the independence of the High Court and of the judiciary generally is of supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the well-being of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province.

268. We now come to the method of appointment of Judges. Under the existing law Judges of High Courts and of the Federal Court are appointed by the Crown. We have recommended that the Chief Justice of India should be appointed by the Head of the State. In this connection we would refer to our discussion of the phrase 'Head of the State' in Chapter VI. Similarly we have recommended that the other Judges of the Supreme Court shall be appointed by the Head of the State in consultation with the Chief Justice of India. The Chief Justice of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit and the Chief Justice of India, and the other judges of a A 8 c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] High Court shall be appointed by the Head of the State in consultation with the Head of the Unit, the Chief Justice of the High Court concerned and the Chief Justice of India. We have deliberately placed the appointment of these Judges, including Judges of the Provincial High Courts outside the purview of party politics, and we make the same observations as above in justification of this provision notwithstanding its seeming interference with the theoretical autonomy of the Provinces." 631 A B c

9. As mentioned, 'Head of State' was discussed in Chapter VI of the Report and in so far as the judiciary is concerned, the Head of State was expected to act 'on his own' as the occupant of the office of Head of State and not on the advice of the Federal Ministry. More specifically, the Head of D State was to act on his/her own in the matter of appointment and removal of judges. This is what was said in the Report: ''The Union will be a democratic federal State and the Head of the State who will replace both the Governor-General and the Crown Representative and might be given a suitable indigenous designation, if necessary should exercise such functions as are given to him only on the advice of his Federal Ministry, barring a few very exceptional cases, to be specifically mentioned in the Constitution Act, where discretion is given to him to act on his own or on advice other than that of the Federal Ministry (1) for avoiding political or communal graft, or (2) for taking the initiative in the national interest, especially in exceptional and fast moving situations such as exist at the present day. Under exception (1) will fall the suggestions we have made under paragraph 13 of our recommendations E. F G H 632 SUPREME COURT REPORTS [2015] 13 S.C.R. A as regard the alteration of the strength of High Courts and the appointment and removal of judges of the Supreme Court and the High Courts."3 Ad hoc Committee on the Supreme Court B

10. After the Constituent Assembly was formed, an Ad hoc Committee on the Supreme Court was set up which presented its Report of 21st May, 194 7 to the Constituent Assembly. Paragraph 14 of the Report is of relevance to the issue of appointment of judges of the Supreme Court. It C accepted, in principle, the qualification for the appointment of judges to the Supreme Court, as mentioned in the Government of India Act, 1935 but found it inexpedient 'to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union.' It made two D suggestions in the appointment procedure, both of which necessitated consultation between the President and the Chief Justice of India and the opinion of a panel of 11 (eleven) persons comprising of, inter alia, some Chief Justices of the High Courts, some members of both the Houses of the Central .. E Legislature and some law officers of the Union. It was proposed that the executive be kept out of the appointment process. The said paragraph reads as follows: F G "14. The qualifications of the judges of the Supreme Court may be laid down on terms very similar to those in the Act of 1935 as regards the judges of the Federal Court, the possibility being borne in mind (as in the Act of 1935) that judges of the superior courts even from the States which may join the Union may be found fit to occupy a seat in the Supreme Court. We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion H ' Paragraph 288 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 633 of the President of the Union. We recommend that either of the following methods may be adopted. One method is that the President should in consultation with the Chief Justice ofthe Supreme Court (so far, as the appointment of puisne judges is concerned) nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the law officers of the Union. The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice except of course that in this case there will be no· consultation with the Chief Justice. To ensure that the panel will be both independent [and] command confidence the panel should not be an ad hoc body but must be one appointed for a term of years."4 A B c D E

11. There was clearly a divergence of opinion between the Sapru Committee and the Ad hoc Committee on the F consultation process for the appointment of judges. The Sapru Committee felt that the appointment of judges should be left to the Head of State acting on his/her own while the Ad hoc Committee did not approve of the appointment process being left to the 'unfettered discretion of the President' but suggested G it to be broad-based involving a panel. ·

12. However, what is apparent from both the Report of 4 http-([164 100 47 132/LssNew/cons!j!ueotlyol4p6 html H 634 SUPREME COURT REPORTS [2015] 13S.C.R. A the Sapru Committee and the Report of the Ad hoc Committee · is that tfle executive was not to be involved at all in the process of appointment of judges. This is of considerable significance. 5 Memorandum on the Union Constitution and Draft Clauses 8

13. On 3Qth May, 194 7 the Constitutional Advisor to the ConstituentAssembly, Sir B.N. Rau submitted a Memorandum on the Union Constitution and Draft Clauses. The Memorandum provided in Chapter VI (The Union Judicature) that there shall be a Supreme Court 'with powers and jurisdiction as recommended by the ad hoc Committee on the Union Judiciary. '6 In the draft clauses of the Union Constitution appended to the Memorandum, it was provided that every judge of the Supreme Court shall be appointed by the President with the approval of not less than 2f3rd of the members of the Council . of State.7 In this regard, the Law Commission of India notes in its 8Qth Report as follows: "The Constitutional Adviser, in his memorandum dated May 3Qth, 1947 suggested that the appointment of Judges should be made by the President with the approval of at least two-thirds of the Council of State. The Council of State, · according to him, was to be a body in the nature of a Privy Council for advising the President on certain matters on which decisions were required on independent non-party lines. The Council of State was to include the Chief Justice of India among its members and its composition was to be such as to secure freedom from party bias. Such a Council 5 Lay persons were also not included in the consultation process. • B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 486 7 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, H Volume II page 519 C D E F G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 635 • of State, it was suggested by the Constitutional Adviser, would be a satisfactory substitute for the panel recommended by the Special Committee. The Union Constitution Committee did not accept the proposal of the Constitutional Adviser for setting up of a Council of State, and suggested that the procedure for the appointment of judges should be that the President should consult the Chief Justice and such other judges of the Supreme Court as might be necessary."8 A B c

14. It appears that by this time, the independence of the judiciary was taken for granted, the only question being the procedure for the appointment of judges -whether it should be the exclusive responsibility of the President or it should be broad-based involving a panel or a Council of State. In any D event, the exclusion of the executive in the appointment process appears to have been taken as accepted. Union Constitution Committee

15. The Union Constitution Committee which presented E a Report to the Constituent Assembly on 4 1h July, 1947 did not adopt the proposal for setting up a Council of State. Consequently, an alternative procedure for the appointment of a judge of the Supreme Court was suggested, namely, for the appointment by consultation between the F President and the Chief Justice of the Supreme Court and such other judges of the Supreme Court and judges of the High In other words, the limited Court as may be necessary. consultative process as originally envisaged by the Sapru G Committee (between the President and the Chief Justice of India) was accepted though with modifications. Chapter IV paragraph 18 of the Report concerns itself with the • Paragraphs 4.4 and 4.5 H - 636 SUPREME COURT REPORTS [2015) 138.C.R. A appointment of judges of the Supreme Court and this reads as follows: B c D E F "18. Supreme Court.-There shall be a Supreme Court with the constitution, powers and jurisdiction recommended by the ad hoc Committee on the Union Judiciary, except that a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also judges of the High Courts as may be necessary for the purpose. [NOTE - The ad hoc Committee on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Federation. They have suggested two alternatives, both of which involve the setting up. of a special panel of eleven members. According to one alternative, the President, in consultation with the Chief Justice, is to nominate a person for appointment as puisne judge and the nomination has to be confirmed by at least seven members of the panel. According to the other alternative, the panel should recommend three names, out of which the President, in consultation with the Chief Justice, is to select one for the appointment. The provision suggested in the above clause follows the decision of the Union Constitution Committee.]"9 G Again, the executive had no role to play in the appointment of judges, specifically of the Supreme Court. 9 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 583 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 637 Provincial Constitution Committee

16. With regard to the High Courts, a Report of 27111 June, 1947 was submitted to the Constituent Assembly by the Provincial Constitution Committee. Part II thereof pertained to the Provincial Judiciary and the recommendations made for the appointment of judges of the High Court incorporated the provisions of the Government of India Act, 1935 and the recommendations made by the Union Constitution Committee. These read as follows: "The Provincial Judiciary A 8 c

1. The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis; but judges should be appointed by the President of the Federation in consultation with the Chief D Justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the Chief Justice of the High Court himself is to be appointed).

2. Jhe judges of the High Court shall receive such E emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule ........... .

3. The emoluments and allowances of the judges shall F not be diminished during their term of office." 10 The above discussion indicates that the executive was to be kept out of the process of appointing judges to the Supreme Court and the High Courts. This is clear from the views of: ( 1) The Sapru Committee; (2) The Ad hoc Committee G on the Supreme Court; (3) The Union Constitution Committee, 10 B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents, Volume II page 662 H 638 SUPREME COURT REPORTS [2015) 13 S.C.R. A and (4) The Provincial Constitution Committee. This will have some bearing when the composition of the National Judicial Appointments Commission is examined. 8

17. In this background pertaining to the judiciary, the first draft of the Constitution was placed before the Drafting Committee in October, 194 7. This was followed by another (revised) draft submitted to the President of the Constituent Assembly on 21st February, 1948. There was no significant change between these two drafts as far the appointment c process for the Federal Judicature (or the High Courts in the Provinces/States) is concerned. But, it is important to note that the Drafting Committee did not throw overboard the view of any of the committees mentioned above, that is, to keep the executive out of the process of appointment of judges. D Conference of Chief Justices

18. Wide publicity was given to the Draft Constitution to enable interested persons to express their views through comments and suggestions. The views expressed by the E Conference of Chief Justices (the Chief Justice of the Federal Court and Chief Justices of the High Courts), the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas are important since they explain the interplay between the Executive and the F Judiciary in the matter of appointment of judges.

19. These views also make it clear that almost immediately after Independence (or thereabouts) the executive began to interfere in the appointment of judges of the High Courts. This interference by the executive (or in the present G day language, the political executive) is the genesis of the problem that we are grappling with even today.

20. The Conference of Chief Justices was held on 26th and 27th March, 1948 to consider the proposals in the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 639 Draft Constitution concerning the judiciary. A Memorandum A representing the views of the Federal Court and of the Chief Justices representing all the Provincial High Courts of the Union of India was prepared and submitted by the Conference. 11 This Memorandum is of immense importance in understanding the prevailing appointment process. B

21. Very briefly, in what may be described as the 'preamble' to the Memorandum, a few salient points were assumed and noticed. It was assumed that the independence - and integrity of the judiciary is of the 'highest importance' not c only to the judges but to the citizens seeki~g resort from a court of law against the high handed and illegal exercise of power . by the executive. It was noticed that there is a tendency to whittle down the powers, rights and authority of the judiciary which, if allowed to continue, would be 'most unfortunate'. D Therefore, there was a need to col.interact this tendency which was likely to grow witl;J,_greater power being placed in the hands of the political parties."lt was said: · "We have assumed that it is recognized on all hands that the independence and integrity of the judiciary in a E democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the F high-handed exercise of power by the executive. Thanks to the system of administration of justice established by the British in this country, the judiciary until now has, in the main, played and independent role in protecting the rights of the individual citizen against encroachment and G invasion by the executive power. Unfortunately, however, a tendency has, of late, been noticeable to detract from 11 The text of the Memorandum is available in B. Shiva Rao: ;The Framing of India's Constitution' - Select Documents, Volume IV page 193 H 640 SUPREME COURT REPORTS [2015] 13 S.C.R.. A B c D the status and dignity of the judiciary and to whittle down their powers, rights an authority which if unchecked would be most unfortunate. While we recognize that the Draft Constitution proposes to liberalize in some respects the existing safeguards against executive interference and to enlarge their present powers, it is felt that further provision should be made in the same direction in order effectively to counteract the aforesaid tendency which is bound to become more pronounced as more power passes into the hands of political parties who will control and dominate the governmental machinery in the years In making the following proposals and to come. suggestions, the paramount importance of securing the fearless functioning of an independent, incorruptible and efficient judiciary has been steadily kept in view." The Memorandum specifically pointed out (sadly) that after 15th August, 1947 the appointment of judges to the High Courts, on merit, was not always assured in view of the practice followed (by some States). Also, recommendations by the E Chief Justice of the High Court were not always forwarded to the Central Government, implying thereby that some other recommendations were forwarded. In this regard it was said: "Discussions at the conference revealed that the procedure followed after 15th August 1947 does not in practice always ensure appointment being made purely on merit without political, communal and party considerations being imported into the matter. Though it is acknowledged readily enough in principle that such considerations should not influence the appointment, this is not always kept in view in working the procedure in practice. The Chief Justice sends his recommendation to the Premier who consults his Home Minister. The recommendation of the Premier is then forwarded to the F G H / SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 641 Home Ministry at the Centre without even sending the A recommendation of the Chief Justice along with it, the prescribed procedure being apparently understood as not rendering it obligatory for the Premier to do so."

22. Consequently, a modified procedure for making recommendations was unanimously recommended by the Conference which would ensure that the recommendation of the Chief Justice reaches the President and that the appointment be made with the concurrence of the Chief Justice of India to avoid any political pressures. It was said: 8 c "The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor the President should make the appointment with the concurrence of the Chief Justice of India. This procedure would obviate the need for the Chief Justice D of the High Court discussing the matter with the Premier and his Home Minister and "justifying" his recommendations before them. It would also ensure the recommendation .of the Chief Justice of the High Court being always placed before the appointing authority, E namely, the President. The necessity for obtaining the "concurrence" of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear in the matter." F

23. Significantly, the Memorandum tacitly and implicitly acknowledged that apart from a recommendation for the appointment of a judge of a High Court originating from the Chief Justice of the High Court, recommendations were being made by or at the instance of the political executive. Whether G such a procedure was right or wrong was not considered but it was suggested that in the event of such a recommendation being maoe, the concurrence of the Chief Justice of India should be obtained before the appointment is made. The H 642 SUPREME COURT REPORTS [2015] 13S.C.R. A Memorandum proposed that Article 193(1) of the Draft Constitution concerning the appointment of a judge of a High Court should read as under: B "Every judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India ... " ' . C The Memorandum acknowledged that a recommendation for the appointment of a judge of the High Court could also be made by the President (in an individual capacity). In the event of such a proposal (by the President), there was no likelihood of the Chief Justice of India not accepting it and, therefore, the concurrence of the Chief D Justice of India was not required to be incorporated in the Constitution. It was, therefore, noted: "We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President making a different proposal, and no express provision need, it seems to us, be made in that behalf. The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court, and article 103(2) may also be suitably modified ..... " E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 643

24. The significance of this Memorandum cannot be A overemphasized and it can be summarized as follows: (1) The independence and integrity of the judiciary was of the highest importance. (2) A tendency had developed in the executive to whittle down the power and authority of the judiciary. (3) It was noted that recommendations for the appointment of a judge of B a High Court originate from the Chief Justice of the High Court. Occasionally, such recommendations are suppressed by the executive at the provincial level. It was proposed that recommendations made by the Chief Justice ought to be forwarded directly to the President for being processed so C that the political executive at the provincial level cannot suppress it. (4) It was acknowledged that the political executive at the provincial level also makes recommendations (though not always on merits) directly to the Central Government, without D the knowledge of the Chief Justice of the High Court. Such recommendations ought to be accepted only with the concurrence of the Chief Justice of India, and this should be taken care of in the Draft Constitution. (5) It was acknowledged that a recommendation for the appointment of a judge of a E High Court (or the Supreme Court) could be made by the 'Both are officers of the highest President (personally - responsibility .... .'). This would normally be accepted by the Chief Justice of India and therefore no provision for the concurrence of the Chief Justice of India was required to be F made in this regard in the Draft Constitution. However, if the Chief Justice of India were to refuse to accept the recommendation, the situation could be met by the President making a different proposal. This is because, it was noted, that 'a convention now exists that such appointments should G be made after referring the matter to the Chief Justice of India and obtaining his concurrence.' H 644 SUPREME COURT REPORTS [2015] 13 S.C.R. A Amendments to Article 61 and Article 62 of the Draft Constitution 8

25. The Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas adverted to and considered Article 61 and Article 62 (amongst others) of the Draft Constitution. Article 61 and Article 62 of the Draft Constitution pertain to the Council of Ministers to aid and advice the President and other provisions as to Ministers. In this regard, Shiva Rao mentions c in his excellent effort 'The Framing of India's Constitution -A · Study' as follows: "There was considerable discussion in the Minorities Sub-Committee and in the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas on the need for the inclusion of minority representatives in the Union and State Cabinets ..... They considered that it would be sufficient if, following the precedent furnished by the Government of India Act of 1935, an Instrument of Instructions was drawn up, to be included as a schedule to the Constitution, enjoining the Governors and the President as far as practicable to include members of the minority communities in their Ministries. In the Draft Constitution of February 1948, however, an Instrument of Instructions for this purpose was drawn . up only for Governors but not for the President. Possibly in order to rectify this omission, the Drafting Committee decided, on further consideration of the articles relating to the Council of Ministers, that an Instrument of Instructions for the President would also be necessary" 12

26.Apparently, pursuant to this, the Drafting Committee gave a notice in October 1948 of an amendment to Article 62 proposing to add the following clause: 12 Page 373-374 D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 645 "In the choice of his Ministers and the exercise of his A other functions under this Constitution, the President shall be generally guided by the Instructions set out in Schedule Ill-A, but the validity of anything done by the President shall not be called in question on the ground that it was done otherwise than in accordance with such B Instructions."

27. Schedule Ill-A incorporated the Instrument of tnstructions to the President and this is important and it reads as follows: c New Schedule 111-A [Article 62(5a)] INSTRUCTIONS TO THE PRESIDENT

1. In these instructions, unless the context otherwise D requires, the term "President" shall include every person for the time being discharging the functions, of, or acting as, the President according to the provisions of this Constitution.

3. E (1) The President shall make rules for the

4. constitution of an Advisory Board consisting of not less F than fifteen members of.the Houses of Parliament to be elected by both Houses in accordance with the system of proportional representation by means of the single transferable vote for the purpose of advising the President in the matter of making certain appointments G under this Constitution and shall take all necessary steps for the due constitution of such Board as soon as may be after the commencement of this Constitution. H 646 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H (2) Such rules shall provide that the Leader of the Opposition, if any, in either House of Parliament shall, if he is not elected to the Advisory Board, be nominated to the Board by the President. (3) Such rules shall also define the terms of office of the members of the Advisory Board and its procedure and may contain such ancillary provisions as the President may consider necessary.

5. (1) In making any appointment of- (a) the Chief Justice of India or any other judge of the Supreme Court; (b) the Chief Justice or any other judge of a High Court; (c) an Ambassador in a foreign State; (d) the Auditor-General of India; (e) the Chairman or any other member of the Union Public Service Commission; (f) any member of the Commission to superintend, direct and control all elections to Parliament and elections to the offices of President and Vice-President, The President shall consult the Advisory Board constituted under paragraph 4. (2) The President shall also consult the Advisory Board so constituted in making appointment by virtue of the powers conferred on him by this Constitution to any other office under the Government of India or the Government of a State other than the office of Governor of a State, if Parliament by resolutions passed by both Houses recommend to the President that the Advisory Board shall be consulted in making appointment to such office.

6. (1) In making appointment of judges of the Supreme SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 647 Court and of the High Courts, the President shall before A obtaining the advice of the Advisory Board shall follow the following procedure: (a) In the case of appointment of the Chief Justice of India, he shall consult the judges of the Supreme Court and the B Chief Justices of the High Courts within the territory of 1.ndia except the States for Jhe time being specified in Part Ill of the First Schedule. (b) In the case of appointment of a judge of the Supreme Court other than the Chief Justice of India, he shall consult C the Chief Justice of India and the other judges of the Supreme Court and also the Chief Justices of the High Courts within the territory of India except the States for the time being specified in Part Ill of the First Schedule. (c) In the case of appointment of the Chief Justice of a High Court, he shall consult the Governor of the State in which the High Court has its principal seat, and the Chief Justice of India. D (d) In the case of appointment of a judge of a High Court E other than the Chief Justice, he shall consult the Governor of the State in which the High Court has its principal seat, the Chief Justice of India and the Chief Justice of the High Court. (2) The President shall place the recommendations of the authorities consulted by him under sub-paragraph ( 1) before the Advisory Board at the time of obtaining the advice of that Board with regard to any appointment referred to in that sub-paragraph.

7.xxx

8.xxx"13 F G "The Framing of India's Constitution - Select Documents, Volume -IV, Page 84. H 648 SUPREME COURT REPORTS [2015] 13 S.C.R. A 8 C

28. It is significant that the Instrument of Instructions also kept the executive completely out of the picture in so far as the appointment of judges is concerned. No one from the executive was to be consulted or involved in the appointment process.

29. The Drafting Committee also proposed, apparently in view of the insertion of Schedule Ill-A that Article 103(2) of the Draft Constitution (relating to the appointment of judges of the Supreme Court and corresponding to Article 124(2) of the Constitution of lndia) 14 be modified as follows: "(i) the words "after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose" be deleted in clause (2); and D · (ii) the first proviso to clause (2) be deleted ."15

30. In other words, the President was not expected to consult the Council of Ministers at all or to act on its advice but was to consult the Chief Justice oflndia and other judges and then take the advice of the Advisory Board. This was a mixture E of the Sapru Committee recommendation of the Head of State (or President as the high office came to be designated) acting on his/her own and yet the President not having 'unfettered discretion' in the appointment of judges. F

31. All the proposals, including those given by the Conference of Chief Justices, the Minorities Sub-Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, were considered by the Drafting 14 Article 103(2) of the Draft Constitution reads: "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and G seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a judge, other than the Chief Justice, the Chief Justice of India shall always be consulted." 15 The Framing of India's Constitution - Select Documents, Volume - IV, H Page 147. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1..[MADAN B. LOKUR, J.] 649 Committee and on 4th November, 1948 the second draft of the A Constitution was introduced in the Constituent Assembly by Dr. B.R. Ambedkar, Chairman of the Drafting Committee. However, the decision of the Drafting Committee taken in October, 1948 was not incorporated in the Draft Constitution. Therefore, Dr. Ambedkar moved an amendment in the B Constituent Assembly on 31st December, 1948 to insert clause (5)a in Article 62 of the Draft Constitution. The amendment proposed by Dr. Ambedkar reads as follows: "That after clause 5 of Article 62 the following new clause c be inserted:- (5)a In the choice of his Ministers and the exercise of his other functions under this Constitution, the President shall be generally guided by the instructions set out in Schedule Ill-A, but the validity of anything done by the D President shall not be called in question on the ground that it was done otherwise than in accordance with such instructions."

32. The amendment was discussed briefly and adopted E · by the Constituent Assembly on the same day. Although the decision of the Drafting Committee was to insert clause (5)a in Article 62 of the Draft Constitution and simultaneously delete a part of clause (2) of Article 103 of the Draft Constitution, the amendment relating to the deletion of clause (2) of Article 103 F of the Draft Constitution was apparently not moved by Dr. Ambedkar. It is not clear why. As far as the Instrument of Instructions is concerned, it is pointed out by Granville Austin that it was not actually, but implicitly, adopted by the Constituent Assembly. 16 G

33. A combined reading of the views of the Drafting Committee read with the Instrument of Instructions and the " Indian Constitution - Cornerstone of a Nation by Granville Austin at page 126, footnote 39 H 650 SUPREME COURT REPORTS [2015] 13 S.C.R. A insertion of clause (5)a in Article 62 of the Draft Constitution indicates that the thinking at the time was that in the matter of appointment of judges the President was to act in his/her individual capacity. This is very significant otherwise there was absolutely no need for an Instrument of Instructions or an B Advisory Board to be set up or for the complete exclusion of the Council of Ministers or the executive in the appointment of judges. However, this thinking was later on given up. Constituent Assembly Debates C

34. This historical background has an impact on understanding the subsequent debate in the Constituent Assembly that took place on 23rd and 24th May, 1949 when Article 103 of the Draft Constitution was considered and It needs to be· debated in the Constituent Assembly. 0 . emphasized at this stage that when the debate took place on 23'd and 24th May, 1949 it~as in the backdrop of the fact that clause (5)a had already been inserted in Article 62 of the Draft Constitution to the effect that in respect of several matters, including the appointment of judges, the President would act in his/her individual capacity and the Council of Ministers was not even in the picture. The debate will be referred to a little later. E

35. After a few months, on 11th October, 1949 the F President of the Constituent Assembly was informed by Mr. T.T. Krishnamachari that Schedule 111-Ais not being moved and that it could be taken out of the list. He also moved for the deletion of Schedule IV from the Draft Constitution. Explaining the move to delete Schedule IV from the Draft Constitution it G was stated that the matter should be left entirely to convention rather than be put in the body of the Constitution as a Schedule in the shape of an Instrument of Instructions and that there is a fairly large volume of opinion which favours that idea. H

36. Dr. Ambedkar added as follows: SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 651 "Sir, with regard to the Instrument of Instructions, there A are two points which have to be borne in mind. The purpose of the Instrument of Instructions as was originally devised in the British Constitution for the Government of the colonies was to give certain directions to the head of the States as to how they should exercise their B discretionary powers that were vested in them. Now the Instrument of Instructions were effective in so far as the particular Governor or Viceroy to whom these instructions were given was subject to the authority of the Secretary of State. If in any particular matter which was of a serious C character, the Governor for instance, persistently refused to carry out the Instrument of Instructions issued to him, it was open to the Secretary of State to remove him, and appoint another and thereby secure the effective carrying D "out of the Instrument of Instructions. So far as our Constitution is concerned, there is no functionary created by it who can see that these Instruments of Instructions is carried out faithfully by the Governor. Secondly, the discretion which we are going to leave with E the Governor under this Constitution is very very meagre. He has hardly any discretion at all., He has to act on the advice of the Prime Minister in the matter of the selection of Members of the Cabinet. He has also to act on the advice of the Prime Minister and his Ministers of State F with respect to any particular executive or legislative action that he takes. That being so, supposing the Prime Minister does not propose, for any special reason or circumstances, to include in his Cabinet members of the minority community, there is nothing which the Governor G can do, notwithstanding the fact that we shall be charging him through this particular Instrument of Instructions to act in a particular manner. It is therefore felt, having regard under the Constitution who can enforce this, that no such H . 652 SUPREME COURT REPORTS [2015] 13S.C.R. A B directions should be given. They are useless and can serve no particular purpose. Therefore, it was felt in the circumstances it is not desirable to have such Instrument of Instructions which really can be effective in a different set of circumstances which can by no stretch of imagination be deemed to exist after the new Constitution comes into existence. That is the principal reason why it is felt that this Instrument of Instructions is undesirable."17

37. On the basis of the above discussion, Schedule IV c to the Draft Constitution was deleted and a motion to that effect was adopted. D

38. Thereafter on 141 h October, 1949 an ~mendment was moved by Mr. T.T. Krishnamachari to omit clause (5)a of Article 62 of the Draft Constitution. It was stated that since Schedule lll~A was not moved, this clause becomes superfluous and therefore its omission was moved. The amendment to omit clause (5)a of Article 62 of the Draft Constitution was adopted. In support of this, Dr. Ambedkar [perhaps the main advocate of clause (5)a] had this to say, while emphasizing constitutional E obligations and constitutional conventions: "Every Constitution, so far as it r.elates to what we call parliamentary democracy, requires three different organs of the State, the executive, the judiciary and the legislature. I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the State. Consequently, it is to be presumed that those who work the Constitution, those who compose the 17 http://parliamentofindia.nic.in/ls/debates/vol1 Op4 him F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 653 Legislature and those who compose the executive and A the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution. B Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the c State acting within its own limitations and obeying the supremacy of the other organs of the State. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself. D I remember, Sir, that you raised this question and I looked it up and I had with me two decisions of the King's Bench Division which I wanted one day to bring here and refer in the House so as to make the point quite clear. But I am sorry I had no notice today of this point being raised. But E this is the answer to the question that has been raised. No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and F that if there is any authority created by the Constitution which has to decide between that particular authority and any other authority, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the G President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict H 654 SUPREME COURT REPORTS [2015] 13S.C.R. A B with the interpretation of the judicial organ created by the Constitution. Shri H V. Karnath : If in any particular case the President does not act upon the advice of his Council of Ministers, will that be tantamount to a violation of the Constitution and will he be liable to impeachment? . The Honourable Dr. B. R. Ambedkar: There is not the slightest doubt about it."18 C Referring tothis extremely important exposition, Granville Austin concludes: "From this, one is forced to deduce thatAmbedkar and the members of the Drafting Committee, perhaps under pressure from Nehru or Patel, had come to the conclusion that the written provisions of a non-justiciable Instrument of Instructions and the tacit conventions of cabinet government had equal value: both were legally unenforceable, but both provided a mechanism by which the legislature could control the Executive; and of the two, conventions were the tidiest and the simplest way of limiting Executive authority."19 Transposing this to the relationship between the Judiciary and the Executive, it is quite dear that Dr. Ambedkar and indeed the Constituent Assembly was of the view that constitutional obligations and constitutional conventions must be respected, unwritten though they may be. And, one of these constitutional obligations and constitutional conventions is that the view of the judiciary must be respected by the executive not only with respect to judicial decisions but also in other matters that directly impact on the independence of the judiciary. D E F G " http'lipar!jamentofindja.nic jn/lsldebates/vol1 Op?c.htm 19 Indian Constitution - Cornerstone of a Nation, pages 138-139 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 655 Debates on 23'd and 241 h May, 1949

39. It is important to appreciate that the Constituent Assembly Debates (for short the CAD) to which our attention was drawn refer to the appointment of a judge of the Supreme Court and not specifically to the appointment of a judge of a High Court. But the sum and substance of the debate is equally applicable to the appointment of a judge of a High Court. A 8

40. On 23'd and 24th May, 1949 three significant amendments to Article 103(2) of the Draft Constitution relating to the appointment of judges of the Supreme Court were C considered in the Constituent Assembly. The first was moved . by Prof. K.T. Shah (Bihar: General) who suggested that the appointment of a judge of the Supreme Court should be after consultation with the Council of State. This suggestion was .intended to avoid political influence, party maneuvers and D ··. pressures in the appointment process. The second was moved . by Prof. Shibban Lal Saksena (United Provinces: General) who suggested that the appointment-Of the Chief Justice of India be subject to confirmation by two~thirds majority of the total E number of Members of Parliament assembled in a joint session of both the Houses of Parliament. The third was moved by Mr. B. Pocker Sahib (Madras: Muslim} who suggested that . the appointment of a judge of the Supreme Court should have ··the concurrence of the Chief Justice of India. In support of his F · amendment Mr. B. Pocker Sahib extensively referred to and relied on: the Merhoraridum submitted by the Conference of Chief Justices.As he put it: "I submit, Sir, the views expressed by the Federal Court and the Chief Justice of the .various High Courts G assembled in.conference are entitled to the highest weight befor-e this Assembly, before this provision is . passed. It is of the highest importance that the Judges of the· Supreme Court should not be made to feel that their H 656 SUPREME COURT REPORTS [2015] 13 S.C.R. A 8 c D E ,F G H existence or their appointment is dependent upon political considerations or on the will of the political party. Therefore, it is essential that there should be sufficient safeguards against political influence being brought to bear on such appointments. Of course, if a Judge owes his appointment to a political party, certainly in the course of his career as a Judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him. That the Judges should be above all these political considerations cannot be denied. Therefore, I submit that one of the chief conditions mentioned in the procedure laid down, that is the concurrence of the Chief Justice of India in the appointment of the Judges of the Supreme Court, must be fulfilled. This has been insisted upon in this memo. and that is a very salutary principle which should be accepted by this House. I submit, Sir, that it is of the highest importance that the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed. It has been very emphatically stated in this memo. that it is absolutely necessary to keep them above political influences. No doubt, it is said in this procedure that the Governor of the State also may be consulted; but that is a matter of minor importance. It is likely that the Governor may also have some political inclinations. Therefore, my amendment has omitted the name of the Governor. That the judiciary should be above all political parties and above all political consideration cannot be denied. I do not want to enter into the controversy at present, which was debated yesterday, as to the necessity for the indepen<;Jence of the judiciary so far as the executive is concerned. It is a SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0,1. [MADAN B. LOKUR, J.] 657 matter which should receive very serious consideration A at the hands of this House and I hope the Honourable the Law Minister will also pay serious attention to this aspect of the question, particularly in view of the fact that this recommendation has bee.n ma<!e by the Federal Court and the Chief Justice of the other High Court assembled B in conference. I do not think, Sir, that there can be any higher authority on this subject than this conference of the Federal Court and the Chief Justices of the various High Courts in lndia."20 c Mr. MahboobAli Baig Sahib (Madras: Muslim) moved a somewhat similar amendment. The reason given by Mr. Mahboob Ali Baig Sahib was: "Under our proposed constitution the President would be the constitutional Head of the executive. And the D constitution envisages what is called a parliamentary democracy. So the President would be guided by the Prime Minister or the Council of Ministers who are necessarily drawn from a political party. Therefore the decision of the President would be necessarily influenced E by party considerations. It is therefore necessary that the concurrence of the Chief Justice is made a pre-requisite for the appointment of a Judge of the Supreme Court in order to guard ourselves against party influences that may F be brought to bear upon the appointment of Ju,Pges."21

41. It is clear that both these Hon'ble Members made the 'concurrence' suggestion since they desired the appointment of a judge of the Supreme Court to be free from any sort of political or executive interference. It appears that G these amendments were moved unmindful of the insertion of clause (5)a in Article 62 ofthe Draft Constitution and Schedule Ill-A thereto. 20 http'/lparljamentofindia njc jo/ls/debates/yo!Bp?a htm 21 http://parliamentofindia nic in/ls/debates/vol8p?a htm H 658 SUPREME COURT REPORTS [2015] 13S.C.R. A

42. Be that as it may, there appears to have been some discordance in the views and perception of different persons on the exact role of the President in the process of appointment of judges. Is the Presi2ent expected to act on the advice of the Council of Ministers or in his/her personal capacity? B

43. One view, as expressed by Dr. Ambedkar was that the President would be guided by the Council of Ministers. The other view or perception was that with the insertion of clause (5)a in Article 62 of the Draft Constitution and Schedule c 111-A the President was to act in his/her individual capacity and not be guided by the Council of Ministers since the executive was to be kept completely out of the appointment process. It is not clear which of the two views found favour with Mr. B. Packer Sahib and Mr. MahboobAli Baig Sahib- but both were D clear that the President could be put under political or party pressure in the recommendation ofa person for appointment and that this should be avoided and the pressure could be negated by the requirement of the concurrence of the Chief Justice of India, an impartial person. E

44. But what is more significant is that Mr. B. Packer Sahib and Mr. Mahboob Ali Baig Sahib adverted only to a recommendation for the appointment of a judge by the President - hence the necessity of concurrence by the Chief F Justice of India. They did not, quite obviously, advert to the recommendation for the appointment of a judge by the Chief Justice of India.

45. It is in this background of divergence of perceptions h May, 1949 should be that the speech of Dr. Ambedkar on 241 G appreciated. Replying to the debate, Dr.Ambedkar stated: "Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the . Judges of the Supreme Court to be appointed? Now H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 659 grouping the different amendments which are related to A this particular matter, I find three different proposals. The first proposal is that the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. That is one view. The other view is that the appointments made by the President should be subject B to the confirmation of two-thirds vote by Parliament; and the third suggestion is that they should be appointed frr . · consultation with the. Council of States. · · With regard to this matter, I quite agree that the point c raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two in other D countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other officers of E the State shall be made [appointed] only with the · ·concurrence of the Senate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be F dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject G to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political H 660 SUPREME COURT REPORTS [2015] 13S.C.R. A B c D E considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment. With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I 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 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 is also a dangerous proposition."22

46. Dr. Ambedkar was quite clear that there could be no F difference of opinion that the judiciary should be independent of the executive, yet competent. He was of the view that it would be 'dangerous' to leave the appointment of judges to the President without any reservation or limitation, that is to say, merely on the advice of the executive of the day. Dr. G Ambedkar seems to have lost sight of the existence of the Instrument of Instructions (or it was 'given up' by him) since that document mentioned the advice of the Advisory Board and not the executive and also that that document enabled the 22 ht!p"/lpar!iamento!indja nic jo/ls/debateslvolBpZb htm H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 661 President to act on his/her own, and not on the advice of the A executive. 8 4 7. If this dichotomy between the role of the President and the executive and the binding or non-binding effect of the advice of the executive on the President is appreciated, the views of Dr. Ambedkar become very clear. He was quite clear that the executive was not to have primacy in the appointment process nor did he want the President to have unfettered discretion to accept or reject the advice of the executive or act or. his/her own. As far as the concurrence of the Legislature is c concerned, Dr. Ambedkar felt that the process would be cumbrous with the possibility of political pressure and considerations. It is in this context that Dr. Ambedkar said that he was steering a middle course and was not prepared to grant a veto to the President (rejecting the advice of the D executive or acting on his/her own) in the appointment of judges, executive primacy having already been rejected by him. Under the circumstances, he felt that 'this sort of provision [consultation with the Chief Justice of India] may be regarded as sufficient for the moment.' E

48. With regard to the 'concurrence' of the Chief Justice of India (as against consultation with the Chief Justice of India) in the appointment of a judge of the Supreme Court, Dr. Ambedkar was of the opinion that the Chief Justice, despite F his eminence, had all the failings, sentiments and prejudices of common people and to confer on him a power of veto, which is not vested in the President or the Government of the day (that is the executive), would be a 'dangerous proposition'.

49. Dr. Ambedkar was of the view that neither the G President nor the Government of the day (the executive) nor the Chief Justice of India should have the final word in the matter of the appointment of judges. Who then would have the final say in the event of a difference of opinion between the President H 662 SUPREME COURT REPORTS [2015] 13 S.C.R. A or the Government of the day or the Chief Justice of India on the appointment of a particular person as a judge? Dr. Ambedkar did not directly address this question since he did not visualize a stalemate arising in this regard. 8

50. A small diversion - apart from the reasons already mentioned for keeping the executive out of the decision-taking process in the appointment of judges, it would be of interest to know that, on a different topic altogether, while replying to the debate 'on acceptance of office by members of the judiciary c after retirement' Dr. Ambedkar observed that the judiciary is very rarely engaged in deciding issues between citizens and the Government. He said: D E F G "The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently the chances of influencing the conduct of a member of the judiciary by the Government are very remote, and my personal view, therefore, is that the provisions which are applied to the Federal Public Services.Commission have no place so far as the judiciary is concerned." 23

51. Times have changed dramatically since then and far from disputes 'very rarely' arising between citizens and the Government, today the Government is unashamedly the biggest litigant in the country. It has been noticed in Supreme Court Advocates on Record Association v. Union of /ndia 24 that: "No one can deny that the State in the present day has become the major litigant and the superior courts particularly the Supreme Court, have become centres 23 htH:rUparliamentofindia nic jn/lsldebates/vol8p7b htm 24 (1993) 4 sec 441 (Nine Judges Bench) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 663 for turbulent controversies, some of which with a flavour A of political repercussions and the Courts have to face tempest and storm because their vitality is a national imperative. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing B its arbitrators. The answer would be in the negative. If such a process is allowed to continue, the independence . of judiciary in the long run will sink without any trace."25 52. Given this fact situation, since there was this reason c in 1949 to insulate the judieiary and the appointment process from the direct or indirect influence ofthe executive and political or party pressures, there is a.II the more reason to do so today ifthe independence of the judiciary is to be maintained.

53. In England too the executive is the 'most frequent D litigator' and the position seems to be no better than in our country. In a lecture on Judicial Independence, Lord Phillips26 had this to say: "In modern society the individual citizen is subject to E controls imposed by the executive in respect of almost every aspect of life. The authority to impose most of those controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. F Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected."27 G 25 Paragraph 207 (Justice Pandian). A similar view was expressed by Justice Kuldip Singh in paragraph 327. 26 Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales 27 https:/(www.ucl ac uk/constitution-unit/eventsOudjcjal-jndependence- events/lord-phillips-transcri pt.pdf H 664 SUPREME COURT REPORTS [2015] 13 S.C.R. A Summation

54. The discussion leading up to the Constituent Assembly Debates and relating to the appointment of judges clearly brings out that: B (1) The independence of the judiciary was unflinchingly accepted by all policy and decision makers; (2) The appointment of judges of the Supreme Court and the High Courts was to be through a consultative process C between the President and the Chief Justice of India, neither of whom had unfettered discretion in the matter; (3) In any event, the political executive had no role or a very little role to play in the decision-taking process. Notwithstanding this, the political executive did interfere in the D appointment process as evidenced by the Memorandum prepared in the Conference of Chief Justices by, inter alia, recommending persons for appointment as j\,ldges of the High Court. Resultantly, the appointment of judges to the High Courts was not always on merit and sometimes without the recommendation of the Chief Justice of the High Court; E (4) A constitutional convention existed that the appointment of judges should be made in conformity with the views of the Chief Justice of India; F (5) The proposal for the appointment of a judge of the Supreme Court or a High Court could originate from the President (although it never did} or the Chief Justice of India and regardless of the origin, it would normally be accepted. However, the possibility of the President giving in to political G or party pressures was not outside the realm of imagination. (6) Historically, the Chief Justice of India was always consulted in the matter of appointment of judges, and conventionally his concurrence was always taken regardless H of whether a recommendation for appointment originated from SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 665 the Chief Justice of the High Court or the political executive. It A is in this light that the discussion in the Constituent Assembly on the issue of appointment of judges to the Supreme Court and the High Courts deserves to be appreciated. (7) It remained a grey area whether in the appointment B of judges, the President was expected to act on his/her own or on the advice of the political executive. Views of the Law Commission of India

55. The issue of the appointment of judges of the Supreme Court and the High Courts was first addressed, after C Independence, in the 14th Report of the Law Commission of India (for short the LCI), then in the 8Qth Report and finally in the 121st Report. (A reference was made in the 2141h Report and the 23Qth Report but they are of no immediate consequence). D The issue also came to be addressed in S.P. Gupta v. Union of Jndia 28 and in Subhash Sharma v. Union of Jndia. 29 It was also the subject matter of three Constitution amendment Bills and two other pronouncements of this Court rendered by larger Benches. This is mentioned only to highlight the E complexity of the issue and the constant search for some stability and certainty in the appointment process in relation to the independence of the judiciary. It has been said with regard to the selection of judges in the United States, and this would equally apply to our country: F "It is fairly certain that no single subject has consumed as many pages in law reviews and law-related publications over the past 50 years as the subject of judicial selection."30 {a) 141 h Report- 26.9.1958 28 1981 (Supp) SCC 87 (Seven Judges Bench) "1991 supp (1) sec 574 30 Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting Philip Dubois). G H 666 · SUPREME COURT REPORTS [2015] 13 S.C.R. .· A . Appointment of judges of the Supreme Court 8

56. Within less than a decade of the promulgation of the Constitution, the process of appointment of judges of the Supreme Court and the High Courts came in for sharp criticism· from the LCI. Chapter 5 and Chapter 6 of the 14th Report of the LCI relating, inter alia, to the appointment of judges to the Supreme ~ourt and judges to the High Courts respectively . makes for some sad reading, more particularly since the Attorney-General for India was the Chair of the LCI. 31 It must C be noted here that the LCI travelled through the length and breadth of the country for about one year and examined as many as 4 73 witnesses from a cross-section of society before giving its Report. It also adopted a novel procedure of co-opting two members from the States that were visjted so a:s to o understand the local problems. The monumental and ~uthoritative work can onlybe admired.

57. The LCI observed that the Constitution endeavorecj E to putjudges of the Supreme Court 'above executive control' .. It very specifically acknowledged the importance of . safeguarding the independence of the judiciary and obser,ved . that 'It.is obvious that the selection of the Judges constituting a. Court of such pivotal importance. to the progress of the nation must be a responsibifity to be exercised with greafcare.' 32 F · . ?8 .. Thereafter three central issue~ were adverted to - . (1)Communal and regional considerations had prevailed in · ·.·making the selection of-judges. (2) The general impression·. was that executive influence was exerted now and again from the highest quarters in respect of some appointments to-the· G B~nch. (3) The best talent among.the judges of the High Courts did not find its way to the Supreme Court . . 31 The Report is titled 'Reforms of the Judicial Administration' 32 Chapter 5 paragraph 5 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

59. The Report said: 667 A "It is widely felt that communal and regional considerations have prevailed in making the selection of the Judges. The idea seems to have gained ground that the component States of India should have, as it were, B representation on the Court. Though we call ourselves a secular State, ideas of communal representation, which were viciously planted in our body politic by the British, have not entirely lost their influence. What perhaps is still more to be regretted is the general impression, that c now and again executive influence exerted from the highest quarters has been responsible for some appointments to the Bench. It is undoubtedly true, that the best talent among the Judges of the High Courts has not always found its way to the Supreme Court. This has D prevented the Court from being looked upon by t.he subordinate Courts and the public generally with that respect and indeed, reverence to which it by its status entitled."33

60. On the basis of its findings, the LCI recommended, E inter alia, that 'communal and regional considerations shouh;l play no part in the making of appointments to the Supreme Court.' However, the LCI did not proffer any solution to the vexed issue of making more satisfactory appointments to the F Supreme Court. Appointment of judges of the High Courts . 61: Similarly, Chapter 6 of the Report concerning the appointment of judges to the High Courts makes for equally sad reading. The inadequacies in the appointments made G were pointed out as: (1) The selections have. been unsatisfactory and induced by executive influence. (2) There 33 Chapter 5 p;;iragraph 6 H 668 SUPREME COURT REPORTS [2015] 13 S.C.R. is no recognizable principle for making the appointments and considerations of political expediency or regional or communal sentiments have played a role. (3) Merit has been ignored in making appointments.

62. It was said that these inadequacies were well founded and there was acute public dissatisfaction with the appointments made: "We have visited all the High Court centres and on all hands we have heard bitter and reviling criticism about the appointments made to High Court judiciary give in recent years. This criticism has been made by Supreme Court Judges, High Court Judges, Reti~ed Judges, Public Prosecutors numerous representatives, associations of the Bar, principals and professors of Law Colleges and very responsible members of the legal profession all over the country. One of the State Governments had to admit that some of the selections did not seem to be good and that careful scrutiny was necessary. The almost universal chorus of comment is that the selections are unsatisfactory and that they have been induced by executive influence. It has been said that these selections appears to have proceeded on no recognizable principle and seem to have been made out of consideration of political expediency or regional or communal sentiments. Some of the members of the Bar appointed to the Bench did not occupy the front rank in the profession either in the matter of legal equipment or of the volume of their practice at the bar. A number of more capcrble and deserving persons appear to have been ignored for reasons that can stem only from political or communal or similar grounds. Equally forceful or even more unfavourable comments have been made in respect of persons selected form the services. We are convinced A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 669 that the views expressed to us show a well founded and A acute public dissatisfaction at these appointments."34

63. On the procedure followed for the appointment of a judge of the High Court and the administrative working of Article 217 of the Constitution, the LCI had this to say: B "The Chief Justice forwards his recommendation to the Chief Minister who in tum forwards this recommendation in consultation with the Governor to the Minister of Home Affairs in the Central Government. If, however, the Chief Minister does not agree with the recommendation of the C Chief Justice, he makes his own recommendation. It appears that in such a case, the Chief Justice is given an opportunity for making his comments on the recommendation made by the Chief Minister. This practice is not, however, invariably followed so that, in D some cases it happens that the recommendation made by the Chief Minister does not come to the knowledge of the Chief Justice. The rival recommendations are then forwarded to the Minister of Home Affairs who, in consultation with the Chief Justice of India, advises the E President as to the selection to be made. The person recommended by the Chief Minister may be, and occasionally is, selected in preference to the person recommended by the. Chief Justice."35 F

64. The LCI recorded that no less a personage than the Chief Justice of India had this to say about executive interference in the appointment of judges to the High Courts (for reasons other than merit): 'The Chief Minister now has a hand direct or indirect in G the matter of the appointment to the High Court Bench. The inevitable result has been that the High Court 34 Chapter 6 paragraph 8 35 Chapter 6 paragraph 11 H 670 SUPREME COURT REPORTS [2015] 13 S.C.R. appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations, and likes and dislikes have a free play. This necessarily encourages canvassing which, I am sorry to · say, has become the order of the day. The Chief Minister holding a political office dependent on the goodwill of his party followers may well be induced to listen and give way to canvassing. The Chief Justice on the other hand does not hold his office on sufferance of any party and he knows the advocates and their merits and demerits and a recommendation by the Chief Justice is therefore more likely to be on merit alone that the one made by the Chief Minister who may know nothing about the comparative legal acumen of the advocates."36

65. To conclude this aspect, the Report observes that extraneous factors have influenced the appointments and that there seems to be canvassing for appointment as a judge of the High Court: 'This indeed is a dismal picture and would seem to show that the atmosphere of communalism, regionalism and political patronage, have in a considerable measure influenced appointments to the High Court Judiciary. Apart from this very disquieting feature, the prevalence of canvassing for judgeships is also a distressing development. Formerly, a member of the Bar was invited to accept a judgeship and he considered it a great privilege and honour. Within a few years of Independence, however, the judgeship of a High Court seems to have become a post to be worked and canvassed for." 37

66. Based on its findings, the LCI reached the following conclusions, amongst others: 36 Chapter 6 paragraph 14 37 Chapter 6 paragraph 14 and 15 A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 671 "(8) Many unsatisfactory appointments have been made A to the High Courts on political regional and communal or other grounds with the result that the fittest men have not been appointed. This has resulted in a diminution in the out-turn of work of the Judges. (9) These unsatisfactory appointments have been made notwithstanding the fact that in the vast majority of cases, appointments have been concurred in by the Chief Justice of the High Court and the Chief Justice of India. B (10) Consultation with the State executive is necessary C before appointments are made to the High Court. (11) While it should be open to the State executive to express its own opinion on a name proposed by the Chief Justice, it should not be open to it to propose a nominee D of its own and forward it to the Centre. (12) The role of the State executive should be confined to making its remarks about the nominee proposed by the Chief Justice and if necessary asking the Chief Justice to make a fresh recommendation. E (14) Article 217 of the Constitution should be amended to provide that a Judge of a High Court should be appointed only on the recommendation of the Chief Justice of that State and with the concurrence of the Chief F Justice of lndia."38

67. Unlike in the appointment of judges to the Supreme Court, the LCI suggested, for the High Courts, thatArticle 217 of the Constitution ought to be amended to incorporate the concurrence of the Chief Justice of India to the appointment. G This recommendation was made so that, .in future, no appointment could be made without the concurrence'Of the Chief Justice of India. '·" Chapter 6 paragraph 82 H 672 SUPREME COURT REPORTS [2015] 13 S.C.R. A

68. The Report was considered in Parliament on 23'd, 24th and 25th November, 1959 and the Government of the day gave its point of view, as did several Hon'ble Members. But what is more important is that in the debate on 24th November, 1959 it was stated by Shri Govind Ballabh Pant, Hon'ble B Minister of Home Affairs that since 1950, as many as 211 judges were appointed to the High Courts and out of these except one 'were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the Government had the support of all persons who were connected with this matter.'39 C D E F G

69. A little later it was stated: "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. There were fifteen cases in which there was a difference of opinion between the Chief Justice and the Chief Minister or the Governor. So, these cases also were referred to the Chief Justice of India. In some of these he accepted the proposal made by the Chief Minister and in others he accepted the advice or the suggestion received from the Chief Justice of the High Court. But we on our part had his advice along with that of the Chief Justice of the High Court concerned and of the Chief Minister concerned. So, these cases do not even come to five per cent. But even there, so far as we are concerned, out of these 211 cases, as I said, except in one case where there was a difference of opinion between the Chief Minister and the Chief Justice, we had accepted in 210 cases the advice of the Chief Justice of lndia."40 39 Page 287 40 Page 288-289 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.) 673

70. On the next day, that is, 251 h November, 1959 Shri A A.K. Sen, Minister of Law reiterated the statement made by the Home Minister. He clarified that in one case where there was a difference of opinion, the Government accepted the advice of the Chief Justice of the High Court (not the Chief Minister) rather than the advice of the Chief Justice of India. B

71. The discussion ended with an Hon'ble Member suggesting that the recommendations of the LCI be taken note of and implemented as quickly as possible.

72. What is of importance in this Report (apart from C several other conclusions) is that there had been instances where a recommendation for appointment as a judge of the High Court was made by the Chief Minister without the knowledge of the Chief Justice and that canvassing had begun to take place for appointment as a judge of the High Court. D But in all cases, except one, the concurrence of the Chief Justice of India was taken. (b) 801 h Report-10.8.1979 Appointment of judges of the Supreme Court E

73. The 8Q1 h Report of the LCI was submitted on 10th August, 1979 and it was mainly prepared by Justice H.R. Khanna when he was its Chair.41 7 4. It was observed that an independent judiciary is F absolutely indispensible for ensuring the Rule of Law. Generally in regard to appointment of judges, it was observed that wrong appointments have affected the image of the Courts and have undermined the confidence of the people in them. Further, it was observed that an appointment not made on merit but G because of favouritism or other ulterior considerations can hardly command real and spontaneous respect of the Bar and 41 Although Justice H.R. Khanna did not sign the Report. it had his full concurrence H 674 SUPREME COURT REPORTS [2015] 13 S.C.R. A that the effect of an improper appointment is felt not only for the time being but its repercussions are felt long thereafter. 42 8

75. In this background, and in relation to the appointment of judges of the Supreme Court, it was concluded that (1) Only persons who enjoy the highest reputation for independence, dispassionate approach and detachment should be elevated to the Supreme Court. (2) No one should be appointed a judge of the Supreme Court unless he has severed affiliations with political parties for at least 7 (seven) years. (3)Aperson should c be appointed as a judge if he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice, bias or leaning.43

76. Significantly, the LCI recommended adopting a consultative process in that the Chief Justice of India should D consult his three senior-most colleagues while making a recommendation for an appointment. He should reproduce their views while making the recommendation. This would minimize the chances of any possible arbitrariness or favouritism. 44 E

77. These recommendations were incorporated by the LCI in its summary of recommendations. I am concerned with the following recommendation: F G "(32) The Chief Justice of India, while recommending the name of a person for appointment as a Judge of the Supreme Court should consult his three senior most colleagues and should in the communication incorporating his recommendation specify the result of such consultation and reproduce the views of each of his colleagues so consulted regarding his recommendation. The role of these colleagues would 42 Paragraphs 2.2 to 2.5 are relevant in this context 43 Chapter 7 44 This later on became what is commonly called the 'collegium system' of H appointment of judges SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 675 be confined to commenting on the recommendation of A the Chief Justice. Such consultation would minimize possible arbitrariness or favoritism"45 Appointment of judges of the High Court

78. In relation to the appointment of judges of the High B Court, it was generally observed by the LCI in Chapter 6 of the Report that the prevailing impression was that their appointment 'has not been always made on merit and that this has affected the image of the High Courts.' 46 c

79. The LCI suggested a consultation process for the appointment of a judge of the High Court. It was suggested that the Chief Justice should, when making a recommendation, consult his two senior-most colleagues and indicate their views in writing. This would have a 'healthy effect' and considerably D minimize the chances of possible favoritism. It was opined that any recommendation of the Chief Justice which is concurred with by the two senior-most judges should normally be accepted. The LCI was, in principle, against the selection of persons as judges of the High Court on grounds or E considerations of religion, caste or region.

80. With regard to the recommendations originating from the political executive it was said: "Another question which has engaged attention is as to F whether the role of the Chief Minister should be that of commenting on the name recommended by the Chief Justice, or whether, in case he disagrees with the recommendation of the Chief Justice, he (the Chief Minister) can also suggest another name. This question G was agit;:ited in the past, and after due consideration it was decided that the Chief Minister would be entitled, in case he disagrees with the recommendation of the Chief 45 Chapter 9 46 Paragraph 5.9 H 676 SUPREME COURT REPORTS [2015] 13S.C.R. A B Justice to suggest another name. The Chief Minister in such an event has to invite the comments of the Chief Justice and send the matter thereafter along with the comments of the Chief Justice, to the Union Minister of In view of the fact that a decision Law and Justice. referred to above has already been taken after due consideration, we need not say anything further in the matter."47

81. Keeping all these factors in mind, some of the c recommendations made by the LCI were as follows: "(3) When making a recommendation for appointment of a judge of a High Court, the Chief Justice should consult his two seniormost colleagues. The Chief Justice, in his letter recommending the appointment, should state the fact of such consultation and indicate the views of his two colleagues so consulted. (4) Any recommendation of the Chief Justice which carries the concurrence of his two seniormost colleagues should normally be accepted. (7) The Commission is, in principle, against selection to the High Court Bench on ground of religion, caste or region. Merit should be the only consideration. Even when matters of State policy make it necessary to give representation to persons belonging to some religion, caste or region, every effort should be made to select the best person. The number of such appointments should be as few as possible. (12) On the question whether the role of the Chief Minister should be that only of commenting on the name recommended by the Chief Justice, or whether the Chief Minister can also suggest another name, a decision has 47 Paragraph 6.14 D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 677 already been taken and nothing further need be said in A the matter."48

82. Generally speaking, the LCI was of the view that the constitutional scheme of appointment of judges was basically sound, had worked satisfactorily and did not call for any radical change, though some aspects needed improvement. The recommendations mentioned above were made in that light. 8 (c) 121•1 Report- 31.7.1981 A new forum for judicial appointments c

83. It is important to note that this Report was prepared after the decision of this Court in S.P. Gupta. In its 121 st Report, the LCI noted that over the last four decades, mounting dissatisfaction has been voiced over the method and strategy of selection and the selectees to man the superior judiciary.49 D Further, in paragraph 7 .1 of its Report, the LCI noted that 'Everyone is agreed that the present scheme or model or mechanism for recruitment to superior judiciary has failed to deliver the goods.' This was with reference to the executive primacy theory in the appointment of judges propounded in E S.P. Gupta. In view of this the LCI recommended a new broad-· based model called a National Judicial Service Commission. 50

84. The LCI observed that two models were available for the appointment of judges. The first was the existing model F which conferred overriding powers on the executive in selecting and appointing judges .. But, Article 50 of the Constitution mandates a separation between the Executive and the Judiciary. The second model involved diluting (not excluding) the authority of the executive by associating more people in G the decision making process and setting up a body in which the judiciary has a pre-eminent position. This participatory 48 Chapter 9 49 Chapter 1 paragraph 1.4 50 Paragraph 7 .8 H 678 SUPREME COURT REPORT: [2015) 13 S.C.R. A model was called by the LCI as the National Judicial Service Commission.

85. The Commission was envisaged as a multi-member body headed by the Chief Justice of India whose 'pre-eminent B position should not be diluted at all', his predecessor in office, three .senior-most judges of the Supreme Court, three Chief Justices of the High Courts in order of their seniority, the Law Minister, the Attorney-General for India and an outstanding law academic. Thus, an 11 (eleven) member body was proposed c by the LCI for the selection and appointment of judges of the Supreme Court and the High Courts. To give effect to the recommendation, it was proposed to suitably amend the Constitution.51

86. The recommendation of the LCI was partially D accepted by the government of the day and the Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced in Parliament. This will be adverted to a little later. Arrears Committee -1989-90 E

87. Between 11th and 13th December, 1987 a Conference ·of Chief Justices was held with the Chief Justice of India in the Chair. The Conference discussed, inter alia, issues relating to arrears of cases in the High Courts and the District Courts in the country. Grave concern was expressed over the problem F of arrears and it was pointed out by most Chief Justices that delay in the appointment of judges is responsible for the arrears. Even after recommendations are sent, the Chief Justice has to wait for a long time for the Government to make the appointment with the result that for a number of years Courts have been working with about 50% of their strength. G

88. After a detailed discussion of the matter, it was decided to appoint a committee of Chief Justices to thoroughly 51 Paragraph 7.10 and 7.15 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 679 c examine the issues raised and a Resolution was passed A appointing such a committee. The composition of the committee called the Arrears Committee changed over a period of time but finally it consisted of Chief Justice V.S. Malimath (Kerala High Court), Chief Justice P.O. Desai (Calcutta High Court) and Chief Justice Dr. A.S. Anand (Madras B High Court). The Arrears Committee gave its Report in two volumes to the Conference of Chief Justices held between 31st August and 2nd September, 1990 which accepted the Reports, subject to a few modifications.

89. Chapter 5 of Volume 2 of the Report deals with the unsatisfactory appointment of judges to the High Courts. It was observed by the Arrears Committee that unsatisfactory appointments have contributed in a large measure to the accumulation of arrears in the High Courts. It was observed o that merit and merit alone, coupled with a reputation for integrity, suitability and capability has to be the criterion for selection of judges and judges not selected on that basis or who are appointed on considerations other than merit, may not be able to act impartially and fairly. It was noted that for E this reason the selection of judges should be made with utmost care and concern. 52 . 90. The Arrears Committee also considered the Report given in the recent past by the Satish Chandra Committee F which was of the confirmed view that some judges have not been directly recommended by the Chief Justice of the High Court but have been foisted on the High Court and that if this trend continued, it would be very difficult for the Chief Justice to effectively transact the judicial business of the Court. 53 G

91. Thereafter, the selection of a judge of the High Court for reasons other than merit was discussed and it was observed as follows: 52 Paragraph 5.1 53 Paragraph 5.4 H 680 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H "The selection of a person, on considerations other than merit, has far reaching consequences and does more damage than what appc.t"ently meets the eye. Such an appointee does not even receive from the members of the Bar the measure of respect and co-operation which is imperative for proper administration of justice. He may not have confidence even in himself and a command over the proceedings of the Court. All this would be at the cost of proper administration of justice. The effect would be felt not only on the quality but also on the quantity of the work turned out. According to Satish Chandra Committee, the sea change which has gradually come into the political process is directly responsible for the grave deterioration and the fall in the high standards of appointments to the High Court Bench previously maintained. Barring exceptions, the Chief Ministers to-day have come to think that even filling up vacancies on the High Court Bench is a matter of patronage, political or otherwise. It noticed that formerly members of the Bar were invited to accept judge-ship. Now, the judge-ship of the High Court seems to have become a post to be canvassed for. It was found that as long as the State executive has an effective hand in such appointments, this· disquieting feature would continue and that it could be remedied only by providing the safeguard of the executive having no final say in the matter of app9intment and that the last word in the matter should be of the Chief Justice of the High Court concerned and the Chief Justice of India. The Committee, therefore, suggested amendment of the Constitution, as a guarantee for ensuring the quality, that an appointment to the High Court must have the concurrence of the Chief Justice of India and should not be made merely in consultation with him. An amendment SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 681 was suggested to Article 217(1) of the Constitution on A those lines."54

92. It was concluded that for the judicial system to function effectively and forthe people to have faith and confidence in it, the appointment of judges should be made only on considerations of merit, suitability, integrity and capability and not on political expediency or regional or communal sentiments. It was observed in this regard as follows: 8 "This Committee is of the firm view that to ensure that the judicial system functions effectively and to maintain C both the quality and quantity of judicial work, as well as the faith and confidence of the public, the appointments be made only on considerations of merit, suitability, integrity and capability and not of political expediency or regional or communal sentiments. The apprehension that D the recommendation made by him may not meet with the approval of the executive, may sometimes !nduce a Chief Justice to propose the name of a person who does not measure upto the requisite standard, which is rather unfortunate. It is fundamental for the preservation of the E independence of the judiciary that it be free from threats and pressures from any quarter. It is the duty of the State to ensure that the judiciary occupies, and is seen to occupy, such position in the polity that it can effectively F perform the functions entrusted to it by the Constitution and that can be done only if the process of appointment is left unpolluted." 55

93. Commenting on the existing system of appointment of judges, the Arrears Committee reviewed the system in G Chapter 6 of the Report. Amongst other things it was observed that the system of appointment of judges had been prevailing for four decades and it was functioning satisfactorily so long 54 Paragraphs 5.5 and 5.6 55 Paragraph 5.8 H 682 SUPREME·COURT REPORTS [2015] 13 S.C.R. A as well-established conventions were honoured and followed and that it is not the system that has failed but those operating it had failed it by allowing it to be perverted. It was observed as follows: B c D 'The present system of appointment of Judges to the High Courts has been in vogue for about four decades. It functioned satisfactorily as long as the well-established conventions were honoured and followed. The gradual, but systematic violation and virtual annihilation of the conventions over the past two decades or so is essentially responsible for the present unfortunate situation. Has the system, therefore, failed or have the co~cerned failed the system is an all important question. It is apparent that the system has not failed, but all those concerned with operating the system have failed it by allowing it to be perverted."56 E

94. While dealing with the Memorandum of Procedure in existe'nce at that time for the appointment of judges, the Arrears Committee was rather scathing in its observations to the effect that there had been cases where there was agreement between the Chief Justice of India, the Chief Justice of the concerned High Court.and the Governor of the State but the Union Law Minister either choose not to make the F appointment or inordinately delayed the appointment. It was observed that sometimes the Union Law Minister adopted a pick and choose policy to appoint judges or disturb the order in which the recommendations were made. There had been political interference in this regard and undesirable influence G of extra-constitutional authorities in the appointment of judges. The appointment process therefore was undermined leaving the executive to appoint judges not on excellence but on · influence. It was observed as follows: 56 Paragraph 6 .11 -H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR. J.] 683 "There are cases that even where the Chief Justice of A India on being consulted, agrees with recommendation made by the Chief Justice of the concerned High Court which is also concurred to by the Governor of the State and forwards his recommendation to the Union Law Minister, appointments are either not B made or made after inordinate delay. Sometimes, the Union Law Minister even adopts the "pick and choose" policy to appoint Judges out of the list of selectees recommended by the Chief Justice of the High Court duly concurred in by the Chief Justice of India or makes C appointments by disturbing the order in which the recommendations have been made. The malady has become more acute in view of the political interference and undesirable influence of "extra constitutional authorities" in the appointment of judges. Thus, the · authority of the Chief Justice of India and the role of the Chief Justice of the High Courts in the matter of appointment of superior judiciary have, to a great extent, been undermined, leaving to the executive to appoint E Judges not on "excellence" but on "influence". Thus, merit, ability and suitability which undoubtedly the Chief Justice of the High Court is the most proper person to judge, are sacrificed at the altar of politital or other expediency. This attitude is essentially responsible for the deterioration F and the fall in the high standards of appointments to the High Court Benches. It is unfortunate, but absolutely true, that the Chief Ministers have come to think and the Union Law Minister has come to believe that the vacancy in the High Court Bench is a matter of political patronage which G they are entitled to distribute or dole out to their favourites. This veto power with the executive has played havoc in the matter of appointment of Judges."57 D 57 Paragraph 6.9 H 684 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H

95. In its recommendations, the Arrears Committee recommended dilution of the role of the executive and measures to avoid the existing system of appointment from being perverted. It was recommended as follows: "The role of the executive in the matter of appointment of judges should be diluted and that the cause for most of the ills in the functioning of the present system could be traced back to the veto power of the executive. This, indeed, is capable of being remedied by making certain amendments to Article 217 providing for concurrence of the Chief Justice of India, instead of consultation with him, in the matter of appointment of Judges of the High Courts."58 "The Committee is of the view that the present constitutional scheme which was framed by the founding fathers after great deliberation and much reflection is intrinsically sound and that it worked in the true spirit it does not require any radical change. In order to guard against and obviate the perversion revealed in tile operation of the scheme, the Committee has made suitable recommendations. The Committee believes that if these recommendations are given effect to, there would not be any need to substitute it by a different mechanism."59

96. In view of the scathing indictment of the system of appointment of judges where the executive had the 'ultimate power'60 which was being abused and perverted to take away the independence of the judiciary, contrary to the intention of the Constituent Assembly, there was no option but to have a fresh look into the entire issue of appointment of judges and ss Paragraph 124 ~· Paragraph 130 0 This expression was used by Justice Bhagwati and by Justice D.A. Desai • in paragraph 719 of S.P. Gupta v. Union of India. SUPREME .COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 685 that eventually led to the issue being referred in the early 1990's A to a Bench of 9 (nine) judges of this Court. Quite clearly, the executive had made a mess of the appointment of judges, taken steps to subvert the independence of the judiciary, gone against the grain of the views of the Constituent Assembly and acted in a manner that a responsible executive ought not to. B

97. Post Independence till the early 1990s, the judiciary saw the slow but sure interference of the executive in the appointment of judges. This was in the form of the executive recommending persons to the Chief Justice of the High Court c for appointment as a judge of the High Court. There were occasions when the executive completely by-passed the Chief Justice of the High Court and directly recommended persons to the Union Government for appointment as judges. The third stratagem adopted by the executive was to withhold D recommendations made by the Chief Justice and instead forward its own recommendation to the Union Government. The fourth method was to reopen approved recommendations on some pretext or the other. The fifth method was to delay processing a recommendation made by the Chief Justice. E

98. Tragically, almost all the appointments made during this period had the concurrence (as a constitutional convention) of the Chief Justice of India and yet, there was criticism of some of the appointments made. While the independence of F the judiciary was maintained at law, it was being slowly eroded both from within and without through the appointment of 'unsuitable' judges with merit occasionally taking a side seat. The 141 h Report of the LCI was generally critical of the appointments made to the High Courts and in this regard G reliance was placed by the LCI on information collected from various sources including judges of the Supreme Court. It is true that the 801 h Report of the LCI found nothing seriously wrong with the system of appointment of judges, but it still needed a H 686 SUPREME COURT REPORTS [2015] 13 S.C.R. A change. The Arrears Committee, however, was derisive of the existing system of appointment of judges and made some positive recommendations within the existing system, while the 121 st Report of the LCI suggested wholesale changes. B C

99. This discussion in the historical perspective indicates that the appointment of judges plays a crucial and critical role in the independence of the judiciary in the real sense of the term. If judges can be influenced by political considerations and other extraneous factors, the judiciary cannot remain independent only by securing the salary, allowances, conditions of service and pension ofsuch judges. The meat lies in the caliber of the judges and not their perks.

100. In his concluding address to the Constituent Assembly on 26th November, 1949 Dr. Rajendra Prasad referred to the independence of the judiciary and had this to say: "We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of executive from judicial functions and placing the magistracy which deals with criminal cases on similar footing as civil courts. I can only express the hope that this long overdue reform will soon be introduced in the States."61

101. Providing for an independent judiciary is not enough - access to quality justice achieved through the appointment of independent judges is equally important It has been said of 6 ' h!!p-/fparliameotofindja ojc jol!s/debates/yo!11pl2 htm D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] the judges during apartheid in South Africa: . 687 A "Now during apartheid judges had the formal guarantees of independence - life tenure, salary, administrative autonomy - that judges in the United States of America, Canada, the United Kingdom, New Zealand or Australia B had. It is in seeing why it was the case that apartheid-era judges for the most part lacked independence even though they had its formal trappings that we see that judicial independence is also a kind of dependence; it depends on something positive - the judicial pursuit of c the justice of the law. One has to ask not only what judges have to be shielded from in order to be independent, but what we want them to be independent for. "62

102. This review indicates that one of the important features of the Rule of Law and the independence of the D judiciary is the appointment process. It is, therefore, necessary to objectively appreciate the evolution of the appointment process post Independence and how the Judiciary understood it. E Judicial pronouncements

103. The question of the appointment of judges (mainly of the High Courts) came up for consideration in this Court on three occasions. The decision rendered in each of these cases is not only of considerable importance but also indicates the F complexity in the appointment of judges and the struggle by the Bar to maintain the independence of the judiciary from executive interference and encroachment. These three cases are referred to as the First Judges case, 63 the Second G Judges case64 and the Third Judges case. 65 There have 62 Judicial Independence, Transitional Justice and the Rule of Law by David Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346 63 S.P. Gupta v. Union of India, 198f Supp SCC 87 (Seven Judges Bench) 64 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Nine Judges Bench) 65 Special Reference No. 1of1998, (1998) 7 SCC 739 (Nine Judges Bench) H 688 SUPREME COURT REPORTS [2015] 13 S.C.R. A been other significant pronouncements on the subject and they will be considered at the appropriate stage. First judges case - 30.12.1981 B

104. The First Judges case is important for several reasons, but I am concerned with a few of them. These are: (1) The independence of the judiciary was held to be a part of the basic feature of the Constitution.66 This was the first judgment to so hold. C 0 (2) The appointment of a judge is serious business and is recognized as a very vital component of the independence of the judiciary. 'What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who E are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are a·nxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional F objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the G Constitution and to the people of lndia.' 67 Justice Venkataramiah, however, was of the view that the independence of the judiciary is relatable only to post- 66 Paragraphs 27, 320 and 634. This view has been upheld in several decisions thereafter. 67 Paragraph 27 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 689 appointment and that 'It is difficult to hold that merely because A the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge.'68 (3) In the appointment of a judge of the Supreme Court or the High Court, the word 'consultation' occurring in Article 124(2) and in Article 217(1) of the Constitution does not mean 'concurrence'. 69 However, for the purposes of consultation, each constitutional functionary must have full and identical facts c relating to the appointment of a judge and the consultation should be based on this identical material. 70 B (4) In the event of a disagreement between the constitutional functionaries required to be consulted in the appointment of a judge, the Union Government would decide D whose opinion should be accepted and whether an appointment should be made or not. In such an event, the opinion of the Chief Justice of India has no primacy. 71 The 'ultimate power' of appointment of judges to the superior Courts rests with the Union Government.72 (This is completely contrary E to the view of the Constituent Assembly and Dr. Ambedkar). (5) The extant system of appointment of judges is not an ideal system of appointment. The idea of a consultative panel (called a collegium or Judicial Commission) was floated as a F replacement. This body was to consist of persons expected to have knowledge of persons who might be fit for appointment on the Bench and possessed of qualities required for such an appointment. Countries like Australia and New Zealand 'have veered round to the view that there should be a Judicial G 68 Paragraph 1 033 69 Paragraph 30 and paragraph 890 70 Paragraphs 30, 632 and 848 71 Paragraph 30 72 Paragraph 30 H 690 SUPREME COURT REPORTS . [2015] 13 S.C.R. A Commission for appointment of the higher judiciary.' 73 Incidentally, we were informed during, the course of hearing that even about 35 years after the decision in the First Judges case neither Australia nor New Zealand have established a Judicial Commission as yet. B

105. On the meaning of 'consultation' for the purposes of Article 124(2) and Article 217(1) of the Constitution, Justice Bhagwati who spoke for the majority relied upon Union of India v. Sankalchand Himmatlal Sheth74 and R. Pushpam c v. State of Madras75 to hold that: D "Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to· appoint the person concerned as a Judge."76 E

106. The majority view in the First Judges case was overruled in the Second Judges case and it was held that 'consultation' in Article 217 and Article 124 of the Constitution meant that 'primacy' in the appointment of judges must rest with the Chief Justice of India. 77 The evolution of the collegium F system and a Judicial Commission will be discussed a little later, although it must be noted that the seeds thereof were sown (apart from the Reports of the LCI) in the First Judges case.

107. I do not think it necessary to further discuss the First 73 Paragraph 30 and 31 74 (1977) 4 SCC 1993 (Five Judges Bench) 7s AIR 1953 Mad 392 76 Paragraph 30 77 I entirely agree with Justice Chelameswar when he says that the Second Judges case did not hold that consultation means concurrence. G H - SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.) 691 Judges case since it has been elaborately considered by A Justice Khehar. Subhash Sharma's case

108. In a writ petition filed in this Court praying for filling up the vacancies of judges in the Supreme Court and several B High Courts of the country, a three judge Bench was of the view that the First Judges case required reconsideration. 78 It was observed that the decision of the majority not only rejects the primacy of the Chief Justice of India but also whittles down the significance of 'consultation'. C

109. It was noted that the Constitution (Sixty-seventh Amendment) Bill, 1990 was pending consideration in Parliament and that the Statemel'.lt of Objects and Reasons for the Amendment Act acknowledged that there was criticism D of the existing system of appointment of judges (where the executive had the primacy) and that this needed change, hence the need for an AmendmentAct. 79

110. On the issue of executive interference in the appointment of judges, the Bench found that interference went E to the extent of impermissibly re-opening the appointment process even though a recommendation for the appointment of a judge had been accepted by the Chief Justice of India. It was observed: F "From the affidavits filed by the Union of India and the statements made by learned Attorney General on the different occasions when the matter was heard we found that the Union Government had .adopted the policy of reopening recommendations even though the same had G been cleared by the Chief Justice of India on the basis that there had in the meantime been a change in the personnel of the Chief Justice of the High Court or the 78 Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574 " Paragraph 27 H 692 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D Chief Minister of the State. The selection of a person as a Judge has nothing personal either to the Chief Justice of the High Court or the Chief Minister of the State. The High Court is an institution of national importance wherein the person appointed as a Judge functions in an impersonal manner. The process of selection is intended to be totally honest and upright with a view to finding out the most suitable person for the vacancy. If in a given case the Chief Justice of the High C.ourt has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned."80 E

111. Apart from the above, the Bench was of the view that the interpretation given by the majority in the First Judges case to 'consultation' was not correctly appreciated in the constitutional scheme. It was also felt that the role of the institution of the Chief Justice of India in the constitutional F scheme had been denuded in the First Judges case. Keeping all these factors in mind, particularly the functioning of the appointment process and the acknowledgement of the Union Government that a change was needed, it was observed: 'The view taken by Bhagwati, J., Fazal Ali, J., Desai, J., and Venkataramiah, J., to whicb we will presently advert, in our opinion, not only seriously detracts from and denudes the primacy of the position, implicit in the 0 Paragraph 28 • G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 693 constitutional scheme, of the Chief Justice of India in the A consultative process but also whittles down the very significance of "consultation" as required to be understood in the constitutional scheme and context. This bears both on the substance and the process of the constitutional scheme ..... Consistent with the B constitutional purpose and process it becomes imperative that the role of the institution of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Courts of the States. We are of the view that C this aspect dealt with in Gupta case requires reconsideration by a larger bench."81

112. The issues for consideration of a larger Bench were then formulated in the following words: D "The points which require to be reconsidered relate to and arise from the views of the majority opinion touching the very status of "consultation" generally and in particular with reference to "consultation" with Chief Justice of India and, secondly, as to the primacy of the role of the Chief E Justice of India. The content and quality of consultation may perhaps vary in different situations in the interaction between the executive and the judicial organs of the State and some aspects may require clarification."82 F

113. It was ·also observed 't1'r.1t a view was expressed in the First Judges case that the government of the State could . initiate a proposal for the appointment of a judge but that the proposal could not be sent directly to the Union Government, but should first be sent to the Chief Justice of the High Court. 83 G Notwithstanding this clear exposition, the procedure was being distorted by the executive and a proposal for the appointment 81 Paragraph 31 82 Paragraph 32 83 Paragraph 728 of the First Judges case H 694 SUPREME COURT REPORTS [2015] 13 S.C.R. A of judge of the High Court was being sent directly to the Union Government. It was said in this regard: B c o E "But it has been mentioned that a practice is sought to be developed where the executive government of the State sends up the proposals directly to the Centre without reference to the Chief Justice of the State. This is a distortion of the constitutional scheme and is wholly impermissible. So far as the executive is concerned, the 'right' to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Courts or the Chief Justice of India. If the recommendation is to emanate directly from a source other than that of the Chief Justices of the High Courts in the case of the High Courts and the Chief Justice of India in the case of both the High Courts and the Supreme Court it would be difficult for an appropriate selection to be made. It has been increasingly felt over the decades that there has been an anxiety on the part of the government of the day to assert its choice in the ultimate selection of Judges. If the power to recommend would vest in the State Government or even the Central Government, .the picture is likely to be blurred and the process of selection ultimately may turn out to be difficult."84 F

114. By-passing the Ghief Justice of the High Court in the matter of recommending a person for appointment as a judge of the High Court was an unhealthy practice that the political executive of the State was trying to establish since G around the time of Independence. This 'subterfuge' was deprecated on more than one occasion, as noticed above.

115. Another practice that the political executive was trying to establish was to recommend persons for appointment 84 Paragraph 34 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 695 as a judge of the High Court to the Chief Justice of that High A Court. In this context, it was also stated in Subhash Sharma (as quoted above) that: 'It has been increasingly felt over the decades that there has been an anxiety on the part of the government of the day to assert its choice in the ultimate selection of Judges.'85 This unequivocally indicates that the B malaise of executive interference in appointing judges to the superior judiciary, first highlighted in the Memorandum emanating from the Chief Justices Conference and then by . the LCI in its 14th Report, continued in some form or the other through the entire period from Independence till the early 1990s. C In addition, the recommendation given in the 14th Report of the LCI in Chapter 6 regarding the executive not being entitled to 'propose a nominee of its own and forward it to the Centre' was not given the due weight and consideration that it deserved D from the executive.

116. Quite clearly, some complex issues arose in the matter of appointment of judges primarily due to the interference of the political executive and these needed consideration by a larger Bench. Well established and E accepted constitutional conventions were sought to be disregarded by the political executive. If the independence of the judiciary was to be maintained and parliamentary democracy was to be retained, the First Judges case and the appointment process needed a fresh look. F Second Judges case- 6.10.1993

117. As mentioned above, the Second Judges case was the result of an acknowledgement that: (1) The existing system of appointment of judges in which the executive had G the 'ultimate power' needed reconsideration since that 'ultimate power' was being abused; (2) The existing system of appointment of judges resulted in some appointments in which •• Paragraph 34 H 696 SUPREME COURT REPORTS [2015] 13 S.C.R. A merit was overlooked due to executive interference or for extraneous considerations. The Chief Justice of the High Court was occasionally by-passed oy the political executive and a recommendation forthe appointment of a person as a judge of the High Court was made directly to the Union Government. B This unfortunate situation had continued for more than 40 years and an attempt to bring about a change was made and so a Constitution Amendment Bill was introduced in Parliament, but it lapsed. c

118. In the Second Judges case it was held by Justice Pandian: (1) The selection and appointment of a proper and fit candidate to the superior judiciary is one of the inseparable and vital conditions for securing the independence of the judiciary.86 'The erroneous appointment of an unsuitable person o is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest .. .' 87 (2) Yet another facet of the independence of the judiciary is the separation between the executive and the judiciary (including the superior judiciary)88 E postulated by Article 50 of the Constitution. 89 (3) The Memorandum of Procedure forthe selection and appointment of judges filed by the Union of India along with the written submissions relating to the pre First Judges case period and the extant procedure as mentioned in the 121 st Report of the F LCI relating to the post First Judges case period are more or less the same. They indicate that the recommendation for filling up a vacancy in the Supreme Court is initiated by the Chief Justice of India and the recommendation for filling up a vacancy in the High Court is initiated by the Chief Justice of the High G Court. The Chief Minister of a State may recommend a person 86 Paragraph 49 87 Paragraph 63 88 Paragraph 81 89 50. Separation of judiciary from executive - The State shall take steps to H separate the judiciary from the executive in the public services of the State. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 697 for filling up a vacancy in the High Court, but that is to be routed A only through the Chief Justice of the High Court. 90 (4) Reiterating the view expressed in Sankalchand Sheth and the First Judges case it was held that for the purposes of consultation, the materials before the President and the Chief Justice of India must be identical.91 (5) For the appointment of B a judge of the Supreme Court (under Article 124(2) of the Constitution) or a judge of a High Court (under Article 217(1) of the Constitution) consultation with the Chief Justice of India is mandatory.92 (6) In the process of constitutional consultation in selecting judges to the Supreme Court or the High Court C and transfer of judges of the High Court, the opinion of the Chief Justice of India is entitled to primacy.93 (?)Agreeing with the majority opinion written by Justice J.S. Verma, it was held that if there are weighty and cogent reasons for not accepting D the recommendation of the Chief Justice of India for the appointment of a judge, then the appointment may not be made. However, if the 'weighty and cogent' reasons are not acceptable to the Chief Justice of India, and the recommendation is reiterated, then the appointment shall be made. 94 (8) The E majority opinion in the First Judges case regarding the primacy of the executive in the matter of appointment of judges was overruled.95

119. Justice Ahmadi dissented with the opinion of the majority and concluded: (1) Judicial independence is ingrained F in our constitutional scheme and Article 50 of the Constitution 'illuminates it'. 96 (2) The First Judges case was not required 90 Paragraphs 95 to 99. Though such a practice exists and is accepted, there have been some aberrations in this regard as mentioned in the 14" Report of the LCI and in the Conference of Chief Justices. 91 Paragraph 164 92 Paragraph 172 93 Paragraph 197 and 209 94 Paragraph 212 95 Paragraph 254 96 Paragraph 313 G H 698 SUPREME COURT REPORTS (2015] 13 S.C.R. A to be overruled but on the question of primacy in the matter of appointment of judges, the opinion of the Chief Justice of India is entitled to 'graded weight' .97 8

120. Justice Kuldip Singh agreed with the majority and laid great stress on constitutional conventions that had evolved over several decades. The learned judge held: (1) Security of tenure is not the only source of independence of the judiciary but 'there has to be an independent judiciary as an institution.'98 (2) Independence of the judiciary is inextricably linked and c connected with the constitutional process of appointment of judges of the higher judiciary. There cannot be an independent judiciary when the power of appointment of judges vests in the executive.99 (3) The President is bound by the advice given by the Council of Ministers. 100 (4) A constitutional convention is D established since the Government of India Act, 1935 (I would add the words 'at least') that the appointment of judges was invariably made with the concurrence of the Chief Justice of India. The opinion and recommendation of the Chief Justice of India in the matter of appointment of judges binds the E executive. 101 (5) In the matter of appointment of judges, consultation with the Chief Justice of India is mandatory. 102 (6) In the consultation process under Article 124(2) and 217(1) of the Constitution, the advice and recommendation of the Chief Justice of India is binding on the executive and must be the final word. The majority view in the First Judges case does F 97 Paragraph 303 and 313. It was observed in paragraph 303: "If the President has to act on the aid and advice of the Council of Ministers it is difficult to hold that he is bound by the opinion of the Chief Justice of India unless we hold that the Council of Ministers including the Prime Minister would be bound by the opinion of the Chief Justice of India, a construction which to our mind is too artificial and strained to commend acceptance." 98 Paragraph 334 99 Paragraph 335 100 Paragraph 277, 356, 383 and 411 101 Paragraph 359, 371,373 and 376. The figures relating to the appointment of judges have been mentioned in paragraphs 367 and 369. 102 Paragraph 377 and 411 G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 699 not lay down the correct law. 103 (7) For the purposes of Article 124(2) and 217(1) of the Constitution, the Chief Justice of India and the Chief Justice of the High Court mean the functionaries representing their respective Court. 104 A B

121. One of the more interesting facts pointed out by Justice Kuldip Singh is that from 1st January, 1983 (after the decision in the First Judges case) till 1 Qth April, 1993 (that is during a period of ten years) the opinion of the Chief Justice of India was not accepted by the President in as many as seven C cases. This is worth contrasting with a part of the period before the 'ultimate power' theory was propounded when the opinion of the Chief Justice of India was not accepted by the President only in one case and in that case, the opinion of the Chief Justice of the High Court (not the political executive) was accepted. D This is what the learned judge had to say: "Mr S.K. Bose, Joint Secretary, Department of Justice, Ministry of Law and Justice has filed an affidavit dated April 22, 1993 before us. In para 6 of the said affidavit it E is stated as under: "As regards the appointments of Judges made, not in consonance with the views expressed by the Chief Justice of India, it is respectfully submitted that since January 1, 1983 to April 10, 1993, there have been F only seven such cases, five of these were in 1983 (2 in January 1983, 2 in July 1983, 1 in August 1983); one in September 1985 and one in March 1991, out of a total of 547 appointments made during this G period." It is thus obvious from the facts and figures given by the itself that in actual practice the executive 103 Paragraph 385, 387 and 411 104 Paragraph 392 and 411 H .. 700 SUPREME COURT REPORTS [2015] 138.C.R. A 8 recommendations of the Chief Justice of India have invariably been accepted."105

122. Justice Verma speaking for the majority held: (1) Independence of the judiciary has to be safeguarded not only by providing security of tenure and other conditions of service, but also by preventing political considerations in making appointments of judges to the superior judiciary. 106 (2) In the matter of appointment of judges, primacy was given to the executive in the Government of India Act, 1919 C and the Government of India Act, 1935 but in the constitutional scheme, primacy of the executive is excluded. 107 0 (3) The Chief Justice of India and the Chief Justice of the High Court are 'best equipped to know and assess the worth of a candidate, and his suitability for appointment as a superior judge.' In the event of a difference of opinion between the executive and the judiciary, the opinion of the Chief Justice of India should have the greatest weight. [This echoed Dr. Ambedkar's view that consultation would be between persons E who are well qualified to give advice in matters of this sort.] Therefore, since primacy is not with the executive, then in such a situation, it must lie with the Chief Justice of lndia. 108 This certainly does not exclude the executive from the appointment process. The executive might be aware (unlike a Chief Justice) F of some antecedents or some information relatable to the personal character or trait of a lawyer or a judge which might have a bearing on the potential of a person becoming a good judge: 1o9 This might form the basis for rejecting a recommendation for the appointment of a person as a judge G by the Chief Justice of lndia. 110 105 Paragraphs 369 and 370 106 Paragraph 44 7 107 Paragraph 444, 446, ~48 and 450 108 Paragraph 450, 451, 455, 478 and 486 109 Paragraph 462 110 Paragraph 478(7) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 701 (4) Primacy of the opinion of the Chief Justice of India is A not to his/her individual opinion but to the collective opinion of the Chief Justice of India and his/her senior colleagues or those who are associated with the function of appointment of judges. 111 Therefore, the President may not accept the recommendation of a person for appointment as a judge, if B the recommendation of the Chief Justice of India is not supported by the unanimous opinion of the other senior judges. 112 The President may return for reconsideration a unanimous recommendation for good reasons. However, in the latter event, if the Chief Justice of India and the other judges C consulted by him/her, unanimously reiterate the recommendation 'with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.' 113 (The key word here is D unanimous - both at the stage of the initial recommendation and at the stage of reiteration). (5) For appointing a judge of the Supreme Court or the High Court, consultation with the Chief Justice of India or the Chief Justice of the High Court is mandatory. 114 E (6) The President in Articles 124(2) and 217(1) of the Constitution means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister atthe head.115 F (7) The advice given by the Council of Ministers to the President should be in accord with the Constitution. Such an advice is binding on the President. Since the opinion of the Chief Justice of India (representing the Judiciary) has finality, the advice of the Council of Ministers to the President must be G 111 Paragraph 456 and 466 112 Paragraph 478(8) 113 Paragraph 478(7) 114 Paragraph 448 115 Paragraph 457 H 702 SUPREME COURT REPORTS [2015] 13 S.C.R. A in accordance with the opinion of the Chief Justice of lndia. 116 8 C (8) The convention is that the appointment process is initiated by the Chief Justice of India for the appointment of a judge to the Supreme Court and by the Chief Justice of the High Court for the appointment of a judge to the High Court. There is no reason to depart from this convention. 111 (9) The law laid down in the First Judges case is not the correct view. 118

123. In his otherwise dissenting opinion, Justice Punchhi supported the view taken by Justice Verma to the extent that the executive could not disapprove the views of the Chief Justice of India or the views of the Chief Justice of the High Court (as the case may be) when a recommendation is 0 made for the appointment of a judge to a superior court. 119

124. The most significant feature of the Second Judges case is that it introduced what has come to be called a 'collegium system' of consultation for the appointment of judges of the Supreme Court and the High Courts. As far as the Chief E Justice of India is concerned, the collegium system broad based his/her role in the appointment of judges of the High Courts and the Supreme Court and.(in one sense) diluted his/ her role in the appointment process by taking it out of the individualized or personalized role of the Chief Justice of India F as thought of by Dr. Ambedkar. The consultative role of the Chief Justice of India in Article 124 of the Constitution was radically transformed through a pragmatic interpretation of that provision. How did this happen? G H

125. In the Second Judges case certain norms were laid down by Justice Verma in the matter of appointment of judges. These norms were: For the appointment of judges in 116 Paragraph 457 and 476 117 Paragraph 478(10) and 486(2) 118 Paragraph 486 119 Paragraph 500 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 703 the Supreme Court, the Chief Justice of India must ascertain A the views of the two senior-most judges of the Supreme Court and of the senior-most judge in the Supreme Court from the High Court of the candidate concerned. Through this process, the individual opinion of the Chief Justice of India was substituted by the collective opinion of several judges. In this B sense the opinion of the Chief Justice of India in the consultative process was made broad-based and ceased to be individualized. At this stage it is worth recalling the words of Dr. Ambedkar that 'the Chief Justice, despite his eminence, had aJ! the failings, sentiments and prejudices of common C people.' The apprehension or fear that Dr. Ambedkar had in this regard in case the Chief Justice of India were to act in an individual or personal capacity was now buried. 120 A somewhat similar norm was laid down for consultation for the appointment D of a judge of the High Court. This is what was said: "This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the E consultative process has to be formed taking into account the views of the two seniormost Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior-most Judge of the Supreme Court whose opinion is likely to be F significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying G Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his 120 According to the learned Attorney-General, this would have made Dr. Ambedkar turn in his grave. Not so and quite to the contrary. H 704 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c o E F opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two seniormost Judges of the High Court."121

126. The importance of the role of the Chief Justice of India was acknowledged in that it was observed that the constitutional convention was that no appointment should be made by the President under Article 124(2) and Article 217(1) of the Constitution unless it was in conformity with the final G opinion of the Chief Justice of India. It was said: 'The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1 ), so given, has primacy in the matter of all appointments; and no appointment can "' Paragraph 478(1 ) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 705 be made by the President under these provisions to the A Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated."122

127. The 'manner indicated' was that if a B recommendation is returned by the executive (for cogent reasons) to the Chief Justice of India and the Chief Justice of India reiterates the recommendation with the unanimou~ agreement of the judges earlier consulted, then the appointment should be made 'as a matter of healthy convention'. This is what was said in this context: c ' "Non-appointment of anyone re~ommended, on the ground of unsuitability, must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those D considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that E person, for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than F a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons G for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made."123 122 Paragraph 478(5) 123 Paragraph 478(7) H 706 SUPREME COURT REPORTS [2015] 13 S.C.R. A

128. The norms took the form of conclusions that became binding on the Judiciary and the Executive. It is not necessary to reproduce the conclusions arrived at. 8

129. An important aspect of the appointment process, which was adverted to by Justice Verma, is the constitutional convention that the recommendation must be initiated by and must originate from the Chief Justice of the High Court (for appointment to the High Court) and from the Chief Justice of India (for appointment to the Supreme Court). In the event the c Chief Minister of a State recommends a person for appointment as a judge of the High Court, it must be routed only through the Chief Justice of the High Court. It is then for the said Chief Justice to consult his colleagues (and others, if necessary) and decide whether or not the person should be o formally recommended. If the Chief Justice of the High Court recommends that person, the procedure as mentioned in the Second Judges case would thereafter follow. If the Chief Justice of the High Court decides not to recommend that person for appointment, the matter stands closed and, therefore, the question of making an appointment without the consent of the Chief Justice of India simply does not and cannot arise. It is this constitutionally and conventionally accepted procedure, which is apparently not acceptable to the political executive, that has led to the political executive by-passing the Chief Justice of a High Court and directly recommending to the Union Government a person for appointment as a judge of the High Court. Be that as it may, the majority view expressed in the Second Judges case restored the constitutional position envisaged by Dr: Ambedkar by diluting the individual G authority of the Chief Justice of India and conferring it on a E F collegium of judges, which is perhaps in consonance with the · views of Dr.Ambedkar.

130. According to the learned Attorney-General, these H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 707 conclusions turned Article 124(2) and Article 217(1) of the A Constitution 'on their head' and even Justice Verma, the author of the judgment felt that the decision required a rethink. The reference was to an interview given by Justice Verma post his retirement. In that, it was said by Justice Verma: "My 1993 judgment which holds the field, was very much misunderstood and misused. It was in that context that I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore some kind of rethink is c required."124 B

131. It appears that the misunderstanding of the decision in the Seconc;f Judges case continues even today, especially by the political executive. The misunderstanding is not due to any lack of clarity in the decision rendered by this Court but D due to the discomfort in the 'working of the judgment'. I say this because it was submitted by the learned Attorney-General and learned counsel for some States that the Second Judges case left the executive with no role (or no effective role) to play in the appointment of a judge of the Supreme Court or the E High Court particularly since the opinion of the executive is now rendered meaningless. Nothing can be further from the truth. The executive continues to have a vital role to play and in some ca·ses, the final say in the appointment of a judge - the F misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of judges, it is their way or the highway. The Constitution of India is a sacred document and not a Rubik's cube that can be manipulated G and maneuvered by the political executive any which way only . to suit its immediate needs.

132. In an article found on the website of the Tamil Na du 124 The Frontline, Volume 25 Issue 20 September 27, 2008 to October 10,2008 H 708 SUPREME COURT REPORTS [2015] 13 S.C.R. A State Judicial Academy, Justice Verma adverted to the appointment process in the Second Judges case and the role of the executive and said: "The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive·to make the appointment. Some reported instances in the recent past of the executive failing to perform its duty by exercise of this power even when the recommendation of the judicial collegium was not unanimous and the then President of India had returned it for reconsideration, are not only inexplicable but also a misapplication of the decision, which the CJ I, Balakrishnan rightly says is binding during its validity. Such instances only prove the prophecy of Dr. Rajendra Prasad that the Constitution will be as good as the people who work it. Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability."125 A little later in the article Justice Verma says (and this is also adverted to in the interview referred to by the learned Attorney-General): 125 ht!p-f/www tnsja to ojc jo/artjc!e/Judjcia!%20!ndependence%20JSVJ pdf B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 709 'The recent aberrations are in the application of the . A Second Judge's case in making the appointments, and not because of it. This is what I had pointed out in my letter of 5 December 2005 to CJI, Y.K.Sabharwal with copy to the two senior most judges, who included the present CJI, K.G. Balakrishnan." B

133. The misunderstanding is, therefore, of the.political ·executive and no one else. However, as pointed out by the learned Attorney-General, the merits or demerits of the Second Judges case is not in issue after the 99 1 Amendment Act and therefore no further comment is made, although it must be said, quite categorically, that the political executive has completely misunderstood the scope and impact of the Second Judges case and the working of the collegium system. h Constitution c D Third Judges case - 28.10.1998

134. Special Reference No. 1of1998 is commonly referred to as the Third Judges case. The President sought the advisory opinion of this Court under Article 143 of the E Constitution on the foUowing, amongst other, questions: "( 1) whether the expression 'consultation with the Chief Justice of India' in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole F individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles. (3) whether Article 124(2) as interpreted in the said judgment [Second Judges case] requires the Chief G Justice of India to consult only the two seniormost Judges or whether there should be wider consultation according to past practice. (4) whether the Chief Justice of India is entitled to act H 710 SUPREME COURT REPORTS [2015] 13 S.C.R. A solely in his individual capacity, without consultation with other Judges of the Supreme Court in respect of all materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment;" B

135. At the outset, it must be noted that the learned Attorney-General stated at the hearing of the Presidential Reference that the Central Government was neither seeking a . review nor a reconsideration of the Second Judges case. C Therefore, the answers to the Presidential Reference do not depart from the conclusions arrived at by this Court in the Second Judges case. In that sense, this opinion did not take the substantive discussion much further though it substantially resolved some procedural issues and filled in the gaps relating o to the process of appointment of judges to the superior judiciary. In any event, the answers to the three questions mentioned above are: "1. The expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two seniormost puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATIONv. U.0.1. [MADAN B. LOKUR, J.] 711 his individual capacity, without consultation with other A Judges of the Supreme Co.urt, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment."126 B

136. The decision in the Second Judges case read with the opinion given by this Court to the various questions raised in the Presidential Reference or the Third Judges case fully settled the controversies surrounding the procedure to be adopted in the appointment of judges to the superior judiciary. c Issues of primacy of views and consultation with the Chief Justice of India were all answered by the decision and the opinion.

137. It is important to note that the Third Judges case modified one important norm or conclusion of the Second D Judges case. The modification was that the 'collegium' for appointment of judges in the Supreme Court was expanded to consist of the Chief Justice of India and four senior-most judges rather than the two senior-most judges as concluded in the Second Judges case. In this manner, the consultation with E the Chief Justice of India was further broad-based. It was clarified in conclusion 9 as follows: "9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of F the consultation process, as aforestated, are not binding upon the Government of India." This conclusion is important, but seems to have been ignored or overlooked by the President. Samsher Singh's case

138. For a complete picture of the judicial pronouncements on the subject, it is also necessary to refer to 126 Paragraph 44 G H 712 SUPREME COURT REPORTS [2015) 13 S.C.R. A the decision rendered by this Court in Samsher Singh v. State of Punjab. 121 8

139. This case related to the termination of the services of two officers of the subordinate judicial service by the Governor of the State. The issue was whether the Governor could exercise his discretion in the matter personally or should act on the advice of the Council of Ministers. The judicial officers contended that the Governor was obliged to exercise his personal discretion and reliance was placed on Sardari c Lal v. Union of lndia 128 in which it was held that for invoking the 'pleasure doctrine' under Article 311 (2) of the Constitution, the personal satisfaction of the President is necessary for dispensing with an inquiry under clause (c) of the proviso to Article 311 (2) of the Constitution. On the other hand, the State o contended that the Governor was obliged to act only on the . advice of the Council of Ministers.

140. This Court speaking through Chief JusticeA.N. Ray (for himself and four other learned judges) overruled Sardari Lal and held that the decision did not correctly state the law. It E was held that under the Rules of Business, the decision of the concerned Minister or officer is the decision of the President or the Governor as the case may be. It was then concluded: F · G "For the foregoing reasons we hold that the President or . the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative i[1 character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial 127 (1974) 2 SCC 831 (Seven Judges Bench) 128 0 971 ) 1 sec 411 (Five Judges Bench) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 713 Services of the State which is to be made by the Governor A as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the Sta"te is not a personal function but is an executive functiqn of B the Governor exercised in accordance with the rules in that behalf under the Constitution."129

141. In a separate but concurring judgment authored by Justice Krishna Iyer (for himself and Justice Bhagwati) the view c expressed by Chief Justice Ray was accepted in the following words: "We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, D by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic pr exhaustive, these situations relate to (a) the choice of E Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but F refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the G responsibility for the step. "130

142. An additional reason was given by the two learned judges for coming to this conclusion and that is also important 129 Paragraph 88 "' Paragraph 154 H 714 SUPREME COURT REPORTS [2015] 13 S.C.R. A for our present purposes. The additional reason relates to the independence of the judiciary. For this, reference was made to Jyoti Prakash Mitter v. Chief Justice, Ca/cutta. 131 The question in that case related to the determination of the age of a !>itting judge of the High Court under Article 217(3) of the B Constitution. 132 This Court held that the age determination should be by the President uninfluenced by the views of the executive. This was on the ground that were the executive to make the determination of the age of a sitting judge, it would 'seriously affect the independence of the Judiciary.' This view C was subsequently reiterated in Union of India v. Jyoti Prakash Mitter. 133

143. The learned judges then held, on the basis of the scheme of the Constitution that had already been adverted to, o that the President means the Council of Ministers and the independence of the judiciary has been safeguarded by Article 217(3) of the Constitution by making mandatory the consultation with the Chief Justice of India in regard to age determination. This would prevent the possibility of extraneous considerations E entering into the decision of the Minister if he/she departs from the views of the Chief Justice of India. It was held that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the executive and if there is a departure from the views of the Chief Justice of India, the Court can F examine the issue in the light of the available facts. In such a 'sensitive subject' the last word should be with the Chief Justice of India. On this interpretation, it becomes irrelevant who formally decides the issue. This is what was held: G H 131 [1965) 2 SCR 53 (Five Judges Bench) 132 217. Appointment and conditions of the office of a Judge of a High Court.- (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. '33 (1971) l SCC396(FivcJudgesBench) SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 715 "In the light of the scheme of the Constitution we have A 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 thatthe President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, B satisfaction or decision is constitutionally secured when his Ministers 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 C making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of lridia and the Court will D have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the E rejection of his advice being ordinarily regarded as prompted by oblique considerations 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."134 F

144. This decision is important for three key reasons: (1) It recognized, judicially, the independence of the judiciary. (This was before the First Judges case which recognized that the independence of the judiciary was a basic feature of the Constitution). (2) It cleared the air by concluding that the G President was obliged to act on the advice of the Council of Ministers, even on the issue of appointment of judges. This was 'formalized' by the Constitution (Forty-second Amendment) 134 Paragraph 149 H 716 SUPREME COURT REPORTS [2015] 13 S.C.R. A Act, 1976. (3) In a sense, this decision was a precursor to the primacy conclusion in the Second Judg.es case with the last word on the subject being with the Chief Justice of India.

145. There are two observations that need to be made B at this stage. Firstly, Justice Krishna Iyer penned the decision in Samsher Singh on behalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did not refer to this decision in the First Judges case. The significance of this failure is that while in Sams her Singh it was held by Justice Bhagwati that c the 'last word' must belong to the Chief Justice of India, in the First Judges case it was held by Justice Bhagwati that the 'ultimate power' is with the executive. This completely divergent view, though in different circumstances, is inexplicable since the underlying principle is the same, namely, the status of the o Chief Justice of India with reference to the affairs concerning the judiciary. The second observation is that the 'last word' theory was not and has not been questioned by the executive in any case, even in the Second Judges case. Therefore, the 'last word' principle having been accepted, there is now no reason to go back on it or to repudiate it. It may be mentioned in the 'last word' context that ever since the Constitution came to be enacted, writes Granville Austin, quoting from Chief Justice Mehr Chand Mahajan's 'A Pillar of Justice': E F G "Nehru 'has always acted in accordance with the advice of the CJI', he recalled, except in rare circumstances, despite efforts by state politicians with 'considerable pull' to influence him."135 Sankalchand Sheth's case

146. Another decision of considerable significance is Union of India v. Sankalchand Himatlal Sheth. 136 That case pertained to the transfer of judges from one High Court to 135 Granville Austin: Working a Democratic Constitution page131 136 (1977) 4 sec 193 (Five Judges Bench) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 717 another and the interpretation of Article 222(1) of the A Constitution. 137 Referring to the independence of the judiciary as also Article 50 of the Constitution it was said by Justice Y.V. Chandrachud: "Having envisaged that the judiciary, which ought to act B as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that . concept a concrete form by making various provisions to secure and safeguard the independence of the c judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State."

147. On the meaning of consultation by the President D with the Chief Justice of India in the context of Article 222 of the Constitution, it was held that it has to be full and effective consultation and not formal or unproducti~e. It was said: "Article 222(1) which requires the President to consult E the Chief Justice of India is founded on the principle that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to consider F the situation fairly, competently and objectively. But there can be no purposeful consideration of a matter, in the 137 222. Transfer of a Judge from one High Court to another.-(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. (2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. G H 718 SUPREME COURT REPORTS [2015] 13 S.C.R. absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision .taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President, of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter, of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1 ), therefore, means full and effective, not formal or unproductive, consultation."138

148. It was observed that though 'consultation' did not mean 'concurrence' yet, as held in Samsher Singh consultation with the Chief Justice of India should be accepted and in such a sensitive subject the last word must belong to the Chief Justice of India. It was noted that if there is a departure from the counsel of the Chief Justice of India, the Court would have the opportunity to examine if any extraneous considerat1ons entered into the decision. 139 "' Paragraph 37 139 Paragraph 41 A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 719

149. This view was reiterated by Justice Krishna lyer(for A himself and Justice Fazl Ali). 140 Significantly, it was added that: 'It seems to us that the word, 'consultation' has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of lndia.' 141

150. The greater significance of Sankalchand Sheth lies in the conclusion, relying upon R. Pushpam, that for a meaningful consultation, both parties must have for consideration full and identical facts. It was said: B c "The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution". In order that the two minds may be able to confer and produce a mutual impact, it is D essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision."142

151. This view was accepted in the First Judges case E by Justice Bhagwati, 143 Justice Fazal Ali, 144 Justice V.D. Tulzapurkar145 and Justice D.A. Desai. 146 It was also accepted in the Second Judges case by Justice Pandian. 147 Memorandum of Procedure- 30.6.1999

152. Following up on the decision and opinion rendered in the Second Judges case and the Third Judges case, the Minister for Law in the Government of India framed and prepared one Memorandum of Procedure for the appointment "' Paragraph 115 141 Paragraph 115 142 Paragraph 39 143 Paragraph 30 144 Paragraph 563, 564 and 569 1 " Paragraph 632 and 663 140 Paragraph 848 and 849 147 Paragraphs 129 to 133 and 164 F G H 720 SUPREME COURT REPORTS [2015] 13 S.C.R. A of a judge of the Supreme Court and another for the appointment of a judge of the High Court. These were shared with the Chief Justice of India. None of the each successive Chief Justices of India have complained or criticized any of the Memoranda or adversely commented on them, or at least · B we have not been told of any such complaint or objection. No one, including any successive Law Minister of the Government of India, complained that the Memoranda were unworkable or caused any hindrance or delay in the appointment of judges or did not correctly reflect the views of this Court in the two C decisions mentioned above or that they did not conform to any provision of the Constitution, either in letter or in spirit or even otherwise, or at least we have not been told of any such constraint. These Memoranda remained operational and the appointment of judges to the superior judiciary made subsequent thereto has been in conformity with them. No one complained about the inability to effectively work any Memorandum of Procedure. 0 E F

153. We were invited by Mr. Fali S. Nariman to mention the procedure for the appointment of judges both in public interest and for reasons of transparency. The Memorandum of Procedure for the appointment of judges of the Supreme Court and the High Court are available on the website of the Department of Justice of the Government of lndia 148 and therefore it is not necessary to make a detailed mention of the procedure. Similar Memoranda have been referred to in the Second Judges case by Justice Pandian. 149

154. A reading of the Memoranda makes it explicit that G a proposal recommending the appointment of a judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend 148 http"{ldoi gov jn/si!es/defau!Vfiles/memohc pdf <for High Court Judges) http:lldoi gov in/si!es/defau!Vfi!es/memosc pdf (for Supreme Court judges) 149 Paragraph 96 and 97 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 721 the name of any person he should forward the same to the A Chief Justice for his consideration. Although it is not clearly spelt out, it is implicit that the Chief Justice is not obliged to accept the suggestion of the Chief Minister. 8

155. It is al&o significant and important to note that in the Memoranda, consultation by the judges in the collegium with 'non-judges' for making an appointment to the Supreme Court is postulated and it is not prohiblied for making an appointment to the High Court. That is to say, a 'collegium judge' is not prohibited from taking the opinion of any person, either c connected with the legal profession or otherwise for taking an informed decision regarding the suitability or otherwise of a person for appointment as a judge of the High Court or the Supreme Court. That this is not unknown is clear from a categorical statement of Justice Verma in an interview that: D "For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult even lawyers belonging to the middle level. Similar consultation took place in the case of High Courts. I E recorded details of every consultation. I wish all my correspondence is made public."

156. Therefore, during the evolution of the system of appointment of judges four cobwebs were cleared. They were: F ( 1) The role of the President- he/she was expected to act on the advice of the Council of Ministers even in the appointment of judges; (2) The initial recommendation for the appointment of a judge of a High Court was to originate from the Chief Justice of the High Court and for the appofntment of a judge of the G Supreme Court from the Chief Justice of India; (3) Consultation between the President and the Chief Justice of India is an integrated participative process with the result that the President has the final say in the appointment of a judge under H 722 SUPREME COURT REPORTS [2015) 13 S.C.R. A certain circumstances and the Chief Justice of India (in consultation with and on the unanimous view of the other judges consulted by him/her) has the final say under certain circumstances; and (4) The Union of India accepted these propositions without hesitation in the Third :1udges case. B Amendments to the Constitution

157. Apart from judicial discourses on the appointment of judges, Parliament too hasllad its share of discussions. On as many as four occasions, it was proposed to amend the C Constitution in relation to the procedure for the appointment of judges of the Supreme Court and the High Courts. These proposed amendments are considered below. (a) The Constitution (Sixty-seventh Amendment) D Bill, 1990

158. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced in the Lok Sabha on 181 h May, 1990 and it proposed to set up a National Judicial Commission (for short the NJC), though not in line with the recommendations of the E LCI. The composition of the NJC was to vary with the subject matter of concern, namely, the appointment of a judge of the Supreme Court or the appointment of a judge of the High Court.

159. For the appointment of a judge of the Supreme F Court, in terms of the proposed Article 307Aofthe Constitution, the NJC was to consist of the Chief Justice of India and two other judges of the Supreme Court next in seniority to the Chief Justice of India. For the appointment of a judge of the High Court, the NJC was to consist of the Chief Justice of India, the G Chief Minister or Governor (as the case may be) of the concerned State, one other judge of the Supreme Court next in seniority to the Chief Justice of India, the Chief Justice of the High Court and the judge of the High Court next in seniority to the Chief Justice of the High Court. There was no provision H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 723 for the appointment ofthe Chief Justice of India or the Chief A Justice of the High Court.

160. The procedare for the transaction of business of the NJC was to be determined by the President in consultation with the Chief Justice of India and was subject to any law made by Parliament.

161. TheAmendmentACt also provided that in the event the recommendation of the NJC is not accepted, the reasons therefor shall be recorded in writing.

162. The Bill was criticized (in part) by the Arrears 8 c Committee which stated that: "The Committee is unable to find any logic or justification for different commissions .... Keeping in view the objects and reasons for the constitution of the commission, D namely, to obviate the criticism of executive arbitrariness in the matter of appointment and transfer of High Court judges and to prevent delay in making appointments, there is no justification for the executive through the Chief Minister to be on the commission. Instead of removing E the vice of executive interference which has vitiated the working of the present system the presence of the Chief Minister on the recommendatory body actual alleviates him from the status of a mere consultee to the position of an equal participant in the selection process of the F recommendatory body. By making the Chief Minister an equal party when he is not equipped to offer any view in regard to the merit, ability, competency, integrity and suitability of the candidates for appointments, the scope G of executive interference is enhanced."150 ·

163. The Bill was not taken up for consideration due to the dissolution of the Lok Sabha in May, 1991. 150 Paragraph 7.8 H 724 SUPREME COURT REPORTS [2015] 13 S.C.R. A (b) The Constitution (Ninety~eighth Amendment) Bill, 2003 8

164. On 22"d February, 2000 - barely 8 months after the issuance of the (Revised) Memorandum of Procedure mentioned above - the Government of India issued a notification setting up a National Commission to Review the Working of the Constitution (for short the NCRWC), including the procedure for the appointment of judges of the superior judiciary. The terms of reference of the NCRWC were c as follows: "The Commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features."

165. On 26th September, 2001 an Advisory Panel of the NCRWC issued a Consultation Paper on Superior Judiciary.151 This Paper dealt with the procedure for appointment of judges of the Supreme Court and the High Courts, the age of retirement of judges, the transfer of judges of the High Courts and the procedure for dealing with 'deviant' behavior of a judge and for his/her removal. D E F

166. In the context of appointment of judges of the G superior judiciary, paragraph 8.20 of the Paper is significant since it tacitly acknowledges that the procedure evolved over the years particularly as a result of the Second Judges case 151 The Consultation Paper can be found on the website of the Law Ministry. This was accessed on 2°• May, 2015: http://lawmin.nic.in/ncrwc/finalreporU H v2b1-14.htm SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 725 and the Third Judges case was quite satisfactory. Paragraph A 8.20 reads as follows: "8.20 Purpose of 671h Amendment Bill served by the judgement in SCAORA: We have set out hereinabove the several methods of appointment (to Supreme Court B and High Courts) suggested by the various bodies, committees and organizations. We have also set out the method and procedure of appointment devised by the 1993 decision of the Supreme Court in SCA ORA 152 and in the 1998 opinion rendered under Article 143. It would c be evident therefrom that the 1993 decision gives effect to the substance of the Constitution (Sixty-sev~nth Amendment) Bill, without of course calling it a 'National Judicial Commission', and without the necessity of amending the Constitution as suggested by the said D Amendment Bill. Indeed, it carries forward the object underlying the Amendment Bill by making the recommendations of the Chief Justice of India and his colleagues binding on the President. The 1998 opinion indeed enlarges the 'collegium'. In this sense, the E purpose of the said Amendment B.ill evidenced by the proviso to Article 124(2) and the Explanation appended thereto, is served, speaking broadly. The method of appointment evolved by these decisions has indeed been hailed by ~everal jurists and is held out as a F precedent worthy of emulation by U.K. and others. (See the opinion of Lord Templeman, a member of the House of Lords, cited hereinabove.) The said decisions lay down the proposition that the "consultation" contemplated by Articles 124 and 217 should be a real and effective G consultation and that having regard to the concept of Judicial independence, which is a basic feature of the Constitution, the opinion rendered by the Chief Justice 152 Second Judges case H 726 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c of India (after consulting his colleagues) shall be binding upon the Executive. In this view of the matter, much of the expectations from a National Judicial Commission (N.J.C) have been met. The said Constitution Amendment Bill was, it would appear, prepared after a wide and elaborate consultation with all the political parties and other stakeholders. However, the aspect of disciplinary jurisdiction remains unanswered. We may however discuss the concept of an N.J.C. which may cover both appointments and matters of discipline."

167. The Paper acknowledged that the Second Judges case and the Third Judges case 'speaking broadly' served the purpose of the Constitution (Sixty-seventh Amendment) Bill and that 'much of the expectations from a National Judicial D Commission (N.J.C) have been met.' The shortfalls in expectations were not specified in the Paper except that of the disciplinary jurisdiction which did not arise and was not dealt with in the Second Judges case or the Third Judges case. However, it is important to note that a dispassionate jurist Lord Templeman, a member of the House of Lords held the view that the system of appointment of judges in India ought · to be followed in England as well. Apart from him, the system of appointment of judges laid down by these decisions 'has been hailed by several jurists and is held out as a precedent E F worthyofemulation'.

168. Be that as it may, the NCRWC submitted its Report to the Prime Minister on 31"1 March, 2002. In Chapter? of the Report relating to the judiciary, the NCRWC recommended in G paragraph 7 .3.7 thereof the establishment of a National Judicial Commission (for short the NJC)". It was observed that such a commission was necessary for 'the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges' H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 727 in line with the integrated participatory consultative process A suggested by this Court in the Second Judges case·and the Third Judges case. This is what the NCRWC had to say: is provided for before making such D "The matter relating to manner of appointment of judges had been debated over a decade. The Constitution B (Sixty-seventh Amendment) Bill, 1990 was introduced on 181h May, 1990 (9 1 h Lok Sabha) providing for the institutional frame work of National Judicial Commission for recommending the appointment of judges to the Supreme Court and the various High Courts. Further, it c appears that latterly there is a movement throughout the world to move this function away from the exclusive fiat of the executive and involving some institutional frame work whereunder consultation with the judiciary at some appointments. The system of consultation in some form is already available in Japan, Israel and the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for a collegium of the Chief Justice of India and two other judges of the Supreme Court for making E appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives F due importance to and provides for the effective participation of both the· executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial G Commission under the Constitution. The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of: H 728 SUPREME COURT REPORTS [2015] 13 S.C.R. A (1) The Chief Justice of India: Chairman (2) Two senior most judges of the Member Supreme Court: (3) The Union Minister for Law Member B and Justice: (4) One eminent person nominated by the President after consulting the Chief Justice of India: Member c The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary."153 D

169. Pursuant to the recommendations of the NCRWC, the Constitution (Ninety-eighth Amendment) Bill, 2003 was introduced in Parliament on or about 81h May, 2003. The Statement of Objects and Reasons of the Bill states, inter alia, that the Government of India has been committed to the setting up of an NJC for appointment of judges of the Supreme Court, E Chief Justices and Judges of the High Courts as well as their transfer so as to provide for the effective participation of both the executive and the judicial wings of the Government. It is mentioned that the NCRWC also considered this matter and recommended the establishment of an NJC. F

170. The Statement of Objects and Reasons refers to the composition of the NJC and while the NCRWC had recommended the nomination 'in the NJC of one eminent person by the President of India after consulting the Chief G Justice of India, the Constitution (Ninety-Eighth Amendment) Bill modified this recommendation and proposed that one eminent citizen be nominated by the President of India in consultation with the Prime Minister of India for a period of H 153 Paragraph 7.3.7 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] three years. 729 A

171. The Constitution (Ninety-eighth Amendment) Bill proposed the insertion of Chapter IVA in the Constitution consisting of one Article namely Article 147A. This Article related to the establishment of the NJC in terms of the B Statement of Objects and Reasons.

172. The Bill was not passed in any House of Parliament due. to the dissolution of the Lok Sabha in March 2004 and the general elections being called. (c) The Constitution (One Hundred and Twentieth c Amendment) Bill, 2013

173. A third attempt was made to amend the Constitution for the purposes of appointment of judges of the superior judiciary. This was by the introduction of the Constitution (One D Hundred and Twentieth Amendment) Bill, 2013 introduced in the Rajya Sabha on 24th August 2013. 17 4. The Statement of Objects and Reasons to the Bill referred to the Second Judges case and the Third Judges E case as well as the Memorandum of Procedure. It was mentioned that the Memorandum confers upon the judiciary itself the power of appointment of judges of the superior judiciary. 154 It was further stated that after a review of the pronouncements of this Court and relevant constitutional F provisions, a broad based judicial appointment commission could be established· for making recommendations for the selection of-judges. This commission would provide a meaningful role to the executive and the judiciary to present their viewpoint and make the participants accountable while G introducing transparency in the selection process. The Statement of Objects and Reasons also mentioned that the proposed Bill would enable equal participation of the judiciary 154 This is factually incorrect. The Memorandum was drawn up by the Law Minister and did not confer any power upon the judiciary. H 730 SUPREME COURT REPORTS [2015] 13 S.C.R. A and the executive in the appointment of judges to the superior judiciary and also make the system more accountable and thereby increase the confidence of the public in the judiciary.

175. The Constitution (One Hundred and Twentieth B Amendment) Bill proposed the insertion of Article 124A in the Constitution establishing a commission known as the National Judicial Appointments Commission (for short the NJAC). The composition of the NJAC, the appointment of its Chairperson and Members, their qualifications, conditions of services, c tenure, functions and the procedure as well as the manner of selection of persons for appointment as Chi.ef Justice of India, judges of the Supreme Court, Chief Justices and other judges of the High Courts was to be provided by law made by Parliament. D E

176. The Constitution (One Hundred and Twentieth Amendment) Bill was passed by the Rajya Sabha on 51 h September 2013 but the Lok Sabha was dissolved in May 2014 before the Bill could be sent to it and the general elections called.

177. Strangely, the Statement of Objects and Reasons completely overlooked the fact that there already was 'equal participation of the judiciary and the executive in the appointment of judges to the superior judiciary.' In the Second F Judges case it was clearly, explicitly and unequivocally stated that: G H "The process of appointment of Judges to. the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] the occasion of primacy does not arise." 155 731 A However, in the event of a difference of opinion, one of the constitutional authorities must have the final say and given the constitutional convention over the decades the final say ought to be with the Chief Justice of India, the head of the B judiciary in India under certain circumstances and with the President under certain circumstances. Otherwise, a stalemate or deadlock situation could arise which the Constituent Assembly obviously did not anticipate from two constitutional functionaries. The Second Judges case and the Third Judges c case gave this shared responsibility to the President and the Chief Justice of lndia. 156 For the appointment of a judge of the Supreme Court, the collegium of 5 (five) judges must make a unanimous recommendation. The President is entitled to turn down a 4-1 or 3-2 recommendation. If the unanimous D recommendation does not find favour with the President for strong and cogent reasons and is returned to the collegium for reconsideration, and it is unanimously reiterated, then the President is obliged to accept the recommendation. However, if the reiteration is not unanimous, then the President is entitled E to turn down the recommendation. The theory which the Constitution (One Hundred and Twentieth Amendment) Bill, 2013 [and subsequently the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014] sought to demolish that 'judges appoint judges' is non-existent. F (d) The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014

178. The fourth and final attempt (presently successful and under challenge in these petitions) to amend the G Constituti.on was by the introduction on 11 1 h August, 2014 of "' Paragraph 486(1) 156 I am somewhat uncomfortable with the word 'primacy' while dealing with the President and the Chief Justice of India. In the context of the appointment of judges, the word 'responsibility' used by the LCI in its 14th Report seems more appropriate. H 732 SUPREME COURT REPORTS [2015] 13 S.C.R. A the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014. This Bill was passed by the Lok Sabha on 13th August, 2014 and by the Rajya Sabha on 14th August, 2014. It received the ratification of more than one half of the States as required by Article 368(2) of the Constitution and received the B assent of the President on 31st December, 2014 when it became the Constitution (Ninety-ninth Amendment) Act 2014.

179. It may be mentioned en passant that the learned Solicitor General was requested to place on record the c procedure adopted by the State Legislatures for ratification of the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 but that information was not forthcoming, for reasons that are not known. The intention was not to question the factum of ratification but only to understand the process and to add o transparency to the process, since there have been instances in the United States where the courts have examined the issue of the ratification of an amendment to the Constitution. 157 Transparency is not a one-way street.

180. Section 1 (2) of the Constitution (Ninety-ninth E Amendment) Act 2014 provides that it shall come into force on such date as the Central Government may by notification in the official gazette, appoint. The appointed date is 13th April, 2015. F

181. Simultaneous with the passage of the Constitution (One Hundred and Twenty-FirstAmendment) Bill, Parliament also considered the National Judicial Appointment Commission Bill, 2014. The Bill was introduced in Parliament on 11th August, 2014. It was passed by the Lok Sabha on 13th G August, 2014 and by the Rajya Sabha on 14th August, 2014. 157 See for example: Hammond v. Clark, 136 Ga. 313 (1911 ), Fahey v. Hackmann, 291 Mo. 351 (1922), Associated Industries of Oklahoma v. Oklahoma Tax Commission, 176 Okla. 120 (1936), State of Wisconsin v. Adam S. Gonzales, 253 Wis.2d 134 (2002), The State v. Swift, 69 Ind. 505 (1880) etc. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 733 The National Judicial Appointments Commission Act also A received the assent of the President on 31 •1 December, 2014 and it was brought into force by a gazette notification issued on 131hApril, 2015.

182. Both the Constitution (Ninety-ninthAmendment)Act, _ 2014 and the National Judicial Appointments Commission Act, 2014 are challenged in this and a batch of connected writ petitions. 8 Conclusions on the factual background

183. The conclusions that can be drawn from the C background historical facts are as follows: ( 1) The independence of the judiciary has been always recognized and acknowledged by all concerned. (2) Prior to Independence, the appointment of a judge to D a superior court was entirely the discretion of the Crown. The Constituent Assembly felt that such a 'supreme and absolute' power s~ould not vest in the President or the government of the day or the Chief Justice of India (as an individual) and E therefore a fetter was placed on that power by requiring the President to mandatorily consult the Chief Justice of India (with the discretion to consult other judges) for the appointment of a judge to the Supreme Court. For the appointment of a judge of the High Court also, consultation with the Chief Justice of India F was mandatory. In addition, consultation with the Chief Justice of the High Court and the Governor of the State was mandatory. Significantly, there is no mention of consultation with anybody from civil society. (3) Any doubt about the individual role of the President in G the process of appointment of judges came to rest and it was clear that the President was expected to act only on the advice of the Council of Ministers. H 734 SUPREME COURT REPORTS (2015] 13 S.C.R. A B C D E (4) Similarly, the Chief Justice of India is not expected to act in an individual or personal capacity but must consult his/ her senior judges before making a recommendation for the appointment of a judge. (5) Dr. Ambedkar and the Constituent Assembly did not accept the 'unfettered discretion' theory in the CAD but this view was subsequently rejected in the First Judges case which brought in the 'ultimate power' theory propounded by Justice Bhagwati and Justice Desai. (6) Executive interference in the appointment process (with perhaps an informal method of 'take over') had started around the time of Independence and got aggravated post Independence, peaking towards the end of the 1980s. (7) Not a single instance was given to us where the President recommended a person for appointment as a judge of the Supreme Court or the High Court. The Chief Minister of a State might have made a recommendation (although no instance was given to us) but that was required to be routed through the Chief Justice of the High Court, as per the Memorandum of Procedure. (8) Only one instance was given to us, pre the First Judges case where an appointment as a judge of the High Court was made without the concurrence of the Chief Justice F of India. Post the First Judges case as many as seven such appointments were made. This is a clear indication that the 'ultimate power' theory propounded in the First Judges case translated into 'absolute executive primacy'. The dream of Dr. G Ambedkar became a nightmare, thanks to the political executive. (9) The 'ultimate power' theory or the 'absolute executive primacy' theory is now diluted and the last word in the appointment of a judge of the Supreme Court is shared H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 735 between the President and the Chief Justice of India in terms A of the Second Judges case and the Third Judges case. Historically, giving the last word to the executive has been criticized by no less than the Attorney-General Shri M.C. Setalvad who chaired the Law Commission of India when the 14th Report was given. That system has not worked well at all B as noted from time to time. (10) The National Commission to Review the Working of the Constitution as well as a responsible judge from the House of Lords were of the opinion that the procedure for c appointment of judges as laid down in the Second Judges case and the Third Judges case broadly serves the purpose of maintaining the independence of the judiciary and providing a suitable me.thod for appointment of judges of the superior Courts. D

184. This is not to say that the 'collegium system' is perfect. Hardly so. During the course of hearing, some critical comments were made with regard to the appointment of some judges to this Court which, it was submitted by the learned Attorney-General would not have been possible were it not for E the failure of the collegium system. Even the petitioners were critical of the collegium system. However, I must express my anguish at the manner in which an 'attack' was launched by some learned counsel appearing for the respondents. It was F vitriolic at times, lacking discretion and wholly unnecessary. Denigrating judges is the easiest thing to do - they cannot fight back - and the surest way to ensure that the judiciary loses its independence and the people lose confidence in the judiciary, which is hardly advisable. The Bar has an equal (if G not greater) stake in the independence of the judiciary and the silence of the Bar at relevant moments is inexplicable. The solution, in the larger canvas, is a democratic audit, an audit limited to the judiciary and the Rule of Law. If some positive . H 736 SUPREME COURT REPORTS [2015] 13 S.C.R. A developments can be incorporated in the justice delivery system (in the larger context) they should be so incorporated.

185. In this context, it is interesting to recall the words of Dr. Ambedkar on the working of the Constitution: ' ... however good a Constitution may be, it is sure to turn out bad because those who ,are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly .upon the nature of the Constitution."158

186. Both the 'absolute executive primacy' system or the 'ultimate power' theory and the 'collegium system' of appointment of judges of the Supreme Court and the High Courts were acceptable systems in their time. The 'executive primacy' system was, unfortunately, abused by the executive and the judiciary could do precious little about it, bound as the judges are by the Rule of Law. It is because of this abuse that the constitutional provisions were revisited at the instance of the Bar of this Court and the revisit gave the correct interpretational insight into our constitutional history and the constitutional provisions. It is this insight that resulted in the Second Judges case and a meaningful and pragmatic interpretation of the Constitution.

187. That the Second Judges case was correctly decided by the majority was accepted in the Third Judges case by the Attorney-General and, what is more important, by the President (aided and advised by the Council of Ministers) who did not seek a reversal of the dicta laid down in the Second Judges case.

188. To say, as was conveyed to us during the hearing of 158 http://parliamentofindia.nic in/lsldebateslvol11 p11 him B C 0 E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 737 the case, that the collegium system has failed and that it needs A replacement would not be a correct or a fair post mortem. It is true that there has been criticism (sometimes scathing) of the decisions bf the collegium, but it must not be forgotten that the executive had an equally important participative role in the integrated process of the appointment of judges. That the B executive adopted a defeatist or an I-don't-care attitude is most unfortunate. The collegium cannot be blamed for all the ills in the appointment of judges - the political executive has to share the blame equally if not more, since it mortgaged its constitutional responsibility of maintaining a check on what may C be described as the erroneous decisions of the collegium.

189. To say that the executive had no role to play (as was suggested to us) is incorrect to say the least, as is clear from a close reading of the Second Judges case and the D Third Judges case. Even the President did not think so. In fact, the President was clearly of the opinion that the executive or at least the Head of State had a role to play in the appointment of judges. This evident from an article titled "Merit" in the Appointment of Judges'159 which quotes from an issue of India E h January, 1999 the following noting Today magazine of 251 made by the President concerning the appointment of judges of the Supreme Court: "I would like to record my views that while recommending F the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons b!31onging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are given due G consideration. Eligible persons from these categories are available and their under-representation or non representation would not be justifiable. Keeping 159 By Professor M.P. Singh, (1999) 8 SCC (Jour) 1 H 738 A SUPREME COURT REPORTS [2015] 13S.C.R. vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work the Supreme Court is required to handle." The Chief Justice of India is reported to have responded as follows: 8 "I would like to assert that merit alone has been the criterion for selection of Judges and no discrimination has been done while making appointments. All eligible candidates, including those belonging to the Scheduled Castes and Tribes, are considered by us while recommending names for appointment as Supreme Court Judges. Our Constitution envisages that merit alone is the criterion for all appointments to the Supreme · Court and High Courts. And we are scrupulously adhering to these provisions. An unfilled vacancy may not cause as much harm as a wrongly filled vacancy." c D

190. All that was needed to keep the collegium system on the rails was the unstinted cooperation ofthe executive and E an effective implementation strategy, with serious and meaningful introspection and perhaps some fine tuning and tweaking to make it more effective. Unfortunately, the executive did not respond positively, perhaps due to its misunderstanding of the decisions of this Court.

191. On the other hand, an independent and impartial jurist, Lord Templeman praised the integrated consultative collegium system and recommended it as a method that the British could follow with advantage. The learned judge wrote: "However, having regard to the earlier experience in India of attempts by the executive to influence the personalities and attitudes of members of the judiciary, and having regard to the successful attempts made in Pakistan to control the judiciary, and having regard to the unfortunate F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 739 results of the appointment of Supreme Court judges of A the United States by the Pre~ident subject to approval by Congress, the majority decision of the Supreme Court of India in the Advocates on Record case marks a welcome assertion of the independence of the judiciary and is the best method of obtaining appointments of B integrity and quality, a precedent method which the British could follow with advantage."160 While others shower praise on our system of appointment of judges, we can only heap scorn! c Preliminary issue - reconsideration of the Second Judges case and the Third Judges case

192. With this rather detailed history, the preliminary objections raised by the learned Attorney-General need D consideration. The learned Attorney-General raised three preliminary issues: (1) The writ petitions are premature and not maintainable since the 99th Constitution Amendment Act and the NJAC Act have not come into force; (2) The writ petitions are premature and not maintainable since the National E Judicial Appointments Commission has not been constituted and so there is no adverse impact of the 99th Constitution Amendment Act and the NJAC and no facts have been pleaded by the petitioners in this regard; (3) This batch of cases ought to be heard by a Bench of 9 (nine) or more judges since the F decision of this Court in the Second Judges case161 and the Third Judges case162 do not lay down the correct law but require reconsideration. It was submitted that the decisions have the effect of usurping the powers of the President under Article 124(2) and Article 217(1) of the Constitution and that G the judiciary has effectively converted the appointment of judges 160 Supreme But Not Infallible, Essays in Honour of the Supreme Court of India page 48, 53 161 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Nine Judges Bench) 162 Special Reference No. 1 of 1998, (1998) 7 sec 739 (Nine Judges Bench) H 740 SUPREME COURT REPORTS [2015] 13 S.C.R. A to the Supreme Court and the High Courts from 'consultation' between the President and the Chief Justice of India (as occurring in Article 124(2) of the Constitution) into 'concurrence' of the Chief Justice of India and giving birth to a 'right to insist' on the acceptance of a recommendation of the Chief Justice B of India. Moreover, the doctrine of separation of powers between the Legislature, the Executive and the Judiciary has been thrown overboard as also the system of checks and balances inherent in the Constitution. To decide this particular preliminary issue, the learned Attorney-General referred to the C separation of powers in our Constitution, the law and the principles on which this Court should proceed to decide whether an earlier or prior decision rendered requires to be reconsidered. o

193. As far as the first preliminary objection is concerned, it was raised before the 99lh Constitution Amendment Act and the NJAC Act came into force. Now the preliminary objection does not survive since the ggih Constitution Amendment Act and the NJAC Act have in fact been brought into force. The E second preliminary objection has no substance since the question in these petitions relates to the basic structure of the Constitution and the independence of the judiciary. It would be facetious to say that the writ petitions should have been filed after an adverse impact is felt by the alteration of the basic F structure of the Constitution and after the independence of the judiciary is bartered away. If the petitioners were expected to wait that long it would perhaps be too late. That apart, since we have heard these petitions at length, it is advisable to pronounce on the substantive issues raised. Really speaking, it is only the third preliminary objection that needs consideration. G The third preliminary objection and the separation of powers H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 741

194. The issue of the separation of powers has been the A subject matter of discussion in several cases. Broadly, the consistent vie"'! of this Court has been that while the Constitution recognizes the separation of powers, it .is not a rigid separation and there is some overlap.

195. In Ram Jawaya Kapur v. State of Punjab 163 it was held by Chief Justice Mukherjea speaking for this Court: B "It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of C governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been D sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate E legislation when such powers are delegated to it by the legislature. It can also, when so empowered exercise judicial functions in a limited way. The executive _ Government, however, can never go against the F provisions of the Constitution or of any law."164 196, The separation of powers in our Constitution is not as rigid as in the United States. One of the elements of the separation of powers is the system of checks and balances. This too is recognized by our Constitution and Article 226 and G Article 32 Oudicial review) is one of the features of checks and balances. It was so held in Kesavananda Bharati v. State of 163 [1955] 2 SCR 225 (Five Judges Bench) 164 Paragraph 12 H 742 SUPREME COURT REPORTS [2015] 13S.C.R. A Kera/a 165 where it was said by Justice Shelat and Justice Grover as follows: "There is ample evidence in the ConstitlJtion itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree as was found in Ranasinghe case. 166 The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances." 167 B c D

197. In Indira Nehru Gandhi v. Raj Narain 168 the constitutional validity of the Constitution (Thirty-ninth Amendment) Act, 1975 was challenged. By this Amendment E Act, Article 39-A was inserted in the Constitution and the challenge was, inter alia, to clause (4) thereof. 169 While striking F 165 (1973) 4 SCC 225 (Thirteen Judges Bench) 166 1965AC 172 167 Paragraph 577 166 1975 Supp SCC 1 (Five Judges Bench) 169 (4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates to election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause ( 1) to either House of Parliament and such election shall G not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void, or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no H effect. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 743 down the offending clause, it was held by Justice H.R. Khanna: A 6 "A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed c the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd., D Municipal Corporation of the City of Ahmedabad v. New Shorock Spg. & Wvg. Co. Ltd. and State of Tamil Nadu v. M. Rayappa Gounder)." 170 (Internal citations omitted).

198. Justice Mathew held that ours is a cooperative federalism that does not contain any rigid separation of powers E and there exists a system of checks and balances. Harold Laski was quoted as saying that 'Separation of powers does not mean the equal balance of powers. '171 In that context it was held that the exercise of judicial power by the Legislature is F impermissible. The learned judge expressed the view that: "Montesquieu was the first to conceive of the three functions of Government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of Government involved a certain G degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As 110 Paragraph 190 111 A Grammar of Politics (Works of Harold J. Laski), 297 H 744 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c Holdsworth says, Montesquieu convinced the world that he had discovered a new constitutional principle which was universally valid. The doctrine of separation of governmental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of Governmentinto three branches does not imply, as its critics would have us think, three watertight compartments. Thus, legislative impeachment of executive officers or judges, executive veto over legislation, judicial review of administrative or legislative actions are treated as partial exceptions which need explanation."172

199. Justice Y.V. Chandrachud made a distinction between the separation of powers as understood in the United o States and Australia and as understood in India and expressed the following view in this regard: E F G "The American Constitution provides for a rigid separation of governmental powers into three basic divisions, the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v. Ryan 173 the principle of separation of powers "is not a doctrinaire concept to be . made use of with pedantic rigour. There must be sensible 172 Paragraph 318 173 293 U.S. 388 (1935) H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.] 745 approximation, there must be elasticity of adjustment in A response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety". Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive, a host of rules and B regulations are passed by non-legislative bodies, which have been judicially recognized as valid." 174

200. In Minerva Mills Ltd. v. Union of lndia 175 Justice Bhagwati opined that the Constitution has devised a structure c for the separation of powers and checks and balances and held: "It is clear from the majority decision in Kesavananda Bharati case that our Constitution is a controlled Constitution which confers powers on the various D authorities created and recognised by it and defines the limits of those powers. The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and E unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every F organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority."176

201. A little later, it was observed by the learned judge: "It is a fundamental principle of our constitutional scheme, G and I have pointed this out in the preceding paragraph, 74 Paragraph 87 ' 175 (1980) 3 SCC 625 (Five Judges Bench) 176 Paragraph 86 H 746 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of government are divided; the executive, the legislature and the judiciary. Under our Constitution we have no rigid . separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J;, (as he then was) in Indira Gandhi case 'by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged'."177

202. In l.R. Coelho v. State of Tamil Nadu 176 it was held by Chief Justice Sabharwal speaking for the Court that the doctrine of separation bf powers is a part of the basic structure of the Constitution. It was held: "The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati case by the majority. Later, it was reiterated in Indira Gandhi case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution."179 177 Paragraph 87 178 (2007) 2 SCC 1 (Nine Judges Bench) 179 Paragraph 63. This has been reiterated in paragraphs 67, 125 and 129. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.] 747

203. In Bhim Singh v. Union of lndia180 it was held that .. A separation of powers is an essential feature of the Constitution and in modern governance strict separation is neither possible nor desirable. There is no violation of the principle of separation of powers if there is an overlap of the function of one branch of governance with another, but if one branch takes over an B essential function of another branch, then there is a violation of the principle. It was observed by Justice Sathasivam speaking for the Court, while considering the constitutional validity of the Members of Parliament Local Area Development Scheme: C "The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent D of accountability of each branch of the Government. While understanding this concept [of separation of powers], two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict E separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the F position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise offunction of the other branch which results in wresting away of the regime of G constitutional accountability. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of 180 (2010) 5 SCC 538 (Five Judges Bench) H 748 SUPREME COURT REPORTS [2015] 13 S.C.R. A separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability."181 8

204. Finally, in State of Tamil Nadu v. State of Kerala182 there is an elaborate discussion on the separation of powers with reference to several cases decided by this Court. 183 It was held therein that in view of the doctrine of the, separation of powers (and for other reasons as well) the Kerala Irrigation c and Water Conservation (Amendment) Act, 2006 passed by the Kera la Legislature is unconstitutional since it seeks to nullify the decision of this Court in Mul/aperiyar Environmental Protection Forum v. Union oflndia. 184 D

205. The submission of the learned Attorney-General was that the appointment of a judge of the Supreme Court or a High Court is an executive function and this has been so held even in the Second Judges case. Justice Ahmadi held that the appointment of judges is an executive function 185 as did Justice Verma. 186 By an unsustainable interpretation of the E Constitution (an interpretation which, according to the learned Attorney-General must have made Dr. Ambedkar turn in his grave), this executive function has been taken over or usurped by the judiciary and that is the reason why the Second Judges F case requires to be reconsidered and the correct constitutional position deserves to be restored. In other words, by a process of judicial encroachment, the separation of power theory has been broken down by this Court, in violation of the basic structure of the Constitution. G H ORDER KURIAN, J. 1. I wholly agree with the view taken by my D esteemed brother, Chelameswar, J. that there is no situation warranting recusal of Justice Khehar in this case. Now, that we have to pass a detailed and reasoned order as to why a Judge need not recuse from a case, I feel it appropriate also to deal with the other side of the coin, whether a Judge should E state reasons for his recusal in a particular case.

2. One of the reasons for recusal of a Judge is that litigants/the public might entertain a reasonable apprehension about his impartiality. As Lord Chief Justice Hewart said: F "It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."1 And therefore, in order to uphold the credibility of the integrity institution, the Judge recuses from hearing the case. G

3. A Judge of the Supreme Court or the High Court, while assuming Office, takes an oath as prescribed under Schedule Ill to the Constitution of India, that: 1 R v. Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256, (1923] All ER Rep. H 233 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 943 " ... I will bear true faith and allegiance to the Constitution A of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the B Constitution and the laws."

4. Called upon to discharge the duties of the Office without fear or favour, affection or ill-will, it is only desirable, if not proper, that a Judge, for any unavoidable reason like some c pecuniary interest, affinity or adversity with the parties in the case, direct or indirect interest in the outcome of the litigation, . family directly involved in litigation on the same issue elsewhere, the Judge being aware that he or someone in his immediate family has an interest, financial or otherwise that D could have a substantial bearing as a consequence of the decision in the litigation, etc., to recuse himself from the adjudication of a particular matter. No doubt, these examples are not exhaustive.

5. Guidelines on the ethical conduct of the Judges were E formulated in the Chief Justices' Conference held in 1999 known as "Restatement of Judicial Values of Judicial Life". Those principles, as a matter of fact, formed the basis of "The Bangalore Principles of Judicial Conduct, 2002" formulated F at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague. It is seen from the Preamble that the Drafting Committee had taken into consideration thirty two such statements all over the world including that of India. On Value 2 "Impartiality", it is resolved as follows: G "Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but H 944 SUPREME COURT REPORTS [2015] 13 S.C.R. A also to the process by which the decision is made. Application:

2.1 A judge shall perform his or her judicial duties without fc;ivour, bias or prejudice.

2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

2.3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the judge to be . disqualified from hearing or deciding cases.

2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect ttie fair trial of any person or issue.

2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances

2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; B c D E F G H ·SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 945

2.5.2 the judge previously served as a lawyer or was A a material witness in the matter in controversy; or

2.5.3 the judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy: B Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice."

6. The simple question is, whether the adjudication by C the Judge concerned, would cause a reasonable doubt in the mind of a reasonably informed litigant and fair-minded public as to his impartiality. Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high D and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well-meaning public may not entertain any misunderstanding that the recusal was for altogether irrelevant reasons like the cases being very old, involving detailed consideration, decision on several E questions of law, a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, Judge wanting not to cause displeasure to anybody, Judge always wanting not to decide any sensitive or controversial issues, etc. Once reasons for F recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill-will. Therefore, I am of the view that it is the constitutional duty, as reflected in one's oath, G to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping. H 946 SUPREME COURT REPORTS [2015] 13 S.C.R. A B C D E F G

7. In Public Utilities Commission of District of Columbia et al. v. Pollak et al.2, the Supreme Court of United States dealt with a question whether in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programmes through loudspeakers in its passenger vehicles. Justice Frankfurter was always averse to the practice and he was of the view that it is not proper. His personal philosophy and his stand on the course apparently, were known to the people. Even otherwise, he was convinced of his strong position on this issue. Therefore, stating so, he recused from participating in the case. To quote his words, "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judkial functions. This is achieved through training, professional habits, self- discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. H 2 343 U.S. 451 (1952) SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 947 This case for me presents such a situation. My feelings A are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one B takes himself out of a case."

8. According to Justice Mathew in S. Parthasarathi v. , in case, the right-minded persons entertain a State of A.P. 3 feeling that there is any likelihood of bias on the part of the c Judge, he must recuse. Mere possibility of such a feeling is not enough. There must exist circumstances where a reasonable and fair-minded man would think it probably or likely that the Judge would be prejudiced against a litigant. To quote: D "The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing ·authority must make a determination on the . basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that E there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that Justice must not only be done but seen to be done. If right minded persons would think F that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would G think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable '(1974) 3 sec 459 H 948 SUPREME COURT REPORTS [2015] 13S.C.R. A B man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in (Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others, etc. [(1968) 3 WLR 694 at 707]). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings." c

9. There may be situations where the mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus making an attempt for forum shopping by raising baseless submissions on conflict of interest. In the Constitutional Court of South Africa in The o President of the Republic of South Africa etc. v. South , has made two very African Rugby Football Union etc.4 relevant observations in this regard: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."

10. Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. 4 1999 (4) SA 147. E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 949 The reasonableness of the apprehension must be assessed A in the light of the oath of Office he has taken as a Judge to administer justice without fear or favour, affection or ill-will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or pre-disposition or B unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive.

11. These issues have been succinctly discussed by the c Constitutional Court in The President of the Republic of South Africa (supra), on an application for recusal of four of the Judges in the Constitutional Court. After elaborately considering the factual matrix as well as the legal position, the Court held as follows:- D "While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers simply because E they believe that such persons will be less likely to decide the case in their favour, than would other judicial officers drawn from a different segment of society. The nature of the judicial function involves the performance of difficult F and at times unpleasant tasks. Judicial officers are nonetheless required to "administer justice to all persons alike without fear. favour or prejudice. in accordance with the Constitution and the law". To this end they must resist all manner of pressure. regardless of where it comes from. G This is the constitutional duty common to all judicial officers. If they deviate. the independence of the judiciary would be undermined. and in turn. the Constitution itself." (Emphasis supplied) H 950 SUPREME COURT REPORTS [2015] 13 S.C.R. B A

12. The above principles are universal in application. Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the 'reasons is likely to affect C prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case. D JUDGMENT KURIAN, J. 1. Entia Non Sunt Multiplicanda Sine Necessitate (Things should not be multiplied without necessity). This is the first thought which came to my mind after reading the judgments authored by my noble brothers E Khehar, Chelameswar, Lokur and Goel, JJ., exhaustively dealing with the subject. The entire gamut of the issue has been dealt with from all possible angles after referring extensively to the precedents, academic discourses and judgments of various other countries. Though I cannot, in all F humility, claim to match the level of such masterpieces, it is a fact that I too had drafted my judgment. However, in view of the principle enunciated above on unnecessary multiplication, I decided to undo major portion of what I have done, also for the reason that the judgment of this Bench should not be accused G of Bharati fate (His Holiness Kesavananda Bharati Srjpadagalvaru v. State of Kerala and another1 has always been criticized on that account). 1 (1973) 4 sec 225 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 951

2. Leaving all legal jargons and using a language of the A common man, the core issue before us is the validity of the Constitution 99th amendment. It is to be tested on the touchstone of the theory of the basic structure. The amendment has introduced a new constitutional scheme for appointment of Judges to the High Courts and the Supreme Court. During B the first phase of the working of the Constitution, the Executive claimed an upper hand in the appointment and the Chief Justice of India or the Chief Justices of the High Courts concerned were only to be 'consulted', the expression often understood in its literal sense. In other words, the decision was taken by C the Executive with the participation of the Chief Justice. This process fell for scrutiny in one of the celebrated decisions of this Court in Samsher Singh v. State of Punjab and another2 . D

3. In Samsher Singh case (supra), a seven-Judge Bench of this Court, in unmistakable terms, held at paragraph 149 as follows: "149 . ... The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied E on to justify the deviation. is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be F accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister. if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive G 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. 2 (1974) 2 sec 831 H 952 SUPREME COURT REPORTS [2015] 13 S.C.R. A In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue." (Emphasis supplied) B

4. This principle, settled by a Bench of seven Judges, should have been taken as binding by the Bench dealing with the First Judges Case which had a coram only of seven. Unfortunately, it held otherwise, though with a majority of four against three. Strangely, the presiding Judge in the First Judges C case and author of the majority vie·w, was a member who concurred with the majority in Samsher Singh case (supra) and yet there was not even a reference to that judgment in the lead judgment! Had there been a proper advertence to Sams her Singh case (supra), probably there would not have D been any need for the Second Judges Case.

5. It appears, the restlessness on the incorrect interpretation of the constitutional structure and position of judiciary in the matter of appointments with the super voice of the Executive, as endorsed in the First Judges Case, called for a serious revisit leading to the Second Judges Case. Paragraph 85 of the Judgment gives adequate reference to the background. To quote: "85. Regrettably. there are some intractable problems 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 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 functionaries, particularly the executive, in the fond hope E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 953 of getting invigorative solutions to make the justice A 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 B the constitutional 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." (Emphasis supplied) c

6. The nine-Judges Bench in the Second Judges Case overruled the First Judges Case, after a threadbare analysis of the relevant provisions 'in the light of the letter and spirit of the Constitution', holding that appointment of Judges to the D High Courts and the Supreme Court forms an integral part of the independence of judiciary, that independence of judiciary is part of the basic structure of the Constitution of India, and therefore, the Executive cannot interfere with the primacy of the judiciary in.the matter of appointments. Third Judges Case, E in 1998, is only an explanatory extension of the working of the principles in the Second Judges Case by institutionalizing the procedure of appointment, introducing the Collegium.

7. Thus, the structural supremacy of the judiciary in the F constitutionally allotted sphere was restored by the Second and Third Judges Cases.

8. Apparently, on account of certain allegedly undeserving appointments, which in fact affected the image of the judiciary, the politico Executive started a new campaign demanding G reconsideration of the procedure of appointment. It was clamoured that the system of Judges appointing Judges is not in the spirit of the Constitution, and hence, the whole process required a structural alteration, and thus, the H 954 SUPREME COURT REPORTS [2015] 13 S.C.R. A Constitution 991 h Amendment whereby the selection is left to a third body, the National Judicial Appointments Commission (NJAC). The Parliament also passed the National Judicial Appointments Commission Act, 2014 .• which is only a creature of Constitution 991 h Amendment. The validity of the Act is also B under challenge.

9. 'What is the big deal about it?', has been the oft made· observation of my esteemed brother Khehar, J., the presiding Judge, in the thirty days of the hearing of the case, which c included an unusual two weeks long sitting during the summer vacations with the hearing in three different Courts, viz., Court Nos. 3, 4 and 6. When it is held, and rightly so, that there is no requirement for reconsideration of the Second Judges Case, the fate of the case is sealed; there is no need for any further o deal, big or small. Though I generally agree with the analysis and statement of law, in the matter of discussion and summarization of the principles on reconsideration of judgments made by Lokur, J. at paragraph 263, I would like to add one more, as the tenth. Once this Court has addressed E an issue on a substantial question of law as to t~e structure of the Constitution' and has laid down the law, a request for revisit shall not be welcomed unless it is shown that-the structural interpretation is palpably erroneous. None before us could blur the graphic picture on the scheme of appointment of Judges F and its solid structural base in the Constitution portrayed in the Second Judges Case. This Bench is bound by the ratio that independence of judiciary is part of the basic structure of Constitution and that the appointment of Judges to the High Courts and the Supreme Court is an integral part of the concept G of independence of judiciary. And for that simple reason, the Constitution 99 1 h Amendment is bound to be declared unconstitutional and I do so. Thus, I wholly agree with the view taken by Khehar, Lokur and Goel, JJ., that the amendment is H unconstitutional and I respectfully disagree with the view taken · SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 955 by Chelameswar, J. in that regard. Since it is being held by the A majority that the amendment itself is bad, there is no point in dealing with the validity of the creature of the amendment, viz., the National Judicial Appointments Commission Act, 2014. It does not exist under law. Why then write the horoscope of a . stillborn child! B

10. However, I would like to provide one more prod. Professor Philip Bobbit in his famous book 'Constitutional Fate Theory_ of the Constitution', has dealt with a typology of constitutional arguments. To him, there are five archetypes: c historical, textual, structural, prudential and doctrinal. To quote from Chapter 1: "Historical argument is argument that marshals the intent of the draftsmen of the Constitution and the people who adopted the Constitution. Such arguments begin with D assertions about the controversies, the attitudes, and decisions of the period during which the particular constitutional provision to be construed was proposed and ratified. The second archetype is textual argument, argument that is drawn from a consideration of the present sense of the words of the provision. At times textual argument is confused with historical argument, which requires the consideration of evidence extrinsic to the text. The third F type of constitutional argument in structural argument. Structural arguments are claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. The fourth G type of constitutional argument is prudential argument. Prudential argument is self-conscious to the reviewing institution and need not treat the merits of the particular controversy (which itself may or may not be constitutional), E H 956 SUPREME COURT REPORTS [2015] 13 S.C.R. instead advancing particular doctrines according to the practical wisdom of using the courts in a particular way. Finally, there is doctrinal argument, argument that asserts principles derived from precedent or from judicial or academic commentary on precedent."

11. Professor (Dr.) Upendra Baxi has yet anothertool 'episodic', which according to him, is often wrongly used in interpreting the Constitution. To Dr. Baxi, 'structural' is the most important argument while interpreting the Constitution".

12. Structural argument is further explained in Chapter

6. To quote a few observations: "Structural arguments are inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures. They are to be distinguished from textual and historical arguments, which construe a particular constitutional passage and then use that construction in the reasoning of an opinion." xxx. "Structural arguments are largely tactless and depend on deceptively simple logical moves from the entire Constitutional text rather than from one of its parts. At the same time, they embody a macroscopic prudentialism drawing not on the peculiar facts of the case but rather arising from general assertions about power and social choice." "Notice that the structural approach, unlike much doctrinalism, is grounded in the actual text of the Constitution. But, unlike textualist arguments, the passages that are significant are not those of express A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 957 grants of power or particular prohibitions but instead A those which, by setting up structures of a certain kind, permit us to draw the requirements of the relationships among structures." 8

13. Professor Bobbit has also dealt with a sixth approach - ethical, which according to him, is seldom used in constitutional law. In interpreting the Constitution, all the tools are to be appropriately used, and quite often, in combination too. The three constitutional wings, their powers and functions under the Constitution, and their intra relationship being the c key issues to be analysed in the present case, I am of the view that the 'structural tool' is to be prominently applied for resolving the issues arising in the case. In support, I shall refer to a recent judgment of the U.S. Supreme Court in State v. Arizona Independent Redistricting Commission 3 29.06.2015. It is an interesting case, quite relevant to our discussion. U.S. Constitution Article I, Section 4 ,Clause 1 (Election Clause) reads as follows: , decided on D "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in E each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

14. Arizona Constitution, Article IV, Part 1 , to the extent F relevant, reads as follows: "Section 1. (1) Senate; house of representatives; reseNation of power to people. The legislative authority of the state shall be vested in the legislature, consisting G of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently 3 Manu/USSC/0060/2015 H 958 A SUPREME COURT REPORTS [2015] 13 S.C.R. of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature." 8 Thus, under Section 1, people are involved in direct legislation either by the process known as 'initiative' or 'referendum'. While the initiative allows the electorate to adopt positive legislation, referendum is meant as a negative check. Popularly, the process of initiative is said to correct 'sins of c omission' by the Legislature while the referendum corrects 'sins of commission' by the Legislature.

15. In 2000, Arizona voters adopted Proposition 106, an initiative aimed at the problem of gerrymandering. Proposition 106 amended Arizona's Constitution, removing redistricting D authority from the Arizona Legislature and vesting it in an independent commission, the Arizona Independent Redistricting Commission (AIRC). After the 2010 census, as after the 2000 census, the AIRC adopted redistricting maps for congressional as well as state legislative districts. The E Arizona Legislature challenged the map which the Commission adopted in 2012 for congressional districts arguing that the AIRC and its map violated the "Elections Clause" of the U.S. Constitution. F G H

16. Justice Ginsburg and four other Justices formed the majority and held that the independent commission is competent to provide for redistricting. To quote the main reasoning: "The Framers may not have imagined the modern initiative process in which the people's legislative powers is coextensive with the state legislature's authority, but the invention of the initiative was in full harmony with the Constitution's conception of the people as the font of governmental power." SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 959

17. However, Chief Justice Roberts and three other A Justices dissented. Chief Justice Roberts pointed out that the majority position has no basis in the text, structure, or history of the Constitution and it contradicts precedents from both Congress and the Sup·reme Court. The Constitution contains seventeen provisions referring to the 'Legislature' of a State, B many of which cannot possibly be read to mean 'the people'. To quote further: "The majority largely ignores this evidence, relying instead on disconnected observations about direct c democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy. Nowhere does the majority explain how a constitutional provision that vests redistricting authority in "the Legislature" permits a State to wholly exclude "the Legislature" from D redistricting. Arizona's Commission might be a "noble endeavor" although it does not seem so "independent" in practice but the "fact that a given law or procedure is efficient. convenient. and useful ... will not save it if it is contrary to the Constitution" INS v. Chadha, 462 U.S. E 919, 944 (1983)." "The constitutional text, structure, history, and precedent F establish a straightforward rule: Under the Elections Clause, "the Legislature" is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state G legislature need not be exclusive in congressional districting, but neither may it be excluded." H 960 SUPREME COURT REPORTS [2015] 13S.C.R. A B c "The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. See Vieth v. Jubelirer, 541 U.S. 267 (2004 ); ante, at 1. But our inability to find a manageable standard in that area is no excuse to abandon a standard of meaningful interpretation in this area. This Court has stressed repeatedly that a law's virtues as a policy innovation cannot redeem its inconsistency with the Constitution." (Emphasis supplied)

18. While wholly agreeing with the historic, textual, prudential and doctrinal approaches made by Khehar and D Lokur, JJ., my additional stress is on the structural part. The minority in Arizona case (supra), to me, is the correct approach to be made in this case. F

19. Separation of powers or say distribution of powers, E as brother Lokur, J. terms it, is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each, branch which Khehar, J. has stated as 'core functions', and which I would describe as powers G central. There shall be no interference on powers central of · each branch. What the Constitution is, is only for the court to define; whereas what the constitutional aspirations are forthe other branches to detail and demonstrate. As held in Sam sher H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [KURIAN, J.] 961 Singh case (supra) and the Second and Third Judges Cases, A selection of Judges for appointment in High Courts and the Supreme Court belongs to the powers central of the Judiciary and the permissible checks and balances are provided to other branches lie in the sphere of appointment. If the alignment of tectonic plates on distribution of powers is disturbed, it will B quake the Constitution. Once the constitutional structure is shaken, democracy collapses. That is our own painful history of the Emergency. It is the Parliament, in post-Emergency, which corrected the constitutional perversions and restored the supremacy of rule of law which is the cornerstone of our C Constitution. As guardian of the Constitution, this Court should vigilantly protect the pristine purity and integrity of the basic structure of the Constitution. Direct participation of the Executive or other non-judicial elements would ultimately lead D to structured bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud. According to Justice Roberts, court has no power to gerrymanderthe Constitution. Contextually, !would say, the E Parliament has no power to gerrymander the Constitution. The Constitution ggth amendment impairs the structural distribution of powers, and hence, it is impermissible.

20. One word on the consequence. Though elaborate arguments have been addressed that even if the constitutional F amendment is struck. down, the Collegium does not resurrect, according to me, does not appeal even to common sense. The ggth Amendment sought to 'substitute' a few provisions in the Constitution and 'insert' a few new provisions. Once the process of substitution and insertion by way of a constitutional G amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive. That alone can be the reasonably inferential conclusion. Legal H 962 SUPREME COURT REPORTS [2015] 13 S.C.R. A parlance and common parlance may be different but there cannot be any legal sense of an issue which does not appeal to common sense. 8

21. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have c beeri raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less o patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particuiarly the E Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship F has kept up the expectations of the framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators whi'ch failed the system. To me, it is a ~urable situation yet.

22. There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems. The Second and Third G H SUPREME COURT ADVOCATES-ON-RECORD "ASSOCIATION v. U.0.1. 963 Judges Case had provided effective tools in the hands of the A Executive to prevent such aberrations. Whether 'Joint venture', as observed by Chelameswar, J., or not, the Executive seldom effectively used those tools.

23. Therefore, the Collegium system needs to be improved requiring a 'glasnost' and a 'perestroika', and hence the case needs to be heard further in this regard. 8 JUDGMENT ADARSH KUMAR GOEL, J. Introduction 1. Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution of C India ('the Constitution') deal with the appointment of the judges of the Supreme Court and the High Courts ('the Constitutional courts'), and other allied matters. The Constitution (Ninety-Ninth Amendment) Act, 2014 ('the Amendment Act') inter alia seeks to amend these constitutional provisions. The National Judicial D Appointments Commission Act, 2014 ('the NJAC Act'), enacted simultaneously, purports to regulate the procedure of the National Judicial Appointments Commission (NJAC). The present batch of petitions challenge the constitutional validity oftheAmendmentAct and the NJACAct.. The Supreme Court E Advocates-on-Record Association has filed Writ Petition (Civil) No.13 of 2015, which has been treated as the lead petition.

2.1 have perused the erudite opinions of my esteemed brothers. While I respectfully agree with the conclusions arrived F at by Khehar J., Lokur J. and Kurian Joseph J., and respectfully disagree with the view of Chelameswar J. I prefer to record my own reasons. Pre-Amendment Scheme of Appointment and Transfer·of Judges G . 3. The scheme of appointment and transfer of Judges in force prior to the amendment is set out in two memoranda dated 301 first for appointment of Chief Justice of India (CJI) and judges H h June, 1999 issued by the Government of India - 964 SUPREME COURT REPORTS [2015] 13 S.C.R. A of the Supn:~me Court and second for appointment and transfer of Chief Justices and the judges of the High Courts. 8

3.1 Broadly the procedure laid down in the first memorandum is that appointment to the office of the CJI should be of the senior most judge of the Supreme Court considered fit to hold the office. For this purpose, recommendation is sought from the outgoing CJI and if there is doubt about the fitness of the senior most judge, consultation is made with the other judges under Article 124(2). Thereafter, the Law Minister c puts up the matter to the Prime Minister (PM) who advises the President. After approval of the President, the appointment is notified. For appointment as judges of the Supreme Court, the CJI initiates the proposal and forwards his recommendation to the Union Minister of Law who puts up the o matter to the PM, who in turn advises the President. Opinion of the CJ 1 is formed in consultation with four senior most judges and if successor CJI is not in the said four s.enior most judges, he is also made part of the collegium. CJI also ascertains the views of the senior most judge in the Supreme Court who hails from the High Court from where a person recommended comes. Opinions in respect of the recommendation are in writing and are transmitted to the Government of India for record. If the views of non-judges are solicited, a memorandum thereof and its substance is conveyed to the Government of India. Once appointment is approved by the President of India, certificate of physical fitness is obtained and after the warrant of appointment is signed by the President, the appointment is announced and a notification issued in the Gazette of India. E F

3.2 The procedure laid down in the second memorandum deals with the appointments to the Hign Courts and tran~fers. The Chief Justices of High Courts are appointed from outside. Inter se seniority in a particular High Court is considered for appointment as Chief Justice from that High G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 965 . Court. Initiation of proposal for appointment of Chief Justice A of a High Court is by the CJI. The CJI consults two senior most Judges of the Supreme Court and also ascertains the views of his senior most colleague in the Supreme Court who is conversant with the affairs of the High Court in which the recommendee has been functioning and whose opinion is B likely to be significant in adjudging the suitability of the candidate. The views of the Judges are sent along with the proposal of the Union Minister of Law who obtains the views of the concerned State Government and then submits the proposal to the PM who advises the President. As soon as C appointment is approved by the President, notification is issued in the Gazette of India. As regards the appointment of a Judge of the High Court, the Chief Justice of the High Court communicates to the Chief Minister his views, after consulting D two of his senior most colleagues regarding suitability of the person to be selected. All consultations must be in writing and these opinions are sent to the Chief Minister, along with the recommendation. If the Chief Minister desires to recommend a name, he has to forward the same to the Chief Justice for E his consideration. A copy of the recommendation is also sent to the CJI and the Union Law Minister. The Chief Minister advises the Governor who forwards his recommendation to the Law Minister. The Law Minister considers the recommendation in the light of such other reports (such as 1.8. F report) as may be available to the Government and then forwards the material to the CJI. CJI consults two senior most Judges and also takes into account the views of the Chief Justice and Judges of the High Court (consulted by the Chief Justice) and those Judges of the Supreme Court who are G conversant with the affairs of the candidate. Thereafter the CJI sends the recommendation to the Union Law Minister along with the correspondence with his colleagues. If the Law Minister considers it expedient to refer back the name for opinion of H 966 SUPREME COURT REPORTS [2015] 13 S.C.R. A the State Constitutional Authorities, opinion of the CJI must be obtained. The Law Minister then puts up the recommendation to the PM who advises the President. The correspondence between the Chief Justice, the Chief Minister and Governor inter seisin writing. As soon as the appointment is approved B by the President, physical fitness is ascertained and as soon as warrant of appointment is signed by the President, notification is issued in the Gazette of India.

3.3 Proposal for transfer is initiated by the CJI. Consent C of the Judge concerned is not necessary. The CJI consults four senior most Judges of the Supreme Court and takes into account the views of the Chief Justice of the High Court from which the Judge is to be transferred and Chief Justice of the High Court to which the transfer is to be effected. CJI also o takes into account the views of one or more Supreme Court Judges who are in a position to offer his/their views. The views are expressed in writing, and are considered by the CJI and four senior most Judges. The personal facts relating to the Judge and his response to the proposal are invariably taken into account. The proposal is then referred to the Government. The Law Minister submits the recommendation to the PM who advises the President. After the President approves the transfer, a notification is issued in the Official Gazette. E F

3.4 The above memoranda were issued by the Government of India in the light of unamended Constitutional provisions and the judgment of this Court dated 281 h October, 1998 in Special Reference No.1of1998 1 (Third Judges' case) which in substance reiterates the earlier Nine Judge G Bench judgment in SCA ORA vs. Union of lndia 2 (Second Judges' case).

3.5 Reference may also be made to the unamended 1 (1998) 7 sec 739 2 (1993) 4 sec 441 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 967 constitutional provisions. Article 124 (2) provides that a Judge A of the Supreme Court shall be appointed by the President after consultation with such Judges of the Supreme Court and the High Courts as are deemed necessary. However, the CJI is always to be consulted. Article 217 provides that a Judge of the High Court shall be appointed by the President after B . consultation with CJI, Governor of the State and in case of a Judge other than the Chief Justice, the Chief Justice of the High Court. The question arose before this Court on several occasions as to the value of the opinion of the CJI in the process of 'consultation'. This Court held that under the scheme of the C Constitution a proposal for appointment to the Supren:ie Court must emanate from the CJI and for appointment to the High Court it should emanate from the Chief J.ustice of the High Court and the last word on appointment must rest with the CJl3. D This Court noted that by convention proposals for appointments were always initiated by the judiciary and appointments were made with the concurrence of the CJ I. This view was reiterated in Third Judges' case on the basis of which the above memoranda were issued by the Government of India. E Scheme under the Amendment

4. Reference may now be made to the impugned Amendment. It amends Article 124 and provides that such appointments and transfers will now be on the recommendation F of the NJAC (Section 2). Requirement of mandatory consultation with the CJI and consultation with such Judges as may be considered necessary has been deleted. Convention of initiation of proposal by Chief Justice for the High Courts and CJI forthe Supreme Court and other scheme as reflected G in the memoranda earlier mentioned and as laid down in decisions of this Court has been replaced. The amendment 3 Paras 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J., Para 486, Verma, J., Para 505, Punchhi, J. in Second Judges' case H 968 SUPREME COURT REPORTS [2015] 13 S.C.R. A inserts a new Article 124A, under which the NJAC is to be constituted. It will comprise the CJ I, two senior most judges of Supreme Court next to the CJI, Union Law Minister and two eminent persons to be nominated by the Committee comprising of the PM, the CJI and the Leader of the Opposition in the House of the People/Leader of single largest Opposition Party in the House of the People. The nomination of one of · these eminent persons is reserved for persons belonging to the Scheduled Castes, the Scheduled Tribes, OBC, minorities or women. Under the new scheme, for any proposal five out of C six members must concur. If any two members disagree, no B proposql can be made.

5. The Amendment Act also provides for the Parliament to enact law to regulate the procedure for appointment of o judges of higher courts and to empower the Commission to lay down, by regulations, the procedure for discharge of its functions, the manner of selection of its members and such other matters, as may be considered necessary (Section 3).

6. The NJAC Act provides for the appointment of the E senior most judge of the Supreme Court as CJI, if considered fit to hold the office; and for recommendation for appointment as judge of the Supreme Court (Section 5). The Second proviso to Section 5(2) of the NJAC Act states that the F Commission shall not recommend a person if two members of the Commission do not agree. Apart from its other functions, the Commission would also recommend appointments of Chief Justice and judges of High Courts (Section 6(1 ), (3)). Alternatively, the Commission can seek a nomination from the G Chief Justice of the High Court for recommending appointment as judge of the High Court( Section 6(2)). For appointment of judges of High Courts, however, the Commission must seek prior consultation with the Chief Justice of the concerned High Court, who in turn has to consult two senior most judges of the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 969 said High Court and such other judges and eminent advocates A as may be specified. (Section 6(4 )). The Commission is also to seek views of the Governor and Chief Minister of the concerned State. The power of appointment of officers and employees of the Commission is with the Central Government. The Convener of the Commission is the Secretary, Government B of India, in the Department of Justice. Central Government is authorised to make rules for carrying out the provisions of the Act( section 11 ). The Commission is authorised to make regulations consistent with the Act and the Rules. The Rules and the Regulations framed under the Act are required to be C placed before the Parliament, which may modify such rules or regulations(sections 12, 13).

7. The statement of objects and reasons of the amendment mentions that this Court had interpreted the word D "consultation" as "concurrence" in Articles 124(2) and 217 (2) ·of the Constitution (S.2). It further states that after review of the constitutional provisions, pronouncements of this Court and ·' consultation with eminent jurists, it was felt that a broad based National Judicial Appointments Commission should be E established for making recommendation for appointment of judges of the Supreme Court and the High Courts. The Commission will provide meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable while also introducing F transparency in the selection process (S.3).

7.1 Though by notification dated 13th April, 2015, the Amendment and the Act have been brought into force, the Commission has not been constituted so far, as two eminent G persons have not been so far appointed.

7.2 Key Constitutional unamended provisions and the provisions of the Amendment and the Act are as follows:- H 970 A B c D E F G H SUPREME COURT REPORTS [2015] 13 S.C.R. . Unamended Provisions Article 124 xxxx xxxx (2) Every Judge of the Suprema Court shall be appointed by the President by warrant under his consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary purpose and shall hold office until he attains the age of sixty~ five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Article 217. Appointment and conditions of the office of a Judge of a High Court - Every Judge of a High Court shall be appointed by the .President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold the case of an office, additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years: Provisions of the Amend mer There shall be a "124A (1) Commission to be known as Judicial Commission Appointments consisting of the follo'Ning, namely:- National (a)the Chief Justice of India, Chairperson, ex officio; (b two other senior Judges of the Supreme Court next to the Chief Justice of India - Members, ex officio; (c)the Union Minister charge of Law and Justice - Member, ex officio; (d)two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of the Leader of India and Opposition ·in the House of the People or where there is no such Leader of Opposition, the Leader . of single then, largest Opposition Party in the House of the People - Members: that one of the Provided eminent person shall be nominated from amongst the persons belonging Scheduled Castes, Scheduled Tribes, Other Backwatd Classes, Minorities or Woman: that an further Provided eminent person shall be nominated for a period of three years and shall not be eligible for renorrination. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 971 National f:Jo act or proceedings of (2) the . Judicial Appointments' Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

1248. It shall be the duty of the National Judicial Appointments Commission t<>- recommend persons for (a) appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; recommend (b) transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; ensure (c) that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the to lay down by Commission regulations the procedure for the discharge of its functions, manner of selection of persons for appointment and such other matters as may be considered necessary by it.". A B c D E F G H • 972 SUPREME COURT REPORTS [2015] 13 S.C.R. A · 7 .3 The relevant constitutional and statutory provisions are set out separately in an Appendix to this opinion. Rival Contentions

8. The Amendment Act is challenged as ultra vires, inter B a/ia for being beyond the competence of the Parliament as it alters and destroys the basic structure of the Constitution, as embodied in the independence of judiciary in the context of appointment of judges of the higher judiciary. The petitioners submit that the power of the Parliament to amend the C Constitution under Article 368 is limited and does not extend. to altering or destroying the basic structure or basic features of the Constitution. The independence of the judiciary is a constitutional concept, regarded as a basic feature of the · Constitution, and includes insulating the judiciary from D executive or legislative control, primacy of higher judiciary in the matter of appointment of judges to the High Courts and the Supreme Court, non-amendability of conditions of service of judges of the Supreme Court and the High Court to their disadvantage. The Amendment takes away the primacy of the collective opinion of the CJI and the senior most Supreme Court judges by stalling an appointment unanimously proposed by them if the same is not concurred by two non-judge Commission members [second proviso to Section 5(2) and F Section 6(6)]. This endows unchecked veto power to non judges in appointing judges to higher courts, compromising the judiciary's independence. The Amendment also dilutes the judiciary's constitutionally-conferred power by granting unbridled power on the Parliament to control, by ordinary law, the manner of selection of a person for appointment to higher judiciary, which also damages the independence of judiciary. This power enables the Parliament to substitute judiciary's primacy with that of the executive. If allowed to stand, the provision could easily be further amended thereby denying any G E H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 973 effective role for the senior most judges of the higher judiciary A in appointment of judges of the Supreme Court and the High Courts. Thus, the Amendment does not envisage predominant voice for the judges and makes the executive element in appointment of judges dominant which alters and damages the basic structure of the Constitution. that the NJAC Act was void as it was passed by the Parliament before theAmendmentAct became operative. It is also contended B

9. Thus, the contentions on behalf of the petitioners are:- (i) Constitution is supreme and powers of all organs are C defined and controlled thereunder; (ii) Amending power of Parliament is limited by the concept of basic structure as judicially interpreted; (iii) Final interpreter of the Constitution and the scope of D powers thereunder is this Court; (iv) Independence of judiciary and separation of powers are part of basic structure; (v) Primacy of judiciary in appointment of judges is crucial E part of independence of judiciary and separation of powers and thus part of basic structure; (vi) Role of executive and legislature in appointment of judges beif:lg kept at minimum was also part of basic F structure; (vii) The composition of the Commission in the impugned Amendment severally damages the basic structure of the Constitution by destroying primacy of judiciary in appointment of judges and giving controlling role G to the executive and legislature in such appointments; (viii) The impugned amendment enables stalling of appointment of judges proposed by the judiciary unless candidates suggested by the executive are H 974 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c appointed thereby compromising independence of judiciary; (ix) The impugned amendment expands the power of amendment by delegating crucial issues of appointment of judges to Parliament which is against the basic structure of the Constitution; (x) The composition of the Commission will shake confidence of people in Judiciary if Executive or Legislature have dominant voice; and (xi) The impugned Act is beyond legislative competence of the Parliament.

10. The Joint Secretary, Department of Justice has filed a counter affid~vit on behalf of the Union of India (UOI), D defending the Amendment and the Act. UOl's case is that independence of judiciary is only post appointment. Appointment is an executive act and the judiciary's independence has no relevance with the executive act of appointment. UOI submits that judicial independence is to be E coupled with checks and balances and that a contextual reading of Articles 124(2) and 217(1) with the Constituent Assembly Debates (CAD) makes it evident that there is no primacy of the CJI in appointment of judges. Consultation with the CJI was only by way of a check on executive, which had the final say in the matter. Further, provision for consultation with other judges does not justify creation of a collegium. UOl's submission refers to impeachment provisions for removal of judges (Article 124(4 ); Parliament's power to regulate procedure for presentation of an address and investigation G and proof of misbehaviour or incapacity of a judge (Article 124(5)) and to determine salary of judges and provisions pertaining to other aspects of judicial functioning conferring power on Parliament to legislate (Article .125). UOI submits that the decisions of this Court in Second Judges' case and H F ' SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 975 In several countries, such as C Third Judges' case laying down primacy of the judiciary in A the context of consultative process under Articles 124(1) and 217(1) have no relevance to test the validity of the impugned Ninety Ninth Amendment by which provisions of Artides 124(2) and 217(1) stand amended. However, it is contended that the view taken in the said judgments that the judiciary has primacy B in appointment is erroneous, and needs to be revisited. In any case, the UOI contends that the primacy of judiciary in the matter of appointment of judges of the higher judiciary has no connection with independence of judiciary and is not the basic feature of the Constitution. Australia, independence of judiciary exists without primacy of the judiciary in appointments of judges to the higher judiciary. UOI submits that the power conferred on Parliament to enact law to regulate the procedure of the NJAC or to modify the D regulations framed by the NJAC is valid. The NJAC is accountable to Parliament in framing regulations. The presence of Law Minister as a member of the NJAC ensures accountability to public. The presence of two eminent persons is a check and balance on the functioning of other members. E Diversity of members will ensure greater accountability of each member to the other. This will ensure greater public confidence in the functioning of the judiciary. The NJAC will fall unde.r the purview of Right to Information Act, 2005 which will ensure transparency. Even if the Amendment was struck down, original F provisions could not be revived as doctrine of revival does not apply to Constitutional Amendments. The issue was raised in Property Owners' Association vs. State of Maharashtra 4 with respect to Article 31 C of the Constitution which is pending before a nine-judge Bench. It is also submitted that the writ G petition is pre-mature as the new system has not been given a chance to operate and no rights have been affected.

11. The contentions on behalf of the respondents can be • (1996) 4 sec 49 H 976 SUPREME COURT REPORTS [2015] 13 S.C.R. A summed up as follows:- ( a) Power of appointment of judges rests with the executive and role of judiciary is confined to consultation which may or may not be accepted by the executive; (b) Primacy of judiciary in appointments was recognised by erroneous interpretation of unamended provisions of the Constitution and by way of amendment such interpretation has been corrected and thus there is no violation of basic structure. Alternatively larger Bench be constituted to correct the earlier interpretation; (c) Primacy of judiciary in appointments was not inalienable and in changed situation, in the light of experiences gained, the primacy could be done away with or modified; (d) Wisdom of constituent body in making a choice was not open to judicial review; . (e) Taking the Constitution as a whole, value of independence of judiciary could be balanced with other constitutional values of democracy, accountability and checks and balances; (f) Power of amendment was plenary and could not be questioned unless it results in destruction of a pillar of Constitution; (g) Even with power being with executive or power of veto being with executive, independence of judiciary could survive so long as there was protection of tenure and service conditions of judges; (h)Accountability and transparency in functioning of every constitutional organ was part of democracy in which case exclusive power of appointment of judges with B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] the judiciary was undemocratic; 977 A (i) The impugned amendment retains primacy by having three out of six members, out of which two could stop an undesirable appointment. The executive did not have predominant role as two eminent persons were appointed by a committee having the Prime Minister, the CJI and the Leader of Opposition thereby role of Prime Minister being limited. Law Minister and eminent persons as members ensured giving of relevant feedback and ensuring accountability and c transparency.; 8 U) The impugned amendment in conferring power on Parliament and the Central Government in procedural matters did not violate independence of judiciary; and (k) The impugned Act was within legislative competence D of Parliament.

12. Shri Fali S. Nari man, learned senior counsel led the arguments on behalf of the petitioners in the lead petition followed by S/Shri Ram Jethmalani, Anil B. Divan, K.N. Bhat, E Arvind Datar, Dr. Rajeev Dhawan, learned senior counsel and other counsel appearing either in person or as intervenor or otherwise. They have been opposed by learned Attorney General Shri Mukul Rohtagi, learned Solicitor General Shri Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. F Venugopal, Harish N. Salve, T.R.Andhyarujina, Dushyant Dave learned senior counsel and other learned counsel for various States and intervenors or otherwise. I record my gratitude to learned counsel for their painstaking assistance to the Court with their exceptional ability and skill for deciding important G issues arising for consideration. Their contentions will be referred to at appropriate stage to the extent necessary.

13. While generally learned counsel on either side have H 978 SUPREME COURT REPORTS [2015] 13 S.C.R. taken identical stand, Shri Venugopal, appearing for the State of M.P., which is otherwise supporting the amendment, in his alternative submission, filed on 141 h July, 2015 by way of additional propositions, inter alia submitted as follows: "3 Looking at the scheme of the 99'h Amendment and the National Judicial Commission Appointments Act, 2014 (NJACAct), the scheme evolved provides for the constitution of a 6 member Commission and under Article 124-C, for the procedure to be provided under a law made by the Parliament. The NJA C Act has certain salient features that includes under the second proviso to Section 5(2), a provision in the nature of a 'veto', as no appointment can be made if two members of the Commission do not agree to that appointment. This provision is challenged by the Petitioners as the 991h Amendment Act does not make any such provision and to provide for a 'veto', as it were, by two out of six members, is stated to be ultra vires the Amendment Act or, in any event, not a matter of procedure. 4 This submission appears to be correct for the following reasons: a. The principle of 'primacy' of the judiciary, which is a part of judicial independence, must necessarily be read into the NJAC Act as well. Any Act providing for procedure would be ultra vires the Constitutional provision if it does not satisfy the requirement of primacy. The 'veto' provision, therefore, is clearly antithetical to the concept of 'primacy' and must be struck down as being ultra vires the amendment. xxxxxx xx xx xx

6. Irrespective of the nine Judges' Bench judgment, certain concepts in law exist in the matter of the A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 979 functioning of the judiciary in a democracy. The A existence of an independent judiciary is a sine qua non for democracy to flourish. Here, we are concerned with the issue of appointment of judges to the higher judiciary. Whether, the power is executive or not, it cannot be gainsaid that it impinges on the B independence of the judiciary in case the executive were to exclusively have the power to appoint the judges. Such a system of appointment could result in brining into existence judges who are subservient to . the will of the Government, which would be a major C litigant in the Courts. stand affected. Independence therefore, would

7. If the 'veto' is invalid, then the common law principle of majority would apply. The Chief Justice of India and D the two other judges have expertise in the matter of selection of judges to the higher judiciary and also have full knowledge of the functioning of the potential candidates. However, the unanimous view of the three judges would not carry the day if opposed by the other E three members. In every other case, where all six are in agreement on a candidate, no problem in making the right decision would arise. The real question, therefore, is what would be the position if a deadlock arises when the unanimous decision of the three judges F is opposed by the other three members. Needless to state, that if the three judges are not ad idem on a candidate, no 'issue of primacy' would arise and the majority would prevail.

8. It is true that the nine judges case can no more hold the field for the purpose of nullifying the ggth amendment, which, obviously, is inconsistent with the Collegium system evolved by the nine judges G H 980 SUPREME COURT REPORTS [2015] 13 S.C.R. judgment. But that does not mean that the principles enunciated by the said judgment could not be relied upon as being a juristic principle that would be applicable in such cases. In other words, these principles can be said to be relevant for all time to come because of the following reasons: a. The power of appointment can be used to affect or subvert the independence of the appointees when functioning as members of the superior judiciary. b. A system of appointment where the executive voice predominates would affect such independence. c. If however, the voice of the Chief Justice of India, representing the judiciary prevails, even in a system where the executive or anyone else has a minor part to play, this will nevertheless not affect the independence and on the other hand would sub-serve independence. In other words, primacy in the matter of appointment has to be with the judiciary.

11. These are general principles enunciated by the Supreme Court based on the concept of independence of the judiciary. That concept is all pervasive and whenever that situation arises, the Court would, in the same manner as it did in the Second Judges' case , interpret the present Article 124-A. This would mean that the principle of independence underlying the appointment of judges of the higher judiciary would require that the views of the three judges of the Commission, speaking with a single voice would have A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 981 primacy. This would be the result not because the A judgment in the Second Judges' case would bind the Court but because the concept of judicial independence applicable in the case of appointment of judges to the higher judiciary would be applicable wherever and whenever a situation arose where no B explicit provision in the Constitution gave primacy to the judicial wing. In such cases, the validity of the constitutional provision would be upheld and legitimized exactly on the same basis as the cqncept was evolved in the Second Judges' case. As a result, the 99th C amendment to the Constitution, would always be deemed to have been a valid exercise of Constituent power. In the absence of the existence of a 'veto', if the three Judges speak with a single voice, their decision D would prevail. The President would then have to issue the warrant of appointment. xx~xx Apart from the above, petitioners have also

16. contended that the term 'eminent person' is too broad E and that the appointment of eminent persons who have nothing to do with the law and who are not aware of the working of the judicial system would result in a violation of the principle of judicial independence. 'The rule of F purposive interpretation' can be applied to this provision. By application of this rule, the Court can interpret eminent persons to mean only 'persons trained in law' or 'eminent jurists' (see in this regard, P. Vaikunta Shenoy v. P. Hari Sharma (2007) 14 SCC 29 7@ Paras G 11-13 and VG Shukla v. State (DelhiAmn.) (1980 Supp. sec 249@ para 28)" The Issue

14. There being no dispute that a Constitutional H 982 SUPREME COURT REPORTS [2015] 13 S.C.R. C A Amendment can be valid only if it is consistent with the basic structure of the Constitution, the core issue for consideration is whether the impugned amendment alters or damages the said basic structure and is void on that ground. According to the petitioners the primacy of judiciary in appointment of judges B and absence of interference by the Executive therein is by itself a part of basic feature of the Constitution being integral part of independence of judiciary and separation of judiciary from the Executive. According to the respondents primacy of judiciary in appointment of judges is not part of independence of judiciary. Even when appointments are made by Executive, independence of judiciary is not affected. Alternatively in the amended scheme, primacy of judiciary is retained and independence of judiciary is strengthened. The amendment promotes transparency and accountability and is a part of needed reform without affecting the basic structure of the Constitution. To determine the question one has to look at the concept of basic feature which controls the amending power of the Parliament. This understanding will lead to the decision E whether primacy of judiciary and absence of Executive interference in appointment of judges is part of such basic structure. 0 Discussion F A. Concept of Basic Features - As limitation on Power of the Parliament to amend the Constitution

15. Article 368 of the Constitution provides for power to In amend the Constitution and procedure therefor. G Kesavananda Bharti vs. State of Kera/a 5 (Kesavananda Bharti case), the scope of amending power was gone into by a bench of 13-Judges. In the concluding para signed by 9- Judges it was held that "Article 368 does not enable '1973 (4) sec 225 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 983 Parliament to alter the basic structure or framework of the A Constitution". The conclusion was based on interpretation of the word 'amendment'. It was observed that the word was capable of wide as well as narrow meaning and while wide meaning was to be preferred but consistent with the intention of Constitution makers and the context. It could not be given B too wide meaning so as to permit damage to the constitutional values which depict the identity of the Constitution.6

15.1 The basic structure or framework was not exhaustively defined but some of the features of the c Constitution were held to be the illustrations of the basic structure by the majority of seven Judges- Sikri CJ, Shelat, Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. Illustrations by them include Supremacy of the Constitution, democratic form of Government, secular character of the Constitution, D separation of powers between the Judiciary, the Executive and the Legislature, federal character of the Constitution, dignity of the individual secured by basic rights in accordance with Parts Ill and IV, unity and integrity of the nation.7

15.2 It was held that the power of the Parliament to amend E the Constitution was limited by the requirement that basic foundation and structure of the Constitution remains the same. Power of amendment was envisaged to meet the challenge of the problems which may arise in the course of socio economic F progress of the country but it was never contemplated that in exercise of the power of amendment certain inalienable features of the Constitution will be changed. The court referred to various decisions in different jurisdictions dealing with the .scope of amendment of the Constitution. Sikri, CJ. observed G that having regard to importance of freedom of the individual and the importance of economic, social and political justice, 6 (Para 284, Sikri, CJ.); (Para 583, Shela! & Grover, JJ.); (Para 651 Hegde & Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna, J.) 7 Paras 292, 582, 666, 1159, 1426 H 984 SUPREME COURT REPORTS [2015] 13 S.C.R. 0 A mentioned in the preamble the word "amendment" could not be read in its widest sense. The Fundamental Rights could not be amended out of existence. Fundamental features of secularism, democracy and freedom of individual should always subsist. The expression "amendment" had a limited B meaning. Otherwise a political party with two-third majority could so amend the Constitution as to debar any other party from functioning, establish totalitarianism and enslave the people and thereafter make the Constitution unamendable. Thus, the appeal to democratic principles to justify absolute C amending power, if accepted, could damage the very democratic principles. Thus, the amendment m~ant addition or change within the broad contours of the preamble of the Constitution. The Parliament could adjust the Fundamental Rights to secure the objectives of the Directive Principles while maintaining freedom and dignity of every citizen. The dignity and freedom of the individual was held to be of supreme importance. The basic features were held to be discernible not only from the preamble but .the whole scheme of the E Constitution. Shelat & Grover, JJ. observed that the Constitution makers did not desire that the citizens will not enjoy the basic freedoms, equality, freedom of religion etc. so that dignity of an individual is maintained. The economic and social changes were to be made without taking away dignity of the individual. F The vital provisions of Part Ill or Part IV could not be cut out or denuded of their identity. Hegde and Mukherjea, JJ. observed that the power of amendment was conferred on the Parliament. People as such were not associated with the amendment. The Constitution was given by the people to themselves. The voice. G of the members of the Constituent Assembly was of the voice of the people. Two-third members of the two Houses of Parliament did not necessarily represent even the majority of the people. Thus, the two-third members of the two Houses of Parliament could not speak on behalf of the entire people of H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 985 • Even best of the Government was not averse to A the country8 have more and more powers to carry out their plans and programmes which they believe to be in public interest, but freedom once lost could hardly be regained. Every encroachment of freedom sets a pattern for further encroachment. The development was envisaged without B destruction of individual freedoms. Reddy, J. observed if any of the essential features was altered, the Constitutional structure could not maintain its identity. There could be no justice, liberty or equality without democracy. There could be no democracy without justice, equality and liberty. The structure C of the Constitution was an organic instrument. The core commitment to social revolution lies in Parts Ill and IV. They are the conscience of the Constitution. They had roots deep in the struggle for independence. They were included with the D hope that one day victory of people would bloom in India. They connect India's future, present and past. The demand for Fundamental Rights had its inspiration in Magna Carta, the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the US Constitution. Referring to the E statement of Dr. Ambedkar, that Article 32 was the soul of the Constitution and the very heart of it, it was observed that such an article could not be abrogated by an amendment. Kha~na, J. observed that as a result of amendment, the old Constitution could not be done away with. Basic structure of framework F must be retained. It was not permissible to touch the foundation or to alter the basic institutional pattern. What can be amended is the existing Constitution and what must emerge as a result of amendment is not a new and different Constitution but the existing Constitution. What was contemplated by amendment G was varying of the Constitution here and there and not elimination of its basic structure resulting in losing its identity.

15.3 One of the questions considered was validity of ' Paras 652 and 653 H 986 SUPREME COURT REPORTS [2015] 13 S.C.R. A Section 3 of the Twenty-Fifth Amendment Act, 1971 adding Article 31-C as follows:- "416. Section 3 of the twenty-fifth amendment, reads thus: B c D E

3. After Article 31 B of the Constitution, the following article shall be inserted, namely:

31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: "Provided that where such law is made by the legislature of a State, the provisions of this article shall nof apply thereto unless such law, having been reserved for the consideration of the President, has received his assent." F The highlighted part was held by majority to be unconstitutional, for granting immunity from challenge thereby affecting the basic feature of judicial review9 9 Para 1535 A. (Khanna, J.) In my opinion, the second part of Article 31-C is liable to be quashed on the following grounds: (1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along· with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution. (2) The Legislature has been made the final authority to decide as to whether the law made by it is for the objec!S mentioned in Article 31-C. The vice of second part of Article 31-C lies in the fact that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the Legislature precludes a party from showing that the law is not for that H object and prevents a court from going into the question as to whether the G SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 987

15.4 The scope of amending power was again A considered by this Court in the cours(lof challenge to Thirty Ninth Amendment which debarred any challenge to the election of PM and Speaker of the Lok Sabha in Indira Nehru Gandhi vs. Raj Narain 10 • Chandrachud, J. (later the Chief Justice) observed that it is not that only certain named features of the B Constitution are part of its basic structure. The features named by individual judges in Kesavananda Bharti case were merely illustrations and were not intended to be exhaustive. Having regard to its place in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity C of the Constitution, a feature of the Constitution could be held to be a basic feature 11 • He added that undoubted unamendable basic features are:- "(i) India is a Sovereign Democratic Republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second.part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368.The second part of Article 31-C can be severed from the remaining part of Article 31-C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31-C: "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy." D E F 10 (1975) supp. sec 1 11 Para 663 - For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual G case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. But it is needless for the purpose of these appeals to ransack every nook and cranny of the Constitution to discover the bricks of the basic structure. Those that are enumerated in the majority judgments are massive enough to cover the requirements of Shri Shanti Bhushan's challenge. H 988 A SUPREME COURT REPORTS [2015] 13S.C.R. freedom of conscience and the right freely to profess, practise and propagate religion and that (iv) the Nation shall be governed by a Government of laws not of men". 391 8 h Amendment debarring challenge to election inter alia of PM was struck down as being against the basic features of the Constitution. 12 Article 329A, Clause (4) (added by way of Amendment) provided that election law will not apply to a person holding office of PM and Speaker and election of such persons shall not be deemed to be void under any such law. It c was held that the democracy was the part of the basic structure which contemplated free and fair election. Without there being machinery for resolving an election dispute, the elections could not be free and fair which in turn will damage the basic feature of democracy. In absence of any law to deal with validity of o election of PM, the basic feature of rule of law will be violated. Referring to the writing of Madison in "The Federalist'; it was observed that all powers of the Government could not be vested in one Department. No Constitution could survive without adherence to checks and balances. "Just as courts ought not to enter into problems entwined in the "political thicket'', Parliament must also respect the preserve of the courts 13 E ." F

15.5. Validity of Forty-Second Amendment was considered by this Court in Minerva Mills Ltd. vs. Union of /ndia 14 • The court considered the validity of Sections 4 and 55 of the 42"d Amendment Act. By Section 4, Article 31 C was sought to be amended to provide that a law giving effect to Part IV of the Constitution could not be deemed to be void for being inconsistent with Articles 14, 19 and 31 and could not G be challenged on the ground that the said law was not for giving 12 Khanna and Mathew, JJ held that free and fair election was essential for democracy and was part of basic structure. Chandrachud, J. held that right of equality was part of basic structure which was violated. Ray, CJ held that rule of law was basic structure of the Constitution which was violated. 13 Para 688 • (1980) 3 sec 625 1 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH·KUMAR GOEL, J.] 989 effect to the said Part IV. By Section 55, it was provided that A no amendment of the Constitution could be challenged on any ground and that there will be no limitation on the constituent power of Parliament to amend the Constitution. This Court observed that the Constitution had conferred limited amending power on the Parliament which itself was a basic feature of B the Constitution. The Parliament could not expand its amending power so as to destroy the said basic feature of the Constitution. The limited power could not be converted into unlimited one. Clauses 4 and 5 of Article 368 added by Forty Second Amendment were struck down as violative of basic C structure of the Constitution. It was observed that the balance between Part Ill and Part IV of the Constitution was basic feature of the Constitution 15 • Limited amending power of Parliament was also part of basic structure. 16 It was also held D that judicial review to determine whether a law was to give effect to Part IV could not be excluded as judicial review was part of the basic structure. 17 It was also observed that though there is no rigid separation of powers in three departments of the State - the Executive, the Legislature and the Judiciary, E there is broad demarcation. Fine balance between the three organs could not be upset as it will destroy the fundamental premise of a democratic government. The judiciary is entrusted with the duty to keep the Executive and the Legislature within the limits of power conferred on them which is also a b·asic F feature of the Constitution. 18

15.6. In L. Chandra Kumar vs. Union of lndia 19, part of Article 323 -A(2)(d) and 323 - B (3)(d) to the extent it excluded the jurisdiction of High Courts in respect of specified matters for which jurisdiction was conferred on Tribunals was G 15 Para 56 • Paras 17 and 88 1 17 Paras 12, 88 1• Paras 21, 86 and 87 " (1997) 3 sec 251 H .990 SUPREME COURT REPORTS [2015] 13 S.C.R. A struck down as violative of basic structure. Power of judicial review conferred on this Court and the High Courts was held to be integral to constitutional scheme in view of earlier decisions and conferment of power of judicial review on another judicial body could not justify exclusion of jurisdiction of the B High Courts.20

15. 7. In l.R. Coelho vs. State of Tamil Nadu 21 , bench of nine Judges, considered the scope of judicial review of inclusion of a law in Ninth Schedule by a constitutional C amendment thereby giving immunity from challenge in view of Article 31 B of the Constitution. It was held that every such amendment shall have to be tested on the touchstone of essential features of the Constitution which included those reflected in Articles 14, 19 and 21 and principles underlying o them. Such amendments are not immune from the attack on the ground they destroy or damage the basic structure. The Court will apply the 'rights test' and the 'essence of the rights' test taking synoptic view of Articles in Part Ill of the Constitution. It was further observed that the Court has to be guided by the E ·'impact test' in determining whether a basic feature was violated. The Court will first determine if there is violation of rights in Part Ill by impugned Amendment, its impact on the basic structure of the Constitution and the consequence of invalidation of such Amendment22 • F

15.8 In M. Nagaraj vs. Union of lndia 23 , Eighty-Fifth and allied amendments to the Constitution were called in question on the ground of violation of right of equality as a basic feature of the Constitution. While considering the G challenge, it was observed that the Constitution sets out 20 Judicial review by constitutional courts was held to be part of basic structure. (Paras 77, 78) 21 (2001) 2 sec 1 22 Fundamental Rights under Articles 14, 15, 19 and 21 were held to be part of basic structure. (Paras 109 and 147) ,, (2006) s sec 212. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 991 principles for an expanding future. This called for a purposive A approach. to the interpretation. It was observed that a constitutional provision must not be construed in a narrow sense· but in a wide and liberal sense so as to take into account changing conditions and emerging problems and challenges. The content of the rights is to be defined by the Courts. Some B of the concepts like federalism, secularism, reasonableness and socialism reasonableness are beyond the words ofa particular provision. They give coherence to the Constitution and make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the C form of rules. To qualify as essential feature, a principle has to be established as part of constitutional law and as such binding on the legislature. Only then, it could be examined whether it was a part of basic feature. Theory of basic feature was based D on concept of constitutional identity. The personality of the Constitution must remain unchanged. The word 'amendment' postulated that the Constitution survived without loss of identity despite the change. 24 Conclusion:

15.9 It can safely be held that a constitutional amendment has to pass the test of basic structure. Whether or not the basic structure was violated has to be finally determined by this Court from case to case. B. Whether Primacy of Judiciary in Appointment of Judges is Part of Basic Structure E F

16. Whether a feature of the Constitution is basic feature or part of basic structure is to be determined having regard to G its place in the scheme of the Constitution and consequence of its denial on the working of the Constitution.

16.1 The judiciary has been assigned the role of 24 Identity test discussed in M. Nagaraj case (supra) (Para 28) H 992 SUPREME COURT REPORTS [2015] 13 S.C.R. B A determining powers of every Constitutional organ as also the rights of individuals. The disputes may arise between the Government of India and the States, between a citizen and the State or between a citizen and a citizen. Disputes relating to the powers of Union Legislature and the State Legislature or the exercise of the executive power may involve issues of constitutionality or legality. It may involve allegations of malafides even against highest constitutional dignitaries. This requires an impartial and independent judiciary. The judiciary is required to be separate from the executive control. Judiciary C has to inspire confidence of the people for its impartiality and competence. It has not been disputed by learned Attorney General that independence of judiciary is part of the basic structure. It is also undisputed that judicial review is part of basic structure. The decisions of this Court expressly lay down that independence of judiciary and judicial review are part of basic structure. Broad separation of powers between the three departments of the State is a part of doctrine of checks and balances. It is also a part of democracy. Independence of judiciary is integral to the entire scheme of the Constitution without which neither primacy of the Constitution nor Federal character, Social Democracy nor rights of equality and liberty can be effective. D E · F

16.2 The judiciary has apolitical commitment in its functioning. Once independence of judiciary is acknowledged as a basic feature of the Constitution, question is whether power of appointing Judges can be delinked from the concept of independence of judiciary or is integral part of it. Can the independence of judiciary be maintained even if the G appointment of Judges is controlled directly or indirectly by the executive?

16.3 To what extent primacy of judiciary in appointment of judges is part of unamendable basic feature of the H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 993 Constitution. Since the issue has been gone into in earlier A binding precedents, reference to such decisions is apt. As already mentioned, it remains undisputed that power of judidal review, independence of judiciary, broad separation of power~ in three departments of the State, federalism and democracy are the basic features of the Constitution. Stand of the B respondents is that power of appointment of judges does not have impact on such basic features as independence of judges is envisaged post appointment. By an amendment, process of appointment of judges can be altered to reduce the role of judiciary and to increase the role of Executive and Legislature. C Alternatively, it is submitted that no substantial change has taken place in the said roles.

16.4 In Second Judge's case, a Bench of 9-Judges of this Court examined the question of interpretation of D unamended constitutional scheme dealing with the appointment of judges of the Constitution case. The issue was referred to the Bench of 9-Judges on account of doubts having arisen as to the correctness of the view expressed in S.P. Gupta vs. Union of lndia 25 (First Judges' case), laying E down that primacy in the matter of appointment of judges rested with the Central Government26 • The basis of the said decision was that the word 'consultation' used in Articles 124, 217 etc. implied that the views of the consultee need not be treated as binding as the ultimate power of appointment rested with the F Central Government. It was held that the views of the CJ I or other Judges who were consulted may be entitled to great weight but the final view in case of difference of opinion could be taken by the Central Government. The word 'consultation' 25 1981 Supp. SCC 87, Para 30 (Primacy in appointment of judges is held to be of Central Government by holding that obligation of the President (the Central Government) was only to consult the judiciary which could not be treated as binding) 26 Para 25, Pandian J. (Second Judges Case) : Reasons which led to reconsideration of First Judges' case G H 994 SUPREME COURT REPORTS [2015] 13 S.C.R. A could not be read as 'concurrence'. 8

16.5 The view taken was doubted in Subhash Sharma vs. Union of lndia 27• The question whether opinion of CJ I with regard to appointment of Judges was entitled to primacy was referred for consi.deration of a larger bench, as already mentioned. This Court observed that Constitutional phraseology was required to be read and expounded in the context of Constitutional philosophfof separation of powers and the cherished values of judicial independence. The role of c the CJI was required to be recognised as of crucial importance for which the view taken in First Judges' case required reconsideration by a larger Bench. It was noted that there was an anxiety on the part of the Government of the day to assert choice in selection of Judges and if the power to recommend o appointment of Judges was vested in the State Government or the Central Government, the picture was likely to be blurred and process of selection may turn out to be difficult. It was also observed that the judiciary had apolitical commitment and the assurance of non-political complexion of judiciary should E not be divorced from the process of appointment. The phrase "consultation" had to be understood consistent with and to promote the constitutional spirit. The constitutional values could not be whittled down by calling the appointment of judges as an executive act. The appointment was rather the result of F collective constitutional process. It could not be said that power to appoint solely vested with the executive·or that the executive was free to take such decision as it deems fit after consultation with the judiciary. The word "consultation" was used in recognition of the status of high constitutional dignitary and G could not be interpreted literally. Moreover, the appointment not recommended' by Chief Justice of the State and the CJI would be inappropriate and arbitrary exercise of power. The CJI should have preponderant role. Primacy of CJI will improve 21 1991 Supp (1) sec 574 - Paras 31-34, 42-46 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 995 the quality of selection. The view of the Chief Justices of States A and CJI .should be detisive unless the executive had material indicating that the appointee will be undesirable. The view of the majority in First Judges' case did not recognise the said pivotal position of the institution of the CJI and correctness of the said opinion required reconsideration. It was noted that B the Union Government had often stated before Parliament and outside that as a matter of policy it had not made any appointment without the name being given by the CJI and the executive must be held to the standard by which it professed its actions to be judged. Upon reference to larger Bench, the C view taken in First Judges case was overruled in Second Judges' case which was reiterated in the Third Judges case. It held that the term "consultation" in Article .124 should not be literally construed. It was to be construed in the constitutional D background of its purpose and to maintain and uphold independence of judiciary. So interpreted, it was held that in the event of conflicting opinions of the constitutional functionaries, the opinion of the judiciary as symbolized by the view of the CJI and formed in the manner indicated, would E have primacy.

16.6 Pandian, J. held that the requirement of consultation was not relatable to any other service and only applied to appointment of judges in contrast to other high ranking offices. The consultation with the CJI was condition precedent for F appointment and advice given by the judiciary in the process had sanctity. The executive power of appointment comes into play by virtue of Articles 7 4 a11d 163 though it was not specifically provided for in Articles 124 and 217. The State was major litigant. The superior courts were faced with G controversies with political flavour and in such a situation if the executive had absolute say in appointment of judges, the independence of judiciary will be damaged. The Law Commission Reports and opinion of jurists suggested radical H 996 SUPREME COURT REPORTS [2015] 13 S.C.R. A change in appointment of judges by cu~bing the executive power28 • 8

16.7 Kuldip Singh, J. observed that the concept of judicial independence did not only mean the security of tenure to individual judges. There has to be independence of judiciary as an institution so that it could effectively act as an impartial umpire between the Governments and the individuals or between the Governments inter se. It would be illogical to say that the judiciary could be independent when power of c appointment vested in the Executive. The framers of the Constitution never intended to give this power to the Executive which was the largest litigant before the courts 29 • There was established constitutional convention recognising the primal and binding opinion of CJI in the matter of appointment of judges. All appointments since the commencement of the Constitution were made with the concurrence of the CJI. The 14th Report of the Law Commission and discussion in the Parliament on 23rd and 24th November, 1959 were referred • With regard to the statement of Dr. Ambedkar on 24th to 30 E May, 1949 before the Constituent Assembly that the CJI could not be given a veto on appointment of judges, it was observed that primacy of the CJI acting in representative as against individual capacity would not be against the objective of the said statement31 • D F

16.8 Verma, J. observed that the scheme of the Constitution of separation of powers, with the Directive Principles of separation of judiciary from Executive, and role of the judiciary to secure rule 'of law required that appointment G of judges in superior judiciary could not be left to the discretion of the Executive. Independence of judges was required even " Paras 195 and 207 29 Paras 334, 335 30 Para 357 31 Para 392 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 997 at the time of their appointment instead of confining it to the A provisions for security of tenure and conditions of service. It was necessary to prevent influence of political consideration on account of appointments by the Executive. In choice of a candidate, opinion of CJI should have greatest weight. The role of the Executive in the participatory consultative process B was intended to be by way of a check on the exercise of power by the CJI. The Executive element was to be the minimum to eliminate political influence32.

16.9 Accordingly, conclusions were recorded in para 486 C to the effect that initiation of proposal for appointment and transfer could be initiated by the judiciary and in case of conflicting opinions, the opinion of the CJI had the primacy. In exceptional cases the appointment could be declined by disclosing the reasons but if the reasons were not accepted D by the CJI acting in representative capacity, the appointment was required to be made as a healthy convention. The CJI was to be appointed by seniority. The senior most judge, considered fit to hold the office, was to be the CJI.

16.10 Conclusions in Third Judges' case in para 44 E reiterated this view with only slight modification. On that basis, memoranda of procedure mentioned in earlier part of this opinion were issued. The National Commission to Review the Working of the Constitution (NCRWC) headed by Justice F M.N. Venkatachaliah, in its report dated 31 •1 March, 2002, observed that appointment of judges was part of independence of judiciary. It was observed that the Executive taking over the power of appointment and playing a dominant role will be violative, of basic structure of the Constitution, of independence G of judiciary33 •

16.11 Contention of the petitioners is that the said 32 Paras 421, 422, 447 and 450 33 Paras 9.6 and 9.7 . H 998 SUPREME COURT REPORTS [2015] 13 S.C.R. A decisions conclusively recognise primacy of judiciary in appointment of judges inferred from the scheme of the Constitution and such primacy was part of basic structure. 8

16.12 It is submitted that if the Executive has primacy, the power of appointment of Judges can be used to affect or subvert the independence of the appointees as members of the Constitutional Courts. This would be against the intention of the Constitution makers. The unamended provision could not be replaced by the new mechanism unless the new c mechanism ensured that a role of the Judiciary was not ·decreased and the role of the Executive was not increased and the change made had no adverse impact on the functioning of the Constitution. If this contention i~ upheld, the impugned amendment will have to be struck down unless it could be held o that the amended provisions also retained the said primacy. If primacy of judiciary is held not to be a part of basic structure of the Constitution or it is held that the same is still retained, the amendment will have to be upheld. E C. Plea of the Respondents for re-visiting earlier binding precedents

17. The correctness of the view taken in the above decisions was sought to be challenged by learned counsel for the respondents. The ground on which reconsideration of the F earlier view is sought is that the interpretation in Second and Third Judges cases is patently erroneous. Members of the Constituent Assembly never intended that the CJI should have last word on the subject of appointment of Judges. The text which was finally approved and which became part of the G Constitution did not provide for concurrence of the CJI as has been laid down by this Court. It is also submitted that the interpretation taken by this Court may have been justified on account of the abuse of powers by the Executive specially during emergency (as noticed in Union of India vs. H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 999 ) anq in the Law Commission A Sankalchand Himatla/ Sheth34 Reports (particularly 14th and 121 st Reports), the same situation no longer continues. More over there is global trend for Judicial Appointment Commissions. Even without primacy of the judiciary in appointment of judges, the judiciary could function independently. Judicial Appointment Commission was B suggested even earlier. The eminent jurists had criticized the existing mechanism for appointment of Judges and particularly the working of the collegium system. 17 .1 Referring to the scheme of Chapter IV of the c Constitution, learned Attorney General submitted that Executive and the Legislature had the role in the working of the judiciary. Salary and Conditions of Service of Judges are fixed by the Parliament. The Rules for functioning of the Supreme Court are framed with the approval of the President and are subject • D to the law made by the Parliament. Parliament could confer supplementary powers on the Supreme Court. Conditions of service of officers and servants of the Supreme Court are subject to law made by the Parliament. The rules framed by the CJI require approval of the President. There was inter E play of Executive and Legislature in the functioning of the judiciary. Independence of judges was in respect of their security of tenure and service conditions. Manner of appointment did not affect independence of judiciary. Executive appointing Comptroller General of India or Election F Commission did not affect their independence. Power of appointment of judges is the Executive power to be exercised by the President with the advice of the Council of Ministers after consultation with the judiciary. The doctrine of separation of powers or separation of judiciary from Executive does not G require that the Executive could have no role in appointment of judges. Primacy of judiciary in appointment of judges ignores the principles of checks and balances. The 34 1977 (4) sec 193 (referred to in Paras 125 to 130 Second Judges' case) H 1000 SUPREME COURT REPORTS [2015] 13 S.C.R. A interpretation placed in the earlier decisions ignores the principles of transparency and accountability. Even without there being manifest error in earlier decisions, having regard to the sensitive nature of the issue and also the fact that an amendment has now been brought about, the earlier decisions B need to be revisited.

17.2 The stand of learned Attorney General and other learned counsel appearing for the respondents was contested by learned counsel for the petitioners. It was submitted that all c issues sought to be raised by the respondents were duly considered by the Bench of nine-judges. The Central Government sought opinion of this Court under Article 143. A statement was made by the then learned Attorney General that the Second Judges' case was not sought to be reconsidered. o. The view of the nine-Judge Bench was based on earlier binding decisions in Shamsher Singh vs. State of Punjab 35 and Sankalchand case (supra) laying down that the last word on such matters was of the CJI. The expert studies and the Constituent Assembly Debates ruled out pre-dominant role for the Executive or Legislature in appointment of judges. The constitutional scheme did not permit interference of the Executive in appointment of judges. The Executive could give feed back and carry out the Executive functions by making appointments but the proposal had to be initiated and finalised F by the judiciary. Frequent reconsideration of opinions by larger Benches of this Court was not desirable in absence of any doubt about the correctness of the earlier view. E 17 .3 Parameters for determining as to when earlier G binding decisions ought to be reopened have been repeatedly laid down by this Court. The settled principle is that court should not, except when it is demonstrated beyond all reasonable doubts that its previous ruling given after due deliberation and full hearing was erroneous, revisit earlier H "1974 (2) sec a31 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1001 decisions so that the law remains certain. 36 In exceptional A circumstances or under new set of conditions in the light of new ideas, earlier view, if considered mistaken, can be reversed. While march of law continues and new systems can be developed whenever needed, it can be done only if earlier systems are considered unworkable37 B .

17.4 No such situation has arisen. On settled principles, no case for revisiting earlier decisions by larger Benches is made out. As regards the contention that there was patent error in the earlier decisions, the Second Judges' case shows c that the Constituent Assembly Debates are exhaustively quoted and considered. Neither the debates nor the text adopted by the Constitution show that the power of appointment of Judges was intended to be conferred on the Executive or the Legislature. The word 'consultation' as interpreted and D ·understood meant that the final word on the subject of appointment of Judges was with the CJI. The practice and convention ever since the commencement of the Constitution showed that proposal for appointment was always initiated by the Judiciary and the last word on the subject belonged to the E CJI. This scheme was consistent with the intention of the Constitution makers. All the points now sought to be raised by learned Attorney General have been exhaustively considered in the Second Judges case. The contention that earlier situation of Executive interference has now changed also does not justify reconsideration of the earlier view. If the situation has changed, there can be no reason for change of the system which is functioning as per the intention of the Constitution makers when such change will be contrary to basic structure which is not constitutionally permissible. The objection as to G deficiencies in the working of the collegium system will be subject matter of discussion in the later part of this judgment. ·F 36 Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28 to 31 37 2"" Judges' case, Paras 19 to 22 H 1002 SUPREME COURT REPORTS [2015] 13S.C.R A Individual failings may never be ruled out in functioning of any system. The Judicial Appointment Commissions earlier considered were not on the same pattern. Initially proposal to set up Judicial Commission was made prior to Second Judges case, with the object of doing away with the primacy B of the Executive as laid down in First Judges case. In Sixty Seventh Amen9ment Bill, in the Statement of Objects and Reasons, it is mentioned that the object of setting up of Commission was to 'obviate the criticism of arbitrariness on the part of the Executive' 38 . Ninety-Eighth Amendment Bill, C 2003 was introduc~d with a different composition on recommendation of National Commission to review the working of the Constitution. One-Twentieth Amendment Bill, 2013 did. not provide for any composition and left the composition to be provided for by the Parliament. Validity of such proposed Commissions was never tested as such Commissions never came into existence. 0 17 .5 The Judicial Commissions in other countries and provisions of Constitutions of other countries conferring power E on the Executive to appoint Judges may also not call for reconsideration of the Second Judges' case as many of such and similar provisions were duly considered in the Second Judges' case to which reference will be made. No case is thus made out for revisiting the earlier decisions in Second F and Third Judges' cases. D. Consequential consideration of issue of primacy of iudiciary in appointment of judges as part of basic structure.

18. The earlier decisions in Secot:Jd and Third Judges' case have to be taken as binding precedents. Once it is so, it has to be held that primacy of the judiciary in appointment of judges is part of the basic structure. Appointment of judges is 38 The Bill was introduced in the light of 121" Report of the Law Commission. G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.O.L [ADARSH KUMAR GOEL, J.] 1003 part of independence of judiciary. It is also essential to uphold A balance of powers between Legislature, Executive and Judiciary which by itself is key to the functioning of the entire Constitution. The judiciary is entrusted the power to control the power of the Executive and the Legislature whenever it is alleged that the said organs have exceeded their B constitutionally assigned authority. This is the esse,,nce of the democracy. Learned counsel for the petitioners highlighted that at times exercise of powers of Judicial Review by the Constitutional Courts may not be to the liking of the Executive or the Legislature. Particular instances have been given of C decisions of this Court in 2G Spectrum case39 and Coal Scam case4°where actions of the Executive were found to be violative of constitutional obligations causing huge loss to public exchequer. It was submitted that arbitrary distribution of State D. largess by way of giving scarce resources or contracts or jobs or positions of importance akin to 'spoil system' have been held by this Court to be in violation of the Constitution. Policies of the State for arbitrary acquisition of land or in violation of environmental laws have been struck down by this Court. E Dissolution of State Assemblies and dismissal of State Governments have also been struck down by this Court41 • This Court also had to deal with the issues arising out of decisions of Speakers in recognizing or otherwise the defections in Central or State Legislatures 42 instances when the Courts have to deal with validity of Legislative or Executive decisions of far reaching nature. It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or G controlled by the Executive, it will certainly affect impartiality of 39 Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1 40 Manohar Lal Sharma vs. UOI (2014) 2 SCC 532 "S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006) 2 SCC 1; M.C. Me~ta vs. Kamal Nath (1997) 1 SCC 388 42 Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651 • There are enumerable F H 1004 SUPREME COURT REPORTS [2015] 13S.C.R. A judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded. 8

18.1 Submissions of learned Attorney General are that even if appointment of judges is held to be part of independence of judiciary, choice of a particular model is not part of basic structure. The role of the Executive cannot be denied altogether nor there can be any objection to members of civil society being included in the process of appointment. C The primacy of judiciary in appointment of judges is not an absolutist ideal. Power of appointment has to be seen in the light of need for checks and balances. Independence of judiciary is not a uni- dimensional test. There could be inter mingling of other wings in the process of appointment of judges. o After repeal of Articles 124 and 217, basis of Second Judges' case did not survive. Primacy of judiciary in appointment of judges is only in the context of stopping wrong appointment or preventing pre-dominance of the Executive. Even if primacy of judiciary was recognized at a given point of time, the same E could apply only till the Constitution is amended. Two eminent persons could be laymen to give societal view point. The Law Minister was made a member of the Commission for accountability and transparency. As laid down in l.R. Coelho case, inspite of separation of powers, different branches of • In Sahara the Government could have overlapping functiohs43 India Real Estate Corpn. Ltd. vs. SEB/44 , it was observed that under the Constitution there are different values which must be balanced. Thus, independence of judiciary, checks and balances, democracy and separation of powers are to be G considered as a whole. He referred to the background of supersession of judges in the year 1973 and 1977 and selective transfer of judges during emergency as noted in 121•1 F 43 Para 64 44 (2012) 10 SC 603 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1005 • The report records that in A Report of the Law Commission 45 1976, sixteen judges were transferred from the respective High Courts in which they were functioning to other High Courts. This was perceived to be an act of interference with the judiciary. Circular of the then Law Minister providing for transfer and short term appointment of judges considered in First B Judges' case was taken in the said report as the executive interference. The report also mentioned the concern arising outofsupersession in appointmentofCJI, non confirmation of additional judges, transfer of judges giving rise to c apprehension of erosion of independence of judiciary at the hands of the Executive. It was concluded that the model then prevalent (with the primacy of the Executive) had failed to deliver the goods. This led to introduction of 671 h Amendment Bill, 1990. D

18.2 The contentions of learned Attorney General cannot be accepted. The matter having been gone into in great details in above binding precedents which do not require reconsideration, I do not consider it necessary to repeat in detail the discussion which has been recorded in the said E decisions. \

18.3 In Second Judges' case, following findings have been recordea : (i) The word 'consultation' used in Articles 124, 217 and F 222 of the Constitution meant that the opinion of consultee was normally to be accepted thereby according primacy to the judiciary; (ii) The Executive being major litigant and role of judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges; 45 Paras 1.21to1.23, 7.1and7.2 G H 1006 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D (iii) Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges; (iv) Since traits of candidates could be better assessed by the Chief Justice, the view of the Chief Justice as to suitability and merit of the candidate had higher weight; (v) The Chief Justice of India was not to make a recommendation individually but as representing the judiciary in the manner laid down, that is, after consulting the co/legium; and (vi) Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution.

18.4 Referring to fhe constitutional scheme, its background and interpretation, irrespective of the literal meaning of the language employed in Articles 214 and 217 of the Constitution, it was observed that initiation of proposal must E always emanate from the Chief Justice of the High Court/CJ I (in representative capacity as laid down) and last word on any objection thereto should be normally of the CJl.46

18.5 Reference was made to the interpretation of the F word 'consultation' in the context of appointment of judges in earlier judgments in Chandra MoulishwarPrasad vs. Patna High Court47 , Shamsher Singh and Sankalchand cases. It was held that "in practice, the last word in such sensitive subject must belong to CJI, the rejection of his advice being G ordinarily regarded as prompted by oblique considerations vitiating the order." 46 Reasons for holding the primacy in appointment of judges to be with the judiciary have been summarized by Pandian, J. in Para 195 (Second Judges' case) ' 1969 (3) sec 56 4 H ' SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1007

18.6 Reference was also made to the statement of Dr. A Ambedkar that it was dangerous to give power to appoint judges to the Executive or with concurrence of the Legislature.48 Further statement that it was dangerous to give veto power to CJI was explained to mean that the CJI must act not in individual capacity but after consulting senior judges.49 B

18. 7 Needless to say that the Constitution of India is unique. While reference to other Constitutions can be made for certain purposes50, the basic features of Indian Cqnstitution (which may be distinctly different from other Constituti:ons) have c . to be retained and cannot be given a go bye. In the above judgment, in the context of working of Indian Constitution, it Q was held that the role of Executive and Legislature in appointment of judges could not be predominant. Even in the Constituent Assembly, models of other countries were not D found to be suitable to be followed in lndia 51 • As already mentioned the Government of India appointed First Law Commission headed by Shri M.C. Stealvad to review the system of judicial administration and all its aspects. The Commission expres~ly mentioned that the Executive E interference in appointment of Judges has not been congenial to independence of judiciary. The Commission noted that the Chief Ministers were having direct or indirect hand in appointment of Judges which results in appointments being made not on rn.erit but on considerations of community, caste, F political affiliations. The Chief Minister holding a political office is dependent on the goodwill of his party followers. The recommendation of the CJI is more likely to be on merit. An opinion noted in the report mentions that if the Executive G 48 Para 25(5), Pandian, J. 49 Para 392, Verma, J. (Second Judges' case) 50 Such as power of Judicial Review, content of right to life etc. 51 Paras 184 & 192, Second Jud\Jes' case (In para 192 reference is made to famous statement of Dr. Ambedkar about unsuitability of UK and US models in this regard) H 1008 SUPREME COURT REPORTS [2015] 13S.C.R. A continued to have powerful role, the independence of judiciary will disappear and the Courts will be filled with Judges who owe from appointments to politicians52 • It was recommended that the hands of CJI should be strengthened and instead of requiring consultation it should require recommendation by the B CJl53 • There should be requirement of concurrence of the CJl 54 • The Report was discussed in the Parliament and the then Home Minister declared that the Executive was only an order issuing authority and appointments were virtually being made by the CJI. This statement was reiterated by the then Law C Minister55 • Again in 121 st Report, it was observed that appointment of Judges with Executive influence was not conducive to healthy growth of judicial review. Trends all over the world indicate that power of the Executive in appointment of Judges was required to be diluted 56 • The Second Judges' case took care of the ground realities in the light of constitutional convention. It held that the CJI was better equipped to select the best and for appointments being free from Executive domination to inspire public confidence in impartiality and E consistent with the principle of separation of Judiciary from Executive and also consistent with the spirit of Constitution makers. The principle of primacy was recognised and appointment of Judges was held to be integral to the independence of judiciary 57 • To check arbitrary exercise of F power by any individual, it was made mandatory that the Chief Justices consult senior Judges. Thus, primacy of judiciary was recognized in initiating proposal as well as in taking final decision 58 • However, participation of the Executive in giving inputs by suggesting names before the proposal was initiated 0 G H 52 Para 14 53 Para19 54 Para 20 55 Paras 362-371 (Second Judges' case) 56 Paras 7.5- 7.11 (121" Law Commission Report) 57 Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J. 58 Para 486 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1009 or giving feedback even after the proposal was initiated was A permissible. It was noted that right from beginning of the Constitution, all the proposals for appointments were always initiated by the Chief Justices59. View in First Judges' case that primacy in appointment of Judges was of the Central Government was held to be erroneous by larger Bench inter B alia for following reasons : (i) The judiciary has apolitical commitment and if power of appointment of judges is given to the Executive, this will affect independence of judiciary6°; (ii) Rule of law requires that justice is impartial and people have confidence in judiciary being separate and independent of the Executive so that it can discharge its functions of keeping vigilant watch for protection of rights even against the Executive61; (iii) Judiciary has key role in working of the democracy and for upholding the rule of law62 ; c D (iv) The constitutional scheme provides for mandatory consultation with the CJI since the CJI was better E equipped to assess the merit of the candidate which consultation was not provided for in respect of other high constitutional appointmerits63 • (v) The appointment of judges was inextricably linked with F the independence of judiciary and even in the matter of appointment of district judges, the conclusive say was of the High Courts and not of the Government64 • 59 Para 505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376, Kuldip Singh, J. 60 Paras 84 and 197; Pandian, J; Paras 428 and 439, \(erma, J; Para 334, G Kuldip Singh, J 61 Paras 56, 72 to 74 and 207, Pandian, J. 62 Paras 55 to 57, Pandian, J. 63 Para 195 Pandian, J and Para 450, Verma, J.; 64 Paras 447 to 463, Verma, J.; Paras 195 to 197, Pan<lian, J.; Paras 335 and 380, Kuldip Singh, J. (Para 215, Pandian, J. -Appointments and control of H district judges is with the High Courts) 1010 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H (vi) Even in countries where power of appointment of judges was with the Executive, there is demand/ proposal for minimizing the role of the Executive65 • (vii) The effort of the Executive to have say in appointment of judges was found by expert studies to be not congenial to the independence of judiciary 66 • Reference was made to the 14th Report of the Law Commission that if the Executive had powerful voice in appointment of judges, the independence of judiciary will disappear and the courts will be filled with judges who owe their appointments to the politicians. Reference was also made to 121 st Report of the Law Commission to the effect theft even in UK there was thinking to create a check on the power of the Executive to select and appoint judges. ;·~ (viii) Consultation with the CJ I was not envisaged by the Constitution makers to be of formal nature but implied that great weight was to be given so that the last word belonged to the CJl 67 • (ix) Article 50 and the background of its enactment spells out the mandate for appointment of judges being taken away from the Executive and its transference to the judiciary. 68

18.8 In the above background, the forceful contention of learned Attorney General that the scheme of the Constitution did not envisage primacy of judiciary but only mandatory consultation with the CJI and optional consideration with such 65 Para 25(6), Pandian, J. 66 14'h Report of the Law Commission is referred to in paras 64 and 65 by Pandian. J.; 121'' Report of Law Commission is referred to in Paras 184 to 191 and 204, Pandian, J. 67 Paras 383 to 387. Kuldip Singh. J. (However, CJI was not to be the persona designata but as spoke.sman of the judiciary in the manner laid down in the judgment.) 68 Second Judges" case (Paras 74 to 81) SUPREME COURT ADVOCATES-ON-RECORD f'-SSOCIATION v. U.0.1. {ADARSH KUMAR GOEL, J.] 1011 other judges as may be considered necessary cannot be . A accepted, even if it is so suggested by the literal meaning of the words used in the text of the provision. It may be mentioned that the word 'consultation', on account of the scheme of the Constitution, was held to carry special meaning, on a purposive interpretation. The interpretation was not based solely on the B word 'consultation' but on scheme of independence of judiciary. The contention that independence of judiciary was not affected even when the Executive made the appointment is contrary to the expert studies and well considered decisions of this Court. The acknowledged scheme of the Constitution and its working C is not to allow domination of the Executive in appointment of Judges. Such domination affects independence of judiciary, public faith in its impartiality (when the Government is major litigant), brings in extraneous considerations, compromises D merit, weakens·the principles of checks and balances and separation of judiciary from the Executive. Thus, by substitution of the words, the Parliament could not interfere with the primacy of judiciary in appointment of judges and thereby interfer~ with the basic feature of the Constitution. It may be mentioned that E use of similar expression in Article 7 4 of the Constitution in the context of Executiye power of the President to act on "aid.and advice" of Council of Ministers was held to mean that the President was only a formal head. 69 It cannot be suggested that by .amendment of the expression used, constitutional F scheme of the President being formal head can be changed as such amendment will be repugnant to the basic structure of the Constitution. Likewise, even by amendment primacy of judiciary in appointment of judges cannot be excluded. Such primacy existed not merely by word 'consultation' but by virtue G of role of judiciary in working of the Constitution, by CJI being bette·r suited to assess merit of the candidate and on account of Executive being major litigant. There is no change in these 69 Paras 48 and 57-, Shamsher Singh case H 1012 SUPREME COURT REPORTS [2015] 13 S.C.R. A factors even after amendment. It is not thus a question of change of model or of available choice with the Parliament. Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. Similarly, the plea that Parliament is best B equipped to assess the needs of the people is not enough reason to extend the power of Parliament to amend the basic feature of the Constitution. The change of time does not justify greater role for the Executive in appointment of judges. The plea of overlapping role of different Departments of the C Government is against the basic structure as far as appointment of judges is concerned.

18.9 While it is true that the Legislature can even retrospectively clarify its intention and thereby bring about a o change in law70 , in the present context meaning of the unamended provision was not based merely ori the words used but also the entire scheme of the Constitution particularly the independence of judiciary. It has been held that in the context of the Indian Constitution, having regard to the consistent past E practice and to avoid political interference in appointment of judges, and also on account of the CJl/CJ being better equipped to assess the merit of a candidate, proposal must always be initiated by the CJl/CJ and the CJI must also have final word on the subject. It can hardly be doubted that the F Constitution is a dynamic document and has to be interpreted to meet the felt needs of times and cannot bind all future generations. At the same time, it is also now well settled that the amending power is limited to non essential/non basic features and does not extend to altering the basic features G and framework of the Constitution. Primacy of judiciary is certainly a part of the basic feature of the Constitution. If primacy of judiciary in the appointment of judges is held to be 70 Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality, 1969 (2) SCC H 283 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1013 not a part of basic feature, the Parliament may be free to confer A the said power on the Executive or the Legislature or to any other authority which can certainly compromise the independence of judiciary. It will also in turn disturb the doctrine ofseparation of powers and other basic features like rule of law, democracy and federalism and working of the Constitution B as a whole. Independence of judiciary is key element in the entire functioning of the Constitution and such independence is integrally linked with the appointment of judges free from Executive interference. The alternative submission of Shri Venugopal, learned senior counsel appearing for the State of C Madhya Pradesh in Pafas 4 and 8 (reproduced in para 13 above) also supports the conclusion that appointment of judges is part of independence of judiciary and primacy of judiciary in appointment of judges is required to be retained. D The power of appointment of judges cannot be exercised by the Executive as the same will affect independence of judiciary. Even after the original provisions are amended, this principle is still applicable.

18.10 At this stage, it may be mentioned that any E perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature. As Dr. Ambedkar observed 71 :- "The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their G wishes and their politics." F 71 In speech dated 25.11.1949 on conclusion of proceedings of the Constituent Assembly (Page 975 of the CAD). *In his speech as President of the Constituent Assembly quoted in Para 429 of the Second Judges' case) · H 1014 SUPREME COURT REPORTS [2015] 13 S.C.R. A To the same effect Dr. Rajendra Prasad* said :- "If the people who are elected are capable and men o( charactefand integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them." B c D E Even a good system may haye shortcomings in its working on account of individual failures. It may be mentioned that criticism of working may be leveled against working of every organ of the Constitution including the Executive and the Legislature and while all efforts must be continuously made to bring about improvement in every sphere, the basic scheme set up by the Constitution cannot be given a go bye on that ground. It is not necessary to comment upon how good or bad any constitutional authorities have performed in discharge of their duties or how good or bad the judiciary has performed, as the limited question for consideration of the Court is to identify and retain the basic structure of the Constitution in appointment of judges. The improvement in working of existing F system of appointment of judges can be the subject matter of separate consideration which is being proposed but certainly without giving a go bye to the basic features of the Constitution of independence of judiciary. In Manoj Narula vs. Union of Jndia 72 , question considered was how persons with criminal G antecedents could be prevented from being appointed as Ministers. There was also reference to the concern as to how persons with such antecedents could be prevented from being legislators. This Court held that the issue has to be dealt with by those to whom the Constit.ution has entrusted the 12 2014 (9) sec 1 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1015 responsibility and this Court could only enforce the constitutional A scheme. 8

18.11 At this stage, it may be mentioned that the claim of learned Attorney General that the Parliament represented the will of the people or that the amendment represented the will of the people and interference therewith will be undesirable is contrary to the law laid down in Kesavananda Bharti case (supra)73 • The will of the people is the Constitution while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will c of the people. The Constitution was supreme and even Parliament has no unlimited amending power. Learned Attorney General rightly submitted that the last word on the validity of a constitutional amendment is of this Court. Even if the judiciary is not an elected body, it discharges the o constitutional functions as per the will of the people'reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary74• Conclusion: E

18.12 Accordingly, I hold that primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter. The Executive is at liberty to give F suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in Second and Third Judges' cases. E. Whether the Impugned Amendment alters or G damages the basic structure

19. In the above background, the only question which 73 Paras 652 amd 653 74 Paras 328 and 334, Kuldip Singh, J. (Second Judges' case) H 1016 SUPREME COURT REPORTS [2015] 138.C.R. A remains to be considered is whether under the impugned amendment the basic feature of primacy of judiciary in appointment of judges has been altered or damaged. 8

19.1 Learned Attorney General submitted that basic structure comprises many features like several pillars in a foundation, some of which are enumerated in opinions rendered in Kesavananda Bharti case. In judging the validity of a constitutional amendment, test is whether the amendment would lead to collapse of the Constitution. Merely affecting or c impinging upon an Article embodying a feature that is part of the basic structure was not sufficient to declare an amendment unconstitutional. Violation of basic structure of the constitution must be such that the structure itself would collapse. He also relied upon the observations in Bhim Singh Ji vs. Union of o /ndia75 particularly the following observations : "Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharatifl. ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a · trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the 'basic structure' missile." and following observations in Ashoka Kumar Thakur vs. Union of/ndia76 :- ,. (1981) 1 sec 166 " (2008 J 6 sec 1 E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1017 "There are large number of provisions in the A Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various B aspects of human life. The Constitution itself sets out principles for an expanding future -and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs." C

19.2. Applying the above 1ests it was submitted that the Ninety-Ninth Amendment was consonant with and strengthens the independence of judiciary while upholding the democracy, rule of law and checks and balances. NJAC is in sync with the D needs of time and is modelled on checks and balances to ensure a democratic process with plurality of views. NJAC dilutes power of executive in favour of the judiciary. He submitted that identity test was required to be applied which means that after the amendment the amended Constitution E loses the identity of the original Constitution. There is no bar to making changes and to adopt the Constitution to the requirements of changing times without touching the foundation or altering the basic constitutional pattern. He further relied upon the observations in the Indira Gandhi and Minerva Mills F Ltd. cases (supra).

19.3 The learned Attorney General further submitted that the object of the amendment is to broad base the collegiate body so as to provide for participatory and collective role to G the judiciary, the executive and the civil society. The executive has only one member, the Law Minister. The object of having the Law Minister is to provide information about the candidates which information the other members may not have. The H 1018 SUPREME COURT REPORTS [2015] 13 S.C.R. 0 A eminent persons will be independently appointed by a committee comprising of the PM, the CJI and the Leader of Opposition. In this way there is no abrogation of independence of judiciary. Moreover, three of the six members are from the judiciary and thus, the right to reject was available to the judges, B while the executive alone cannot exercise the right to reject. Even in Second Judges' case it is observed that the process of appointment is a participatory process. An area relating to suitability of candidates such as his antecedents and personal character may be better known to consultees other than the C CJI. The expression, 'eminent person' is well known and it means distinguished in charact~r or attainments or by success in any walk of life. The expression 'distinguished' is used in Article 124 (3) providing for eligibility criteria for judges of the Supreme Court. Since the high powered committee comprising three high functionaries is to appoint an eminent person, there is sufficient safeguard against any uncanalised power. The principles of constitutional trust apply to the high powered committee which can be trusted to select the most E appropriate persons. Such eminent persons shall provide inputs for the· qualities which make a person suitable for appointment as a judge. Diversity in composition of the Commission will mitigate the danger of cloning. In other bodies also there are provisions for non judges. For example, F Consumer Protection Act. Reservation in favour of minorities, women, Scheduled Castes, Scheduled Tribes and OBC will have the effect of sensitizing other members for the problems to be faced by these sections. Even in the report of National Commission to Review the Working of the Constitution (NCRWC), also known as Venkatachalliah Commission, a provision for an eminent person was made without prescribing any criteria. The eminent person will be guided by the CJI, who will be the Chairman and best placed to access the legal merit of the candidates. The executive is a key stake holder in G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1019 justice delivery system for which it is accountable to the A Parliament and it cannot be denied role in appointment of judges. Mere possibility of abuse of provision cannot be a ground for holding a provision unreasonable. Reliance has been placed on Mafat Lal Industries Ltd. vs. Union of lndia77 which reads as under:- B "To the same effect are the observations by Khanna, J. in Kesavananda Bharati v. State of Kera/a (SCR at p. 755 : SCC p. 669). The learned Judge said: (SCC p. 821, para 1535) c "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed D for vindicating reasonable belief by experience." To the same effect are the observations in T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of TN. [(1980) 3 SCC 97] (SCR E at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathe/la F Sampathu Chetty [ 1962 (3) SCR 786], this Court observed: ''The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India [(1977) 3 SCC 592] (SCR at p. 77), "it must be remembered G that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a 11 (1997) 5 sec 536 H 1020 SUPREME COURT REPORTS [2015] 13S.C.R. A B c D E government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief'. (Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiarof Sri Shirur Mutt [ (1954) SCR 1005] (SCR at p. 1030)." Transparency and accountability in the matter of appointment are essential for public confidence in the judiciary. In this connection reference has been made to lnderpreet Singh Kah/on vs. State of Punjab78 which reads as under :- "This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions." F It is 19.4 These submissions cannot be accepted. obvious that pre-dominant role of the judiciary, as it exists in light of original Constitutional scheme in taking a final decision on the issue of appointment of judges of the Supreme Court and appointment and transfer of judges of the High Courts, G has been given a go bye. Under the unamended scheme of appointment of judges, which is a basic feature of the Constitution, the President is to make appointment, after consultation with the CJI representing the judiciary. • (2006) 11 sec 356 1 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1021 Disregarding the views of the CJI is permissible in exceptional A situations for recorded reasons having bearing on character and antecedents of a candidate and if such reasons are found to be acceptable to the CJJ. Under the amended scheme, no such final view can be taken by the CJI. Without giving any reason, the Minister or the nominated members can reject the B unanimous view of the judges. Chief Justice of the High Court is not a member of the Commission and has no Constitutional role in appointment/transfer of the judges of the High Courts. Mere fact that without the judges, the Minister and the nominated members cannot make an appointment is not at C par with the situation where a decision itself is taken by the CJI representing the judiciary. The Constitutional power of the Chief Justice of the High Court to initiate proposal for appointment as judge of the High Court has been done away D with, at least as far as the Constitutional provisions are concerned.

19.5 The contention that the amendment strengthens the independence of judiciary or the democracy or brings about transparency or accountability is not shown to be based on E any logic beyond the words. Even if in appointing two eminent members CJI is also a member of-the Committee, the fact remains that the PM and the Leader of the Opposition have significant role in appointing such members, who will have power not only equal to the CJI and two senior most judges of F the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts but also right to reject the unanimous proposal of the CJI and the two senior most judges. Such composition of the Commission cannot be held to be conducive to the G independence of judiciary. Appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting H 1022 SUPREME COURT REPORTS [2015] 13 S.C.R. A the independence of judiciary. C 8

19.6 Contention of learned Attorney General that there is a presumption that the Law Minister and the nominated members will conduct themselves in.dependently and will make value addition in selecting the judges in a better way cannot be accepted. The views of the Constitution makers and eminent expert committees clearly show that role of the Executive in appointment of judges has to be minimum and by and large limited to check the character and antecedents of the candidates and not to finally assess the merit and suitability of such candidates. In this view of the matter, even if the contention that no guideline was required for criteria for appointment of eminent persons when the Committee will be comprised of high dignitaries is accepted the fact remains o that such persons will play not merely supporting but pre dominant role in appointing Supreme Court and High Court judges which will not be congenial to the independence of judiciary. There is no justification for reservation for one of the nominated members being from specified categories. Such E provision is against the scheme of the Constitution and contrary to the object of selecting judges purely by merit. The nature of appointment does not justify any affirmative action for advancement of any socially and educationally backward classes or for the Scheduled Castes or Scheduled Tribes or F women. The appointment of judges has to be on evaluation of merits and suitability of the candidates. Religion, caste or sex of the evaluator has no relevance. The plea that the Law Minister and the nominated members will provide feed back also does not provide any justification for their being members G of the Commission and thereby participating in evaluation and suitability of a candidate for appointment as judge of the Supreme Court or High Courts and having power to overrule unanimous view of judges. The appointment of a judge of the H Supreme Court is normally made out of Chief Justices of High SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1023 Courts or senior judges or eminent lawyers or eminent jurists ·A whose merit is better known to senior judges. Their evaluation has to be impartial and free from any political or other considerations. Persons making selection are required to be best placed to assess their merit and suitability. Pre-dominant and de_cisive role of the judiciary is a requirement not only of B independence of judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the Democracy. The citizens having a grievance of violation of their fundamental and legal rights against the Executive or the Legislature expect that their grievance is C considered by persons whose appointments are not influenced by the Executive or the Legislature. If an appointment is perceived as being influenced by political consideration orany other extraneous influence, faith in impartiality, which is hall D mark of independence of judiciary, will be eroded. The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution.

19.7 In this regard, it may be recalled that the word amendment literally means betterment or improvement and E sponsor of amendment may always claim improvement. Such claim has to be tested by applying the 'identity test' and the 'impact test'. The said tests have already been mentioned in the earlier part of its opinion. The amendment should not affect the identity of an essential feature of the Constitution. The F impact of the amendment on the working of the scheme of the Constitution has to be taken into account79 • This brings to some extent subjective element which is unavoidable even while testing any legislation which is alleged to be violative of fundamental rights and justified on the concept of 'reasonable G restrictions' 80 • In.this regard, effect of Executive interference 79 Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOJ (1978) 1 SCC 248- Para 19; LR. Coelho case - Para 149 80 V.G. Row vs. State of Madras (1952) SCR 597 H 1024 SUPREME COURT REPORTS [2015] 13 S.C.R. . A which has been documented by expert studies cannot be held to be irrelevant or ignored on the ground that this is a subject of wisdom of Parliament. As already mentioned, the working of the Judiciary has affected the Executive and Legislature on several occasions, including (by way of illustration) Privy , Bank Nationalisation Case 82 , Freed<;>m of Press case83, Kesavananda Bharati case (supra), Indira Gandhi case (supra), Minerva Mills case (supra), L. Chandrakumar case (supra), M. Nagaraj case (supra), l.R. Coelho case (supra), S.R. Bommai case 84 B Purses case 81 • c

19.8 The new structure provides for decisive voice with the Commission which apart from judges comprises of Law Minister and two eminent persons to be nominated by a specified committee. Before examining the said structure, it o may be noted that it is not merely the text of the amendment but also its impact and potential which has to be kept in mind on 'identity' of the original scheme and the 'width' of the power under the new scheme85 • In a similar context when an alternative judicial forum was sought to be created to deal with the E company matters in place of High Courts, this Court held that the concept of rule of law required that the new mechanism should, as nearly as possible, have same standards86 • Same view was taken in the context of setting up of National Tax Tribunals to substitute the jurisdiction of the High Courts in tax F matters87• The new scheme may iron out the creases but the mechanism should be comparable to the substituted scheme.

19.9 As already mentioned under the unamended scheme, as authoritatively interpreted by this Court, power of G H 81 Madhav Rao Jivaji Rao Scindia vs. UOI [1971 (1) SCC 85], 82 Rustom Cavasjee Cooper vs. Union of India [1970 (1) SCC 248] 83 Bennett Coleman & Co. Ltd. vs. Union of India [1972 (2) SCC 788] 84 S.R. Bommai vs. UOI [(1994) 3 SCC 1] 85 Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOI (1978) 1 SCC 248 - Para 19; l.R. Coelho case - Para 149 86 Union of India vs. Madras Bar Asson. (2010) 11 SCC 1 - Para 108 87 Madras Bar Asson. vs. UOI (2014) 10 SCC 1 - Pars 136 and 137 . SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1025 initiating a proposal was always with the judiciary. At the time A of making of the Constitution, the draft of the Constitution was circulated to the Federal Court and High Courts to elicit views of the judges. In the memorandum representing the views of the judges, it was mentioned that the existing convention was that appointment of judges was made after referring the matter B to the Chief Justice and obtaining his concurrence 88 .

19.10 In CAD, various models were considered but the system applicable in other countries providing for final say of the Executive or concurrence of Legislature (as in UK and USA) c were found to be unsuitable. It was stated by Dr. Ambedkar that the power could not be left to be exercised on the advice of the Executive or be made subject to concurrence of the Legislature. It was further stated that the Chief Justice could also not be given a veto upon the appointment of judges 89 The Law Commission in its 141 h Report criticised the interference by the Executive in appointment of judges. The matter came up for discussion before the Parliament and the Home Minister and the Law Minister made a statement that all appointments were made on the recommendation of the CJI E as the CJI was familiar with the merits of the candidates. Out of 211, 210 appointments were made with the consent and concurrence of the CJl 90 • It was noted that the procedure for appointment of judges applicable prior to Second Judge's case was that a proposal for appointment was initiated by the F CJI in case of the Supreme Court and by Chief Justice of the High Court in case of the High Court Judges91 • This mechanism was held to be a part of the convention 92 • D •

19.11 In Shamsher Singh case (supra) this Court G 86 Second Judges' case - Paras 360 and 361 89 Statement of Dr. Ambedkar referred in Para 192 in Second Judges' case 90 Debates reproduced in Paras 362 - 368 in Second Judges' case 91 Para 98 Se.cond Judges' case 92 Para 370, Kuldip Singh, J. and Para 505, Punchhi, J. in Second Judges' H 1026 SUPREME COURT REPORTS [2015] 13 S.C.R. A observed that in practice the last word in matters of judiciary must belong to the CJI. The same view was expressed in Sankalchand case (supra) in the context of transfer of judges93 h Report of the Law Commission headed by Justice H.R. Khanna, J. (1979), a Commission was proposed B with a pre-dominant voice of judiciary to deal with the • In 801 0 appointment and transfer of judges. The Report was significant . in the background of supersession of judges in appointment of the CJ I and selective transfer of judges which were perceived to be interference with the independence of judiciary. However, C contrary to the said recommendations, a circular was issued by the Law Minister in 1981 proposing transfer of judges and making appointment of judges for short period which itself was perceived to be interference with the independence of judiciary and was challenged in First Judges' case. As already mentioned, the majority held that primacy in such matters rested with the Central Government94 • The said view was subject matter of severe criticism. Eminent constitutional expert Seervai commented that the Executive was not qualified to E assess the merits or demerits of a candidate. Initiation of a proposal by the Executive was against the intention of the framers of the Constitution. Political, Executive or Legislative pressure should not enter into the appointment of a judge 95 • The Law Commission headed by Justice D.A. Desai in its F 121•1 Report also criticised the system where the Executive had overriding powers in the matter of appointment of judges. He stated that power to appoint and transfer judges of superior courts by the Executive affects independence of judiciary and is not conducive to its healthy growth. He recommended a G Judicial Commission to check the arbitrariness on the part of the Executive in such appointments and transfers 96• 93 Paras 39, 41 Chandrachud, J.; 50-52 Bhagwati, J.; 103, 115 Krishna Iyer, J., 94 Para 30 - First Judges' case 95 Seervai, 41 25.354 96 Para 7 .5 and 7 .8 - 121" Report of the Law Commission h Edition, Constitutional Law of India - Paras 25.350, 25.353 and H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1027

19.12 The interpretation in the Second Judge's case A was in the above historical background. In the context of working of the Indian Constitution, the dominant role of the Executive in appointment of judges adversely affected the independence of judiciary. The judiciary is assigned important role for upholding the rule of law and democracy. independence and its power of judicial review are part of basic structure. Primacy of judiciary in appointment of judges is part of basic structure. In this background question is whether the new scheme retains the said primacy of judiciary in appointment of judges. Its B C

19.13 Under the new scheme, the Law Minister has been given role equal to the CJI. Right from the commencement of the Constitution, this role of the Law Minister was never envisaged while initiating the process and finalizing it. Law D Minister, in participatory scheme, could at best suggest a name or give his comments on the names proposed but the proposal could and was always initiated by the CJI. At the stage of initiation, if equal authority is conferred, this will erode the primacy of judiciary as declared by this Court authoritatively. E Any deviation in the past was always adversely commented upon and held to be undesirable amounting to interference with the independence of judiciary97 • Other two persons to be nominated by a Committee which also has predominant political voice to be placed at par with the CJI in initiating and F finalizing a proposal destroys the original scheme beyond its identity. Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect independence of judiciary but equal participation by the Law Minister and two outsiders in final decision for initiation or G appointment can be detrimental to the independence of judiciary. It cannot be wished away by presuming that the Law Minister and the two distributors will not be influenced by any 97 Para 505, Punchhi, J.; Paras 210,214, Pandian. J.; Paras 361 to 376, Kuldip Singh, J. in Second Judges' case H 1028 SUPREME COURT REPORTS [2015] 13 S.C.R. 0 A extrameous consideration. Such a presumption will be contrary to the acknowledged factual experience. It will also be against the concept of separation of jt 1diciary from the Executive. More over this will be contrary to the basic intention of the Constitution makers. The amendment is not an insignificant amendment B and is not within the basic framework of the working of the Constitution. The very premise and object of the amendment as reflected in the Statement of Objects and Reasons and the stand of the Union of India in its pleadings and during the course of arguments is that the primacy of judiciary was evolved by C erroneous interpretation which is sought to be corrected. It is stated that the primacy of judiciary was undemocratic and denied the Executive a meaningful role. These reasons are untenable for reasons already discussed. As regards the plea of transparency and accountability, the same has to be achieved without compromising independence of judiciary. If on the perceived plea of transparency and accountability, the independence of judiciary is sought to be adversely affected by the Amendment, this will cause severe damage to the functioning of the Constitution. The primacy of judiciary, as already noticed, is integral to the independence of judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The amendment does away with the primacy of even unanimous opinion of the judicial F members as such opinion is not enough to finalise an appointment. While Shri Venugopal has rightly stated in his alternative submission that primacy of judiciary is part of judicial independence and if Executive has pre-dominant voice, it could subvert independence of-judiciary, his submission that the G situation could be retrieved by giving the suggested interpretation cannot be accepted. Such interpretation is not warranted by the text of the amendment or by the principles of interpretation. It is difficult to hold that primacy of judiciary is still retained as a wrong proposal can still be stalled by any E H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1029 two members, including two judges. The primacy of judiciary A as always understood in binding judicial precedents comprises of initiation of name and taking a final call 98 • These two core features constitute identity of the primacy of judiciary. Subject to these two features, any amendment could have been made and if these two features are compromised, the basic identity B of the Constitution can be held to have been altered or damaged.

19.14 There can be no doubt about the propositions forcefully canvassed by the respondents that the legislative c wisdom of the choice of the Parliament was not open to question and that possibility of abuse of power could not affect the existence and exercise of power but these submissions cannot ignore the limitation of basic features. Examining whether basic feature was sought to be altered, is different D from questioning the wisdom of the Parliament. It is testing the power of Parliament conferred by the Constitution. Similarly determining whether the new mechanism complied with the framework of the Constifution is different from the issue of possibility of abuse. independence of judiciary which implies having judges not influenced by any political consideration as per the intention of framers of the Constitution. Even assuming the best of intention, can the power of judicial review by the constitutional courts be subjected to scrutiny by any 'eminent persons' on F the ground that working of the judiciary was perceived to be unsatisfactory. Obviously it will be clear interference with independence of judiciary99 • Same way, constitutionally conferred judicial primacy in appointment of judges cannot be whittled down or sought to be controlled by those who are not G given or allowed to take over such functions. Even granting In the present case, question is of E 98 Paras 471, 478, 486(2), 486 (3), 486(4 and 5) , Verma, J. 99 By way of illustration : P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]; . Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of India vs. Madras Bar Asson. (2010) 11 sec 1; Madras Bar Asson. VS. UOI (2014) 10 sec 1 H 1030 SUPREME COURT REPORTS [2015] 13 S.C.R. A the best of intentions, the Parliament could not act beyond the authority conferred on it by the Constitution. Thus, taking away primacy of judiciary or conferring such primacy on a body which is not at par with the said concept is certainly not a choice available with the Parliament. As already mentioned, the B concept of primacy of judiciary comprises of initiating the proposal and taking a final decision in case any adverse feed back is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be C effectively rejected. The impact thereof being that the appointment of judges could be made under the influence of the Executive represented by the Law Minister or the non-judge members in whose appointment the pre-dominant voice is not of the judiciary. The impact of such appointments will be that the judges appointed will owe their appointments to the Executive which may be destructive of the public confidence and impartiality of judiciary and adversely affect the role of the judiciary as an important impartial ·constitutional organ. As E already noted, the role of the judiciary is to define and regulate working of other constitutional authorities within the scope of roles assigned to them 100 0 •

19.15 If the amendment had merely provided for advisory or recommendatory role to the Law Minister or the non-judicial F members with the professed object of transparency and accountability, the situation may have been different. It may not have, in that case, interfered with the primacy of the judiciary in appointment of judges which is the mandate of the Constitution. Such power cannot be justified under the doctrine G of wisdom of Parliament nor on the principles of trust once such power is in violation of principle of primacy of judiciary in appointment of judges. No individual instance either of working of the Executive or Legislature or the existing system of 100 Special Reference No.1 (1965) 1 SCC 413 at 446 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1031 appointment of judges need be discussed as the issue A involved here is of interpretation of the Constitution and not of success or failure of any individual or persons. As already mentioned, the shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of B the Constitution or the same being damaged.

20. Reference may now be made to the submission of learned counsel for the respondents that in many countries without primacy of judiciary in appointment of judges, c independent judiciary is functioning and thus unfettered judicial primacy was inconsistent with the international trend. Particular mention has been made of 15 countries, namely, Kenya, Pakistan, South Africa, UK, Israel, France, Italy, Nigeria, Sri Lanka, Australia, Canada, New Zealand, Bangladesh, D Germany and United States.

20.1 The submission of learned Attorney General in relation to judicial appointments in the said 15 countries is as follows: E "a. 9 countries conduct appointment of judges through either judicial appointment commissions (Kenya, Pakistan, South Africa and UK}, committees (Israel) or councils (France, Italy, Nigeria and Sir Lanka); 4 countries appoint judges through a direct order of the F Governor General (Australia, Canada, New Zealand) or the President (Bangladesh), where applicable; 1 (Germany) follows a multi-stage process of nomination by the Minister of Justice, confirmation by Parliamentary Committees and final appointment by G the President; and 1 (United States) follows a process of nomination by the President (executive) and confirmation by the Senate (legislature). b. In all 15 countries, the executive is the final or H 1032 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H determinative appointing authority. Out of the 9 countries with commissions, in 2 countries (South Africa and Sri Lanka) the executive has absolute majority in comparison with members of other groups ljudiciary, legislature and independent persons). In 4 countries (France, Israel, Kenya and UK) there is a balanced representation of various stakeholders, including the executive. Out of 3 countries where the number of judges are in a majority (Italy, Nigeria and Pakistan), in 2 countries (Nigeria and Pakistan) the decision of the commission is subject to the vote of a parliamentary committee/Senate, while in 1 (Italy), the President of the Republic is the final appointing authority and the chairman of the judicial appointment body. In 5 of the countries without commissions (Canada, Australia, New Zealand, Bangladesh and United States of America), the decision is taken by the Executive without any formal process of consultation with the judiciary, while in 1 (Germany), the appointment process is conducted by the Parliament, and later confirmed by the President. c. In 8 countries (France, Israel, Italy, Kenya, Nigeria, Pakistan, South Africa and UK) with bodies for judicial appointments, independent members have a mandated role in the selection process through representation on In 4 countries where independent the said bodies. members do not play a formal role in the appointment process (Canada, USA, Australia and New Zealand), the appointing authority (body or person) consults independent members at various stages of the appointment process for their feedback on the selection or recommendation of a prospective candidate. In 3 countries (Bangladesh, Germany and Sri Lanka) no documented process of consultation with independent members is provided for." SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1033 20 .2 Learned counsel for the respondents also referred A to criticism of the collegium system by some jurists including the eminent jurist Shri Nariman, appearing in the present case for the petitioners. 8 h and 121•1 Law Commissions and the C

20.3 On the other hand, Shri Nariman opposed the above submissions and referred to decisions of this Court particularly Kesavananda Bharti case, Indira Gandhi case and Minerva Mills case, where the Constitution amendments were struck down. He also referred to expert studies including reports of the 141 National Commission to Review the Working of the Constitution (NCRWC), headed by Justice M.N. Venkatachaliah (retired CJI), wherein it was observed that independence of judiciary was basic feature of the Constitution and composition of a National Commission was required to be consistent with the D concept of independence of judiciary. Method of appointment of judges could not be altered in such a way as may impinge upon the independence of judiciary. Composition of a Judicial Commission has to uphold the primacy of judiciary. 101

20.4 Shri Nariman also submitted that the impugned E amendment was introduced in response to decisions of this Court affecting certain legislators. He submitted that independent functioning of the judiciary often comes in conflict with the Executive and the Legislature but mandate of the F Constitution of upholding the independence of judiciary was necessary to inspire faith of citizens in impartial justice and to uphold the constitutional values like the Rule of law and the Democracy, by upholding protection of fundamental rights even against the State. He particularly made reference to the history G of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to provide in Article 368 that an Amendment compromising the independence of judiciary could be made by approval by 101 (Paras 9.6 and 9.7 of the Report dated 26.9.2001 as included in Vol. II of the Report of the NCRWC, 2002) H 1034 SUPREME COURT REPORTS [2015] 13 S.C.R. A majority at a referendum. The same was brought about by the Janta Government led by leaders who were arrested during emergency. It was not approved for want of majority in Rajya Sabha. He also referred to decisions of this Court Lily Thomas vs. Union of lndia 102 and Chief Election Commissioner B vs. Jan Chaukidar103 holding that a member of a Legislature will stand qualified onconviction and that a person confined in jail could not contest an election and efforts to undo such decisions. He also referred to the treatise, Constitutional Law of India by Seervai; 4th Edition, to the effect that the C decision of First Judges' case put the judicial independence at the mercy of the Executive 104 •

20.5 He also gave a personal note, in response to reliance on behalf of the respondents on his own biography "Before Memory Fades" as follows:- D "/ have been, and I continue to be, a supporter of the "Judicial-Appointment-Commission-system" and so are my clients whom I represent (this is so stated in the Writ Petition at page 26 to 31, and 44 to 45). BUT I am definitely opposed to a pretence of a Judicial Appointments Commission - which in reality is not ;udicial, onlv partlv or quasi iudicial. The "Judicial Appointments Commission system" (so called) as embodied in the ggrh Constitutional Amendment, 2014 and along with the NJAC Act, 2014, is opposed BECAUSE is not in accordance with and does not conform to the Beiiing Principles on Independence of the Judiciary (by which we in India are governed). The principles were formulated after long deliberation by Heads of the Judiciary in the LA WAS/A region (including India's Chief Justice) - who are all signatories E F G 102 2013 (7) sec 653 103 2013 (7) sec 507 104 Paras 25.350 to 25.354 H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1035 to the Beijing Principle. Principles No. 15 reads as A fol/ows:- "15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives of the higher Judiciary and the independent legal profession as a means of ensuring c that judicial competence, integrity and independence are maintained." 8 Note - NOT OUTSIDERS, not representatives of the EXECUTIVE: because this is not helpful in the interests of maintaining the INDEPENDENCE OF THE D JUDICIARY. Text of Beijing Principles are annexed as Exhibit-II. The then Law Minister had stated in Parliament, when these measures were first introduced, that he had E consulted named persons including mvself - and as to what I said is accurately recorded in the Minutes of the Meeting prepared by the office of the Law Minister. This is what the minutes record: Constitutional Expert and Senior Advocate, F Shri Fali Nariman stated that it is important to remember the independence of the judiciary and the separation of powers. The basic structure doctrine as laid dowr-1 by the Supreme Court in the Keshavananda Bharti case could not be violated and G any proposal for appointment of judges must be in conformity with the basic structure. He felt that the Government should consider following the model of the Appointments Commission as suggested bv the H 1036 SUPREME COURT REPORTS [2015] 13 S.C.R. A B Justice Venkatchaliah Commission that gave dominance to the judiciarv in the appointment process. He stated that composition of the Commission is the basic issue and a Commission with non-Judge domination would not be viable in India ........................ " C

21. As already mentioned, the Constitution of India has its own background and personality 105 . Models of other countries could not be blindly followed so as to damage the identity and personality of the Indian Constitution. The Judicial Commissions referred to by learned Attorney General do not show the trend of reducing the pre-existing role of judiciary. In fact, the trend is for reducing the pre-existing role of the Executive. In the impugned amendment it is the reverse. Thus, o the contention of working of other Constitutions or setting up of judicial Commissions with varying compositions in other countries does not justify the impugned amendment which is contrary to the basic structure of the Indian Constitution.

22. There is also no merit in the contention that in the E present case mere alteration in a constitutional provision does not amount to damage of a basic feature. It is_ not a case of simple amendment to iron out creases. Its impact clearly affects the independence of judiciary. As already mentioned, F appointment of judges has always been considered in the scheme of the working of the Indian Constitution to be integral to the independence of judiciary. It is for this reason that primacy in appointment of judges has always been intended to be of the judiciary. Pre-dominant rol~ of the Executive is not G permissible. Such primacy comprises of initiating the proposal by the judiciary and final word being normally with the CJI (in representative capacity). This scheme is beyond the power of amendment available to the Parliament. H 105 R.C. Poudyal vs. UOI (1994) Supp. 1 SCC 324, para 53 SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1037

22.1 In the new s~heme, the Chief Justices of the High A Courts have not been provided any constitutional say. The Chief Justice of the High Court is in a better position to initially assess the merit of a candidate for appointment as judge of the High Court. The constitutional amendment does not provide for any role to the Chief Minister of the State. This may affect B the quality of the candidate selected and thereby the independence of judiciary. The statutory provision in the NJAC Act will be gone into separately.

22.2 The contention of learned Attorney General that the c amendment was justified to uphold t.he principles of checks and balances and transparency which were equally important constitutional values cannot be accepted. Even assuming that there is a scope for improvement in the working of the collegium system, it can.not be held that under the existing system there D is no transparency or checks and balances. The procedure laid down in memoranda issued by the Central Government has been noted in the earlier part of this opinion. All proceedings in initiating a proposal are in writing and are forwarded to the constitutional functionaries. The Chief E Minister, the Governor, the Law Minister, the PM and the President have opportunity to give their views in the matter of appointment of Chief Justices and Judges of High Courts apart from judges and non-judges involved in the process. The Law Minister, the PM and the President also have opportunity to F give their comment on appointment of CJI and the Judges of the Supreme Court. There is also an opportunity to suggest names before initiation of proposal. There is no bar to an expert feedback from the civil society through the constitutional functionaries involved. Thus, there is transparency as well as G checks C)nd balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution. H 1038 SUPREME COURT REPORTS [2015] 13 S.C.R. A C

22.3 Learned Attorney Generarsought to compare the existing provision for veto by two members of collegium in appointment of Supreme Court Judges as per Third Judges' case to justify veto under Section 6 (6). As already mentioned, the role of the Law Minister and the non-judge members cannot B be placed at par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with a non judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary. Similarly, requirement of special majority in any other ordinary situation was not comparable with the scheme of appointment of judges which is sui generis. Similarly, the plea of giving vital inputs does not justify participation of the non-judge members with the Chief Justice and the Judges in discharging their functions of initiating a proposal or taking a final view. Though, formal act of appointment of judges may pe an executive function, there is a unique judicial element in the process of appointment of judges of constitutional courts. The criticism against perceived short comings in the working of the collegium also does not justify the impugned provisions. As already observed, there may be criticism even against discharging of judicial functions by the aggrieved parties or otherwise. But that does not justify interference with the judicial decisions106 . Needless to say that criticism can be against the working of any system but the systems can be changed only as per the Constitution. Efforts to improve all systems have to be continuously made. E F 0 Conclusion:- G

22.4 I would conclude that the new scheme damages the basic feature of the Constitution under which primacy in 100 P. Sambamurthy vs. State of A.P. (1987) 1 SCC 362 - Paras 3 and 4, striking down Article 3710(5), Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535 - Para 15 - 17, striking down Section 3470 of the Delhi Municipal H Corporation Act, 1957 (66 of 1957) SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1039 appointment of judges has to be with the judiciary. Under the A new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained. F. Validity of the NJAC Act _ 23. In view of my conclusion about the amendment being B beyond the competence of the Parliament, I do not consider it necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the amendment is struck down. However, consistent with my earlier view that primacy of judiciary in appointment of judges cannot be compromised C and on that ground not only Section 2 of the Amendment dispensing with the mandatory consultation with the judiciary as contemplated under the unamended provisions, Section 3 conferring power on the NJAC (under Article 1248) and providing for composition of the Commission under Article D 124A giving a role to the Law Minister and two eminent persons equal to the CJI in recommending appointments as CJI, Judges of Supreme Court, Chief Justices and other Judges of the High Courts and recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article E 124C giving power to the Parliament to regulate the procedure and to lay down the manner of selection was also unconstitutional, the impugned Act has to be struck down. It In Section 5 (2) goes far beyond the procedural aspects. 'suitability criteria' is left to be worked out by regulations. F Second proviso to Section 5 (2) and Section 6 (6) give veto to two members of the Commission which is not contemplated by the Amendment. Section 5 (3) and Section 6 (8) provide for conditions for selection to be laid down by regulations which G are not mere procedural matters. Section 6 authorises the recommendations for appointment as judges 9f the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6 (1) provides for recommendation H 11 1040 SUPREME COURT REPORTS [2015] 13 S.C.R. A B for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges. This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only one High Court may be senior most. Section 6 (2) provides for seeking nomination from Chief Justices of High Courts, but Section 6 (3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court and see!:< comments from Chief Justice after short listing the candidates by itself. Section 8 enables the Central Government to appoint officers C and employees of the Commission and to lay down their conditions of service. The Secretary of the Government is the Convenor of the Commission. Section 13 requires all regulations to be approved by the Parliament. These provisions in the Act impinge upon the independence of judiciary. Even if the dc;ictrine of basic structure is not applied in judging the validity of a parliamentary statute, independence of judiciary and rule of law are parts of Articles 14, 19 and 21 of the Constitution and absence of independence of judiciary E affects the said Fundamental Rights. The NJAC Act is thus D liable to be struck down. G. Effect of Amendment being struck down

24. The contention that even if Amendment is held to be F void, the pre-existing system cannot be restored has no logic. In exercise of power of judicial review, a provision can be declared void in which case the legal position as it stands without such void provision can be held to prevail. It is not a situation when position has not been made clear While deciding G an issue. Power of this Court to declare the effect of its order cannot be doubted nor the decisions relied upon by the respondents show otherwise. I hold that on amendment being struck down, the pre-existing system stands revived. H. Review of Working of the Existing System H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 1041

25. Since the system existing prior to amendment will A stand revived on the amendment being struck down and grievances have been expressed about its functioning, I am of the view that such grievances ought to be considered. It is made clear that grievances have not been expressed by the petitioners about the existence of the pre-existing system of B appointment but about its functioning in practice. It has been argued that this Court can go into this aspect without re-visiting the earlier decisions of the larger Benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing. C Conclusion

26. The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived. The matter be )isted for D consideration of the surviving issue of grievances as to working of pre-existing system. APPENDIX (I) Key Provisions of the Unamended Constitution E "124. Establishment and constitution of Supreme Court - (1) There shall be a Supreme Court of India consisting of a Chief Justice of India. and, until Parliament by law prescribes a larger number, of not F more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of t~e Supreme Court and of the High Courts in the States G as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: H 1042 SUPREME COURT REPORTS [2015] 13 S.C.R. A s c D E. F Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that- (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4). xxxxxxx 217. Appointment and conditions of the office of a Judge of a High Court- Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years: xxxxxx 222. Transfer of a Judge from one High Court to another- The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. xxxxx" (II) The 991 h Amendment Act G ''THE CONSTITUTION (NINETY-NINTH AMENDM~NT) ACT, 2014 An Act further to amend the Constitution of India . [31 51 December, 2014] . H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1043 Be it enacted by Parliament in the Sixty-fifth Year of A the Republic of India as follows:-

1. (1) This Act may be called the Constitution (Ninety- ninth Amendment) Act, 2014. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 8

2. In article 124 of the Constitution, in clause (2),- (a for the words "after consultation with such of the C Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose", the words, figures and letter "on the recommendation of the National Judicial Appointments Commission referred to in article 124A" shall be D substituted; (b) the first proviso shall be omitted; (c) in the second proviso, for the words "Provided further that", the words "Provided that" shall be substituted. E

3. After article 124 of the Constitution, the following articles shall be inserted, namely:- "124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:- F (a) the Chief Justice of India, Chairperson, ex officio; (b two other senior Judges of the Supreme Court next to the Chief Justice of India -Members, ex officio; G (c) the Union Minister in charge of Law and Justice -Member, ex officio; (d) two eminent persons to be nominated by the H 1044 SUPREME COURT REPORTS [2015] 13 S.C.R. A B c D E F G H committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People - Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

1248. It shall be the duty of the National Judicial Appointments Commission to- (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity. 124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other ~ SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1045 Judges of the Supreme Court and Chief Justices and A other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.". B

4. In article 127 of the Constitution, in clause (1 ), for the words "the Chief Justice of India may, with the previous consent of the President", the words "the National Judicial Appointments Commission on a reference c made to it by the Chief Justice of India, may with the previous consent of the President" shall be substituted.

5. In article 128 of the Constitution, for the words "the Chief Justice of India", the words "the National Judicial Appointments Commission" shall be substituted. D

6. In article 217 of the Constitution, in clause (1), for the portion beginning with the words "after consultation", and ending with the words "the High Court", the words, figures and letter "on the recommendation of the E National Judicial Appointments Commission referred to in article 124A" shall be substituted.

7. In article 222 of the Constitution, in clause (1), for the words "after consultation with the Chief Justice of India'; the words, figures and letter "on the recommendation F of the National Judicial Appointments Commission referred to in article 124A '.'shall be substituted.

8. In article 224 of the Constitution,- (a) in clause (1), for the words "the President may G appoint", the words "the President may, in consultation with the National Judicial Appointments Commission, appoint" shall be substituted; H 1046 SUPREME COURT REPORTS [2015] 13 S.C.R. (b) in clause (2), for the words "the President may appoint", the words "the President may, in consultation with the National Judicial Appointments Commission, appoint" shall be substituted.

9. In article 224A of the Constitution, for the words "the Chief Justice of a High Court for any State may at any time, with the previous consent of the President", the words "the National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President" shall be substituted.

10. In article 231 of the Constitution, in clause (2), sub clause (a) shall be omitted." {II) The NJAC Act "THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014 NO. 40 OF 2014 {31 51 December, 2014] An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:-

1. (1) This Act may be called the National Judicial Appointments Commission Act, 2014. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1047

2. In this Act, unless the context otherwise requires,- A (a) "Chairperson" means the Chairperson of the Commission; (b) "Commission" means the National Judicial Appointments Commission referred to in article 124A B of the Constitution; (c) "High Court" means the High Court in respect of which recommendation for appointment of a Judge is proposed to be made by the Commission; ( d) "Member" means a Member of the Commission and includes its. Chairperson; · (e) "prescribed" means prescribed by the rules made under this Act; (f) "regulations" means the regulations made by the Commission under this Act. c D

3. The Headquarters of the Commission shall be at Delhi.

4. (1) The Central Government shall, within a period of thirty days from the date of coming into force of this Act, intimate the vacancies existing in the posts of Judges in the Supreme Court and in a High Court to the Commission for making its recommendations to fill up F such vacancies. E (2) The Central Government shall, six months prior to . the date of occurrence of any vacancy by reason of completion of the term of a Judge of the Supreme Court or of a High Court, make a reference to the Commission G for making its recommenda.tion to fill up such vacancy. (3) The Central Government shall, within a period of thirty days from the date of occurrence of any vacancy H 1048 SUPREME COURT REPORTS (2015] 13 S.C.R. A B c D E F G H by reason of death or resignation of a Judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendations to fill up such vacancy.

5. (1) The Commission shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office: Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting. (2) The Commission shall, on the basis of ability, merit and any other criteria of suitability as-may be specified by regulations, recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed as such under clause (3) of article 124 of the Constitution: 'Provided that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge shall be considered: Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. (3) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Judge of the Supreme Court as it may consider necessary.

6. (1) The Commission shall recommend for appointment a Judge of a High Court to be the Chief Justice of a High Court on the basis of inter se seniority of High Court Judges and ability, merit and any other criteria of suitability as may be specified by regulations. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.) 1049 (2) The Commission shall seek nomination from the A Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court. (3) The Commission shall also on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, nominate name for appointment as a Judge of a High Court from amongst persons who are eligible to be appointed as such under clause (2) of article 217 of the Constitution and forward c such names to the Chief Justice of the concerned High Court for its views. 8 (4) Before making any nomination under sub-section (2) or giving its views under sub-section (3), the Chief Justice of the concerned High Court shall consult two D senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court as may be specified by regulations. ' (5) After receiving views and nomination under sub- E sections (2) and (3), the Commission may recommend for appointment the person who is found suitable on the basis of ability, merit and any other criteria of suitability as may be specified by regulations. (6) The Commission shall not recommend a person F for appointment under this section if any two members of the Commission do not agree for such recommendation. (7) The Commission shall elicit in writing the views of G the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations. (8) The Commission may, by regulations, specify such H .· 1050 SUPREME COURT REPORTS [2015] 13 S.C.R. other procedure and conditions for selection and appointment of a Chief Justice of a High Court and a Judge of a High Court as it may consider necessary.

7. The President shall, on the recommendations made by the Commission, appoint the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or the Judge of a High Court: Provided that the President may, if considers necessary, require the Commission to reconsider, either generally or otherwise, the recommendation made by it: Provided further that if the Commission makes a recommendation after reconsideration in accordance with the provisions contained in sections 5 or 6, the President shall make the appointment accordingly.

8. (1) The Central Government may, in consultation with the Commission, appoint such number of officers and other employees for the discharge of functions of the Commission under this Act. (2) The terms and other conditions of service of officers and other employees of the Commission appointed under sub-section (1) shall be such as may be prescribed. (3) The Convenor of the Commission shall be the Secretary to the Government of India in the Department of Justice.

9. The Commission shallrecommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such A B c D E F G H SUPREME. COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] . transfer. 1051 A

10. (1) The Commission shall have the power to specify, by regulations, the procedure for the discharge of its functions. (2) The Commission shall meet at such time and place B as the Chairperson may direct and observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meeting), as it may specify by regulations.

11. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out thf! provisions of this Act. c (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all D· or any of the following matters, namely:- ( a) the fees and allowances payable to the eminent persons nominated under sub-clause (d) of clause (1) · of article 124A of the Constitution; E (b) the terms and other conditions of service of officers and other employees of the Commission under sub section (2) of section 8; (c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made F by the rules.

12. (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act, and the rules made thereunder, to carry out the G provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- H 1052 SUPREME COURT REPORTS [2015] 13S.C.R. (a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sub-section (2) of section 5; (b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under sub-section (3) of section 5; (c) the ~riteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of section 6; (d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of section 6; (e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6; (f) other procedure and conditions for selection and appointment of a Judge of the High Court under sub section (8) of section 6; (g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court under section 9; (h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of section 10; (i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the quorum at its meeting, under sub-section (2) of section 10; U) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations. A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1053

13. Every rule and regulation made under this Act shall A be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following B the session or the successive sessions aforesc;iid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form C or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. D

14. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, after consultat(on with the Commission, by an order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear E to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of a period of five years from the date of F commencement of this Act. (2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament." (Ill) The Statement of Objects and Reasons of the G Amendment Act "Statement of Objects and Reasons The Judges of the Supreme Court are appointed under H 1054 SUPREME COURT REPORTS [2015] 13 S.C.R. clause (2) of article 124 and the Judges of the High Courts are appointed under clause (1) of article 217 of the Constitution, by the President. The Ad-hoc Judges and retired Judges for the Supreme Court are appointed under clause (1) of article 127 and article 128 of the Constitution respectively. The appointment of Additional Judges and Acting Judges for the High Court is made under article 224 and the appointment of retired Judges for sittings of the High Courts is made under article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.

2. The Supreme Court in the matter of Supreme Court Advocates-on-Record Association Vs. Union of India in the year 1993, and in its Advisory Opinion in the year 1998 in the Third Judges case, had interpreted clause (2) of article· 124 and clause (1) of article 217 of the Constitution with respect to the meaning of "consultation" as "concurrence". Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, · and is being followed for appointment.

3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointmen~s Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts. The said CommissJOn would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make A B c D E F G H SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.] 1055 the participants account?Jble, while also introducing A transparency in the selection process. 8

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, 124B and 124C after article 124 of the Constitution. The said Bill also provides for the composition and the functions of the proposed c National Judicial Appointments Commission. Further, it provides that Parliament may, by law, regulate the procedure for appointment of Judges and empower the National Judicial Appointments Commission to lay down procedure by regulation for the discharge of its D functions, manner of selection of persons for appointment and such other matters as may be considered necessary.

5. The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and E High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and F High Court.

6. The Bill seeks to achieve the above objectives." ORDER OF THE COURT

1. The prayer for reference to a larger Bench, and for G reconsideration of the Second and Third Judges cases [( 1993) 4 sec 441, and (1998) 7 sec 739, respectively], is rejected. 2. The Constitution (Ninety-ninthAmendment)Act, 2014 is declared unconstitutional and void. H 1056 SUPREME COURT REPORTS [2015] 13 S.C.R. A

3. The National Judicia!Appointments Commission Act, 2014, is declared unconstitutional and void. 8

4. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the "collegium system"), is declared to be operative.

5. To consider introduction of appropriate measures, if C any, for an improved working of the "collegium system", list on

3.11.2015. Bibhuti Bhushan Bose Adjudicatiion rendered on merits.