463

TRANSFER PETITION (CIVIL) NO.971 OF 2015

AND
WRIT PETITION (CIVIL) NO.341 OF 2015

JUDGMENT
Chelameswar, J.
1.

We the members of the judiciary exult and frolic in our

emancipation from the other two organs of the State. But have
we

developed

an

alternate

constitutional

morality

to

emancipate us from the theory of checks and balances, robust

enough

to

keep

us

in

control

from

abusing

such

independence? Have we acquired independence greater than

our intelligence maturity and nature could digest? Have we
really

outgrown

the

malady

of

dependence

or

merely

transferred it from the political to judicial hierarchy? Are we

nearing

such

ethical

and

constitutional

disorder

that

frightened civil society runs back to Mother Nature or some

other less wholesome authority to discipline us? Has all the
independence acquired by the judicial branch since 6 th
October, 1993 been a myth a euphemism

for nepotism

enabling inter alia promotion of mediocrity or even less

464

occasionally are questions at the heart of the debate in this

batch of cases by which the petitioners question the validity of
the Constitution (99th Amendment) Act, 2014 and The National
Judicial Appointments Commission Act, 2014 (hereinafter
referred to as the AMENDMENT and the ACT, for the sake of
convenience).
2.

To understand the present controversy, a look at the

relevant provisions of the Constitution of India, as they stood

prior to and after the impugned AMENDMENT, is required.
Prior to the AMENDMENT
Article 124. Establishment and constitution of Supreme Court
(1) There shall be a Supreme Court of India constituting of a Chief Justice
of India and, until Parliament by law prescribes a larger number, of not
more than thirty other Judges.
(2) Every Judge of the Supreme Court shall be appointed 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:
xxxx
xxxxx
xxxxx
xxxxx
Article 217. Appointment and conditions of the office of a Judge of a
High Court
(1) Every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal 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,
..
xxxx
xxxxx
xxxxx
xxxxx

465

3.

The pre AMENDMENT text stipulated that the President of

India shall appoint Judges of this Court and High Courts of

this country (hereinafter the CONSTITUTIONAL COURTS) in
consultation with the Chief Justice of India (hereinafter CJI)
and other constitutional functionaries indicated in Article 124
and 217.

In practice, the appointment process for filling up

vacancies was being initiated by the Chief Justice of the

concerned High Court or the CJI, as the case may be. Such a
procedure

was

stipulated

by

memorandum

of

the

Government of India109.
After the AMENDMENT
4.

Articles 124 and 217 insofar as they are relevant for our

purpose read
Article 124 xxxxx

xxxxx

xxxx

(2)
Every Judge of the Supreme Court shall be appointed
by the President by warrant under his hand and seal on the
recommendation of the National Judicial Appointments
Commission referred to in article 124A and shall hold office until
he attains the age of sixty-five years.
Article 217 . Appointment and conditions of the office of a
Judge of a High Court (1) Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal on
the recommendation of the National Judicial Appointments
Commission referred to in article 124A, and shall hold office, in
109

The details of which are already noted in the judgment of my brother Khehar, J.

466
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.

5.

The AMENDMENT inserted Articles 124A, 124B and 124C.

These provisions read:

124A (1) There shall be a Commission to be known as the
National Judicial Appointments Commission consisting of the
following, namely:the Chief Justice of India, Chairperson, ex officio;
two other senior Judges of the Supreme Court next to the
Chief Justice of India Members, ex officio;
the Union Minister in charge of Law and Justice
Member, ex officio
two eminent persons to be nominated by the committee
consisting of the Prime Minister, the Chief Justice of
India and the Leader of Opposition in the House of the
People or where there is no such Leader of Opposition,
then, the Leader of single largest Opposition Party in the
House of the People 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.
124B. 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

467
(c) ensure that the person recommended is of ability and
integrity.
124C. Parliament may, by law, regulate the procedure for the
appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts
and empower the Commission to lay down by regulations the
procedure for the discharge of its functions, the manner of selection
of persons for appointment and such other matters as may be
considered necessary by it.

Consequent amendments to other Articles are also made,

details are not necessary.
6.

The crux of the AMENDMENT is that the institutional

mechanism by which selection and appointment process of the

Judges of CONSTITUTIONAL COURTS was undertaken came to be
substituted by a new body called the National Judicial
Appointments Commission (hereinafter referred to as NJAC). It
consists of six members. The CJI is its ex-officio Chairperson.
Two senior Judges of the Supreme Court next to the CJI and
the Union Law Minister are also ex-officio members, apart from
two eminent persons to be nominated by a Committee contemplated
in Article 124A (1)(d).
7.

Under Article 124B, the NJAC is charged with the duty of

recommending persons of ability and integrity for appointment as Chief

Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other

468
Judges of High Courts and of recommending transfer of Chief Justices and other
Judges of High Courts from one High Court to any other High Court.

8.

Article 124C authorizes Parliament to regulate by law, the

procedure for the appointment of Chief Justice and other

Judges of the Supreme Court etc.

It also empowers the NJAC

to make regulations laying down the procedure for the

discharge of its functions.
9.

Pursuant to the mandate of Article 124C, Parliament

made the ACT. For the present, suffice it to note that though
the amended text of the Constitution does not so provide,
Section 6(6)110 of the ACT provides that the NJAC shall not
recommend a person for appointment, if any two members of
the Commission do not agree for such recommendation.
10.

The AMENDMENT made far reaching changes in the

scheme of the Constitution, insofar as it relates to the selection

process of Judges of the CONSTITUTIONAL COURTS.

The

President is no more obliged for making appointments to

CONSTITUTIONAL COURTS to consult the CJI, the Chief Justices

110

Section 6 (6). The Commission shall not recommend a person for appointment under this section if
any two members of the Commission do not agree for such recommendation.

469

of High Courts and Governors of the States but is obliged to

consult the NJAC.
11.

The challenge to the AMENDMENT is principally on the

ground that such substitution undermines the independence

of the judiciary. It is contended that independence of judiciary
is a part of the basic structure of the Constitution and the
AMENDMENT is subversive of such independence. Hence, it is

beyond the competence of the Parliament in view of the law

declared by this Court in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225
(hereinafter referred to as Bharati case).
12.

Fortunately there is no difference of opinion between the

parties to this lis regarding the proposition that existence of an

independent judiciary is an essential requisite of a democratic
Republic. Nor is there any difference of opinion regarding the
proposition that an independent judiciary is one of the basic
features of the Constitution of India.
13.

The only issue is what is the permissible procedure or

mechanism

which

would

ensure

establishment

of

an

470

independent judiciary.

The resolution of the issue requires

examination of the following questions;

Whether the mechanism established by the Constituent
Assembly

for

the

appointment

of

Judges

of

the

CONSTITUTIONAL COURTS is the only permissible mode for

securing

an

independent

judiciary

or

can

there

be

alternatives?
If there can be alternatives, whether the mechanism ( NJAC)
sought to be established by the AMENDMENT transgresses
the boundaries of the constituent power?
14.

In the last few weeks, after the conclusion of hearing in

this batch of matters, I heard many a person say that the

whole country is awaiting the judgment. Some even said the
whole world is awaiting.

There is certainly an element of

hyperbole in those statements.

Even those who are really

waiting, I am sure, have concerns which vary from person to

person. Inquisitiveness regarding the jurisprudential and
political correctness, impact on the future of the judiciary,
assessment of political and personal fortunes etc. could be
some of those concerns.

I am only reminded of Justice Fazal

Alis view in S.P. Gupta v. Union of India & Ors. 111 AIR 1982 SC
149 (for short S.P. Gupta case) that the issue is irrelevant for
the masses and litigants.

They only want that their cases should be

decided quickly by judges who generate confidence.

The question is what

is the formula by which judges - who can decide cases quickly

and also generate confidence in the masses and litigants - be
produced. What are the qualities which make a Judge decide
cases quickly and also generate confidence?
15.

Deep learning in law, incisive and alert mind to quickly

grasp the controversy, energy and commitment to resolve the

problem are critical elements which make a Judge efficient and
enable him to decide cases quickly. However, every Judge who
has all the above-mentioned qualities need not automatically
be a Judge who can generate confidence in the litigants unless

111

Para 520. There is another fact of life which, however unpleasant, cannot be denied and this is that
precious little are our masses or litigants concerned with which Judge is appointed or not appointed or
which one is continued or not continued. The high sounding concept of independence of judiciary or
primacy of one or the other of the Constitutional functionaries or the mode of effective consultation are
matters of academic interest in which our masses are least interested. On the other hand, they are mainly
concerned with dangerous forces at work and evils reflected in economic-pressures, inflationary
tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing,
bread and butter, and above all the serious problem of unemployment,
521. It is only a sizeable section of the intellectuals consisting of the press and the lawyers who
have made a prestigious issue of the independence of judiciary. I can fully understand that lawyers or other
persons directly connected with the administration of justice may have a grievance however ill-founded that
proper selection of Judges or interference with the appointment of Judges strictly according to constitutional
provisions may mar the institution of judiciary and therefore they may to some extent be justified in
vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem
to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so
far as administration of justice is concerned they merely want that their cases should be decided quickly
by Judges who generate confidence.

the litigant believes that the Judge is absolutely fair and

impartial.
16.

Belief regarding the impartiality of a Judge depends upon

the fact that Judge shares no relationship with either of the

parties to the litigation. Relationship in the context could be
personal, financial, political or even philosophical etc. When
one of the parties to the litigation is either the State or one of
its instrumentalities, necessarily there is a relationship.
Because, it is the State which establishes the judiciary.
Funds required to run the judicial system including the
salaries and allowances of Judges necessarily flow from the
State exchequer.
17.

Democratic societies believe that the State not only has

authority to govern but also certain legally enforceable

obligations to its subjects.

The authority of judicial fora to

command the State to discharge its obligations flows from the

existence

of

such

enforceable

obligations.

To

generate

confidence that the judicial fora decide controversies brought

to their consideration impartially, they are required to be
independent.

Notwithstanding

the

fact

that

they

are

established and organized by the State as a part of its larger

obligation to govern.
18.

Judiciary is the watchdog of the Constitution and its

fundamental values.

It is also said to be the lifeblood of

constitutionalism in democratic societies.

At least since Marbury v.

Madison112 the authority of courts functioning under a written

democratic constitution takes within its sweep the power to
declare unconstitutional even laws made by the legislature. It
is a formidable authority necessarily implying an awesome
responsibility.

A wise exercise of such power requires an

efficient and independent Judge (Judicial System).

In the

context, wisdom is to perceive with precision whether the

legislative action struck the constitutionally demanded balance
between the larger interests of society and liberties of subjects.
19.

Independence of such fora rests on two integers -

independence of the institution and of individuals who man

the institution.
(Judicial independence) connotes not merely a state of mind or
attitude in the actual exercise of judicial functions, but a status or
relationship to others, particularly to the executive branch of
government, that rests on objective conditions or guarantees.
*

112

5 U.S 137 (1803)

It is generally agreed that judicial independence involves both

individual and institutional relationships: the individual
independence of a judge, as reflected in such matters as security of
tenure, and the institutional independence of the court or tribunal
over which he or she presides, as reflected in its institutional or
administrative relationships to the executive and legislative
branches of Government.113

20.

It is not really necessary for me to trace the entire history

of development of the concept independence of the judiciary in

democratic societies.

It can be said without any fear of

contradiction that all modern democratic societies strive to

establish an independent judiciary. The following are among
the most essential safeguards to ensure the independence of
the judiciary Certainty of tenure, protection from removal
from office except by a stringent process in the cases of Judges
found unfit to continue as members of the judiciary, protection
of salaries and other privileges from interference by the
executive and the legislature, immunity from scrutiny either by
the Executive or the Legislature of the conduct of Judges with
respect to the discharge of judicial functions except in cases of
alleged misbehaviour, immunity from civil and criminal
liability for acts committed in discharge of duties, protection
against criticism to a great degree.

113

Supreme Court of Canada in Valente v. Queen, (1985) 2 SCR 673

Such safeguards are

provided with a fond hope that so protected, a Judge would be

absolutely independent and fearless in discharge of his duties.
21.

Democratic societies by and large recognize the necessity

of the abovementioned protections for the judiciary and its

members.

Such protections are either entrenched in the

Constitution or provided by legislation.

A brief survey of the

constitutions of a few democratic Republics to demonstrate the

point;
22.

Prior to 1701, the British Crown had the power to

dismiss the judges at will.

The Act of Settlement, 1701 114

removed from the Crown the power to dismiss Judges of the

Superior Courts at will.

It enabled the Monarch to remove

Judges from office upon address of both Houses of Parliament.

Interestingly till 1720 Judges ceased to hold office on the
death of the Monarch who issued Commissions.

A 1720

enactment provided that Judges should continue in office for

six months after demise of the monarch.

In 1761 a statute

provided that commissions of the Judges shall remain in full force and effect during
good behaviour notwithstanding the demise of His Majesty or of any of his heirs and

114

judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and
established; but upon the address of both houses of parliament it may be lawful to remove them.
This clause has been repealed by ____

successors

thus granting a life tenure.

According to

Blackstone,
(I) In this distinct and separate existence of the judicial power in a
peculiar body of men, nominated indeed, but not removable at
pleasure by the Crown, consists one main preservative of the public
liberty which cannot subsist long in any State unless the
administration of common justice be in some degree separated
both from the legislative and from the executive power.115

23.

Article III (1)116 of the American Constitution stipulates

that Judges of the Supreme Court and also the inferior Courts
established by Congress shall hold their office during good
behavior and they cannot be removed except through the
process of impeachment117. It also stipulates that they shall
receive a compensation for their services which shall not be
diminished during their continuance in office.
24.

Section 72118 of the Constitution of Australia stipulates

that Judges of the High Court and other Courts created by

115

Sir William Blackstones, Commentaries on the Laws of England, (1765) Vol. I p. 269

116

Article III Section I. The judicial power of the United States, shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished during their continuance in
office.
117
Article II Section 4. The President, Vice President and all civil officers of the United States, shall be
removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors.
118
Section 72. Judges' appointment, tenure, and remuneration:
The Justices of the High Court .
(ii) shall not be removed except on an address from both Houses of the Parliament
in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix; but the remuneration
shall not be diminished during their continuance in office.

Parliament shall be appointed for a term expiring upon the

Judge attaining the age of seventy years and shall not be
removed except on an address from both Houses of the
Parliament in the same session praying for removal of the
Judge on the ground of proved misbehaviour or incapacity. It
also stipulates that remuneration of Judges shall not be
diminished during their continuance in office.
25.

When India became a Sovereign Republic, we did not

adopt the British Constitutional system in its entirety - though

India had been a part of the British Empire

Ever since, the

British Crown started asserting sovereignty over the territory of

India, the British Parliament made Acts which provided legal
framework for the governance of India from time to time known
as Government of India Acts. The last of which was of 1935.
Canada119 and Australia120 which were also part of the British
Empire continue to be governed by Constitutions enacted by
the British Parliament.

We framed a new Constitution

through a Constituent Assembly.

26.

Members of the Constituent Assembly in general and the

Drafting Committee in particular were men and women of

119
120

The British North America Act, 1867 renamed by the Amendment in 1982 as the Constitution Act, 1867
Commonwealth of Australia Constitution Act, 1900.

great political experience, deep insight into human nature, and

a profound comprehension of the complex problems of Indian
Society. They spearheaded the freedom movement. They were
well versed in history, law, political sciences and democratic
practices. They examined the various constitutional systems in
vogue in different democratic societies inter alia American,
Australian, British and Canadian and adopted different
features from different constitutional systems after suitably
modifying them to the needs of Indian society.
27.

Framers of the Constitution had the advantage of an

intimate knowledge of the functioning of the Federal Court, the

High Courts and the Subordinate Courts of this country under
the Government of India Act, 1935121.

Though there several

distinctions in the architecture of the judicial systems under

each of the above-mentioned regimes, one feature common to
all of them is that appointment of Judges is by the Executive.
121

The existing constitution and organization of constitutional courts in this country is discussed in some
detail by Justice Verma in the Second Judges case at paras 444, 445, 446.
444. The Government of India Act, 1919 provided in Section 101 for the Constitution of High
Courts; and the appointment of the Chief Justice and the permanent Judges was in the absolute discretion of
the Crown, subject only the prescribed conditions of eligibility. The tenure of their office, according to
Section 102, was dependent entirely on the Crowns pleasure.
xxxxx
xxxxxx
xxxxxx
xxxxx
445. Then, in the Government of India Act, 1935, provision for the establishment and Constitution
of the Federal Court was made in Section 200, while the Constitution of High Courts was provided for in
Section 220.
xxxxx
xxxxxx
xxxxxx
xxxxx
446. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal
Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive,
with no specific provision for consultation with the Chief Justice in the appointment process.

Such constitutional design is essentially a legacy of the British

constitutional system where the Executive had (till 2006) the
absolute authority to appoint Judges.
28.

Judges, in any country, are expected to maintain a higher

degree of rectitude compared to the other public office holders.

The expectation with respect to the Indian Judiciary is no
different.

The Constitution therefore provides extraordinary

safeguards and privileges for Judges of CONSTITUTIONAL

COURTS to insulate them substantially from the possibility of

interference by the political-executive as well as elected

majorities of the peoples representatives122.
I.

a Judges appointment and continuance in office is not

subject to any election process;

II.

the

termination

of

judicial

appointment

(during

subsistence of the tenure) is made virtually impossible.

The

Constitution

prescribes

that

Judge

of

CONSTITUTIONAL COURT shall not be removed from office

except

by

following

an

elaborate

procedure

of

impeachment prescribed under Article 124(4) 123 which is

122

123

L Chandra Kumar & Ors v. Union of India & Ors., (1997) 3 SCC 261, para 78

Article 124(4) A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two thirds of the members of that House
present and voting has been presented to the President in the same session for such removal on the ground

applicable even for High Court Judges by virtue of Article

217(1)(b)124.
III.

The salaries, privileges, allowances and rights in respect

of leave of absence and pension of Judges of the
CONSTITUTIONAL COURTS may be determined by or under

law made by Parliament. But, they cannot be varied to

the disadvantage of the Judge125 after the appointment.
IV.

The salary, allowances and pension payable to Judges of

CONSTITUTIONAL COURTS are charged on the Consolidated

Fund of India or the Consolidated Fund of the concerned

State126. Further under Articles 113(1)127 and 203(1)128, the
expenditure charged upon the Consolidated Fund of India
or the State as the case may be shall not be submitted to
vote.
of proved misbehaviour or incapacity.
124
Article 217(1)(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;
125
Under the proviso to Article 125(2) and proviso to Article 221(2) respectively.
126
Article 112(3)(d) (3) The following expenditure shall be expenditure charged on the Consolidated
Fund of India
*****
*****
*****
*****
******
(i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court;
Article 202(3)(d) (3) The following expenditure shall be expenditure charged on the
Consolidated Fund of each State
*****
*****
*****
*****
******
(d) expenditure in respect of the salaries and allowances of Judges of any High Court;
127
113(1) - So much of the estimates as relates to expenditure charged upon the Consolidated Fund of
India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as
preventing the discussion in either House of Parliament of any of those estimates.
128

203 (1) - So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a
State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be
construed as preventing the discussion in the Legislature of any of those estimates.

29.

Unscrupulous litigants constantly keep searching for

ways to influence judges.

Attitude of the State or its

instrumentalities (largest litigants in modern democracies)

would be no different129.

Such temptation coupled with the

fact that the State has the legal authority to make laws
including the laws that determine the process of selection of
judges and their service conditions can pose the greatest
threat to the independence of the judiciary if such law making
authority is without any limitations. Therefore, extraordinary
safeguards to protect the tenure and service conditions of the
members of the judiciary are provided in the Constitution; with
a fond hope that men and women, who hold judicial offices so
protected will be able to discharge their functions with
absolute independence and efficiency.
30.

However, any amount of legal and institutional protection

will not supply the necessary independence and efficiency to

individuals if inherently they are lacking in them. Where every
129

Fali S. Nariman, Before Memory Fades: An Autobiography, [First Edition Hay House (2010 ),
p.348 ]
I once knew a fine, independent judge in South Africa during the days of apartheid JudgePresident John Milne of the Natal Supreme Court. We used to correspond, and Milne said something
similar. Milne wrote to me on one occasion (in despair) :
It seems that however much they may pay lip service to the idea that the Judiciary
is totally independent of the Executive, politicians throughout the ages and throughout the
world would actually much prefer to have executive minded lackeys and are considerably
irritated by independent Judges functioning in an independent manner.

aspect of judges service is protected by the Constitution, the

only way governments can think of gaining some control over
the judiciary is by making an effort to appoint persons who are
inherently pliable.

There are various factors which make a

Judge pliable. Some of the factors are - individual ambition,

loyalty-based on political, religious or sectarian considerations,
incompetence and lack of integrity.

Any one of the

above-mentioned factors is sufficient to make a Judge pliable.

A combination of more than one of them makes a Judge more
vulnerable. Combination of incompetence and ambition is the
worst.

The only way an ambitious incompetent person can

ascend a high public office is by cringing before men in power.

It is said that men in power promote the least of mankind with
a fond hope that those who lack any accomplishment would be
grateful to their benefactor.

History is replete with examples -

though proof of the expected loyalty is very scarce.

Usually

such men are only loyal to power but not to the benefactor.
31.

In order to ensure that at least in the matter of

appointment

of

Judges,

democracies

all

over

the

such

aberrations

world

have

are

avoided,

adopted

different

strategies for choosing the right people as Judges.

The

procedures adopted for making such a choice are widely

different.

To demonstrate the same, it is useful to examine

the judicial systems of some of the English speaking countries.

32.

The Constitution of the United States of America

empowers the President to appoint Judges of the Supreme

Court130 with the advice and consent of the Senate131.

Insofar as the

appointment of the Judges of the highest court in United

States is concerned, neither the Chief Justice of America nor
the Supreme Court is assigned any role.

The Head of the

Executive is conferred with exclusive power to make the choice

of the Judges of the highest court subject to the advice and consent
of the Senate. A check on the possibility of arbitrary exercise
of the power by the President.
33.

The Canadian legal system depicts another interesting

model.

The Supreme Court of Canada is not established by

the Constitution i.e. the Constitution Act of 1867. Chapter VII

of the Act deals with the judicature.
130

Section 101 132 only

Article II Section 2
The President shall have power to .. nominate and by and with the advise and consent of the
Senate .. appoint .. Judges of the Supreme Court ..
In the case of the appointment of Judges of the other Statutory Federal Courts, the Congress
can by law entrust the power to the Supreme Court itself.
131
The Federal Legislature of America is called the Congress of the United States consisting of two
chambers Senate and House of Representatives.
132
Section 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time
provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and
for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

authorises the Parliament of Canada to provide for the

constitution, maintenance and organisation of a general court of appeal of Canada and

for the establishment of any additional courts for the better

administration of the laws of Canada.

It is in exercise of such

power, the Parliament of Canada in 1875 by a statute, (the

Supreme and Exchequer Courts Act, 1875 133) established the
Supreme Court of Canada. The Supreme Court of Canadas
existence, its composition and jurisdiction depend upon an
ordinary federal statute and these underwent many changes
over time.

In theory, the Court could be abolished by

unilateral action of the Federal Parliament.

Judges of the

Supreme Court are appointed by the Governor in Council (the

federal cabinet) in exercise of the power conferred under
Section 2 of the Supreme Court Act (supra). There is no
requirement in Canada that such appointments be ratified by
the Senate or the House of Commons.
34.

In Australia, the highest Federal Court is called the High

Court of Australia established under Section 71 134 of the

133

Now replaced by Supreme Court Act, 1985.

134

Section 71. Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to
be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such
other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so
many other Justices, not less than two, as the Parliament prescribes.

Australian Constitution.

It consists of a Chief Justice and

other Judges not less than two as the Parliament prescribes.

Judges of the High Court are appointed by the Governor
General in Council.
35.

Neither Canada nor Australia provide the Chief Justice

or Judges of the highest court any role in the choice of Judges

of the Constitutional Courts. In Australia, unlike the American
model, there is no provision in the Constitution requiring
consent of the federal legislature for such appointments.
36.

England is unique in these matters.

understood

in

India,

It has no written

constitution

as

US,

Canada

and

Australia.

Till 2006, appointments of Judges were made

exclusively by the Lord Chancellor of the Exchequer who is a

member of the Cabinet.
37.

The makers of the Indian Constitution after a study of the

various models mentioned above among others, provided that

in making appointment of the Judges of the CONSTITUTIONAL
COURTS, the CJI and the Chief Justices of the concerned High

Court are required to be consulted by the President who is the

appointing authority of Judges of these Courts.

The text of

the Constitution clearly excluded any role either for the

Parliament or for the State Legislatures.
38.

Dr. Ambedkar explained the scheme of the Constitution

insofar as it pertains to appointment of Judges of the

CONSTITUTIONAL COURTS and the competing concerns which

weighed with the drafting committee for adopting such model:

There can be no difference of opinion in the House that our
judiciary must both be independent of the executive and
must also be competent in itself. And the question is how
these two objects could be secured. There are two different
ways in which this matter is governed in other countries. In Great
Britain the appointments are made by the Crown, without any
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 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 the
sense of responsibility has not grown to the same extent to
which we find it in the United States, it would be
dangerous to leave the appointments to be made by the
President, without any kind of reservation or limitation,
that is to say, merely on the advice of the executive of the
day. Similarly, it seems to me that to make every
appointment which the executive wishes to make subject to
the concurrence of the Legislature is also not a very
suitable provision. Apart from its being cumbrous, it also
involves 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 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 that
is also a dangerous proposition135.

(emphasis supplied)
The following are salient features of Dr. Ambedkars statement:
1.

That the judiciary must be both independent

and competent.

2.

It is dangerous to confer an unchecked power

of choosing or appointing Judges on the
executive.

The concurrence of the legislature

is also not desirable as it leads to a possibility

of appointments being influenced by political
considerations or under political pressure.
3.

(a)

Requiring

concurrence

of

the

Chief

Justice is also a dangerous proposition.

(b)

That, the Chief Justice is also a human

being and is a man with all the failings,

sentiments and prejudices which common
people are supposed to have136.
135
136

Constituent Assembly Debates, 24th May 1949 (Vol. VIII)

Recall the words of Jackson, J. in Sacher v. United States 343 US 1 (1952) Men who make their way to
the Bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which
human flesh is heir.

(c)

Providing for the concurrence of CJI

would be conferring a power of veto on the CJI

which in substance means transferring the
power of appointment to the CJI without any
limitation, which the Constituent Assembly
thought

it

imprudent

to

confer

on

the

President.
4.

That, the Drafting Committee thought the

arrangements, specified under Articles 124 and
217 (as they stood prior to the AMENDMENT),
would

ensure

competence

requisite

of

the

arrangements would

independence

judiciary

and

and
such

be sufficient for the

moment.
39.

Till 1977, the true meaning and amplitude of the

expression consultation occurring in Articles 124 and 217 of the

Constitution of India troubled neither the executive nor the
judiciary. There had always been a consultation between the
constitutional functionaries. Appointments were made without
much

controversy.

This

Court

in

Supreme

Court

Advocates-on-Record Association v. Union of India, (1993) 4

SCC 441 (hereinafter referred to as the Second Judges case)

recorded so137.
40.

Article 222138 authorises the President to transfer High

Court Judges in consultation with the CJI.

Till 1975, that

power was very rarely exercised by the President. In 1976 139,

the power under Article 222 was invoked to make a mass transfer of
16 High Court Judges140.

One of the 16 Judges, though complied

with the order of transfer but challenged the transfer by filing

a petition pro bono publico to assert and vindicate the independence of the Judiciary141.
It was in the context of that case, for the first time, the true
137

Para 371

(iii) All the appointments to the Supreme Court from 1950 to 1959 were made
with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to
the High Courts during that period were also with the concurrence of the Chief Justice of
India.
(iv)
Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor
of the Parliament on November 24, 1959 that appointment of Judges were virtually being
made by the Chief Justice of India and the Executive was only an order - issuing
authority.
(v)
Mr. Ashok Sen, the Law Minister reiterated in the Parliament on
November 25,1959 that almost all the appointments made to the Supreme Court and the
High Courts were made with the concurrence of the Chief Justice of India.
(vi)
Out of 547 appointments of Judges made during the period January 1,
1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the
Chief Justice of India.

138

Article 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
139

During the subsistence of a (partially controversial) declaration of emergency.

Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 (Bhagwati, J. para 46)
141
Para 47 of Sankalchand case, Bhagwati, J.
140

meaning of the expression consultation occurring under Article

222(1) fell for the consideration of this Court.

The matter,

Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4

SCC 193 (for short Sankalchand case) was heard by five
Judges.

Four

separate

judgments

were

delivered

by

Chandrachud, Bhagwati, Krishna Iyer, and Untwalia, JJ.

Justice Chandrachud opined that consultation in the context
means an effective consultation and sharing of complete data
on the basis of which transfer is sought to be effected but
concluded that After an effective consultation with the Chief Justice of India, it
is open to the President to arrive at a proper decision of the question whether a Judge
should be transferred to another High Court because, what the Constitution requires is
consultation with the Chief Justice, not his concurrence with the proposed transfer 142.

After recording such a conclusion, His Lordship went on to

observe as follows:
41. .. But it is necessary to reiterate what Bhagwati and
Krishna Iyer JJ. said in Shamsher Singh (supra) that in all
conceivable cases, consultation with the Chief Justice of India
should be accepted by the Government of India and that the Court
will have an opportunity to examine if any other extraneous
circumstances have entered into the verdict of the executive if it
departs from the counsel given by the Chief Justice of India. "In
practice the last word in such a sensitive subject must belong to the
Chief Justice of India, the rejection of his advice being ordinarily
regarded as prompted by oblique considerations vitiating the
order." (page 873). It is hoped that these words will not fall on deaf
ears and since normalcy has now been restored, the differences, if
any, between the executive and the judiciary will be resolved by
mutual deliberation each, party treating the views of the other with
respect and consideration.
142

Para 41 of Sankalchand case Chandrachud, J.

41.

Justice Bhagwati, was entirely in agreement with what has been said by

Krishna Iyer in his judgment.143

42.

Justice Krishna Iyer spoke for himself and for Justice

Fazal Ali.

Justice Krishna Iyer, while reiterating the views

expressed by this Court in two earlier judgments, i.e.

Chandramouleshwar Prasad v. Patna High Court and Ors. ,
(1969) 3 SCC 56 and Samsher Singh v. State of Punjab, AIR
1974 SC 2192, opined that although the opinion of the Chief Justice of India
may not be binding on the Government it is entitled to great weight and is normally to be
accepted by the Government .144 with a caveat:
115. . 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 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.

Justice Untwalia agreed with the views expressed by Justice

Chandrachud on the question of consultation with the Chief
Justice of India and added:
125. The Government, however, as rightly conceded by
Mr. Seervai, is not bound to accept and act upon the advice of the
Chief Justice. It may differ from him and for cogent reasons may
143
144

Para 62 of Sankalchand case Bhagwati, J.

Para 115 of Sankalchand case Krishna Iyer, J.

take a contrary view. In other words, as held by this Court in the

case of Chandramouleshwar Prasad v. Patna High Court and Ors.
[1970]2SCR666 , the advice is not binding on the Government
invariably and as a matter of compulsion in law. Although the
decision of this Court in Chandramouleshwar Prasad's case was
with reference to the interpretation of Articles 233 and 235 of the
Constitution, on principle there is hardly any difference.

43.

One interesting factor that is required to be noted from

the abovementioned case is that all the 16 transfers were made

in consultation with the then CJI. Within a year thereafter, in
March 1977, general elections took place and a new political
party came to power. The Government on a re-examination of
the

matter

opined

that

there

was

no

transferring Justice Sheth from Gujarat.

justification

for

It is a matter of

history that all 16 Judges who were transferred during

emergency, were sent back to their parent High Courts along
with Justice Sheth145. This fact is significant in the context of
the argument that permitting the executive to have any say in
the matter of appointment of Judges to Constitutional Courts
would be destructive of independence of the judiciary.
44.

Within three years thereafter, another significant event in

the constitutional history of this country occurred. The then

Law Minister of the Government of India sent a circular dated
145

Per Fazal Ali, J. S.P. Gupta case, p.403 - It is true that there were, quite a few transfers during the
emergency which were not in consonance with the spirit of Article 222 and that is why the Government had
conceded this fact and took steps to revoke the transfers by retransferring, almost all the Judges to the High
Courts from where they had been transferred.

18th March 1981 to Chief Ministers of various States.

Chief

Ministers were requested to obtain from all the Additional

Judges (working in the concerned High Courts) consent to be
appointed as permanent Judges in any other High Court in the
country.

It also advised Chief Ministers to obtain similar

consent letters from persons who have already been or may in

future be proposed for initial appointment as Judges of the
High Court. The said letter was challenged in S.P. Gupta case
on the ground it was a direct attack on the independence of the judiciary which
is a basic feature of the Constitution146 (Para 2). The matter was heard by

seven Judges of this Court. Seven separate judgments were

delivered. One of the questions before this Court was whether
the opinion of CJI be given primacy over the opinion of other
constitutional functionaries. Substantially, this Court took the
same view as was taken in Sankalchand case147.

45.

Growth of population, increasing awareness of legal

rights in the population, expansion of the scope of judicial

review as a consequence of a change in the understanding of
the amplitude of various fundamental rights and their
inter-relationship, a sea change in the law on the procedural
146

147

Para 2 of S.P. Gupta case - Bhagwati, J.

See paras 30 & 31 Bhagwati, J.; Para 134 Gupta, J., Para 632 Tulzapurkar, J.; Para 726 Desai, J.
Paras 890 & 891 Pathak, J.; Paras 1031 & 1032 E S Venkataramaiah,J

limitations in the exercise of the jurisdiction under Article 32

and 226 led to the explosion of dockets of the CONSTITUTIONAL
COURTS of this country.

relatively stagnant.
and complex.

But, the Judge strength remained

By 80s, the problem became more acute

Government of India did not undertake the

requisite exercise to make a periodic assessment of the need to

increase the judge strength. In the case of some High Courts,
there was even a reduction148. Even, the appointment process
of High Court Judges was taking unreasonably long periods on
legally untenable grounds149.

A three Judge Bench of this

Court in Subhash Sharma v. Union of India (1991) Supp.1 SCC

574 (for short Subhash Sharma case) took note of such a
situation.
46.

There was a turmoil with regard to appointment of

Judges of CONSTITUTIONAL COURTS in 1970s and 1980s. Senior

Judges were superceded for appointment to the office of CJI.
Perhaps,

emboldened

by

judgments

of

this

Court

in

148

Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page 586 :
Para 18. We gather that the Kerala High Court where the sanctioned strength has been reduced
by 2, has a sanctioned strength of 22 while its pendency as on January 1, 1990 being 34,330 cases justifies a
Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year. We intend to
indicate that there was no justification for reduction of the sanctioned strength.
149

Para 19. For the present we suggest to government that the matter should be reviewed from time to
time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of
the existing need. If there be no correlation between the need and the sanctioned strength and the provision
of Judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish
enforcement of the Rule of Law.

Sankalchand and S.P. Gupta the executive (at the National as

well as the State level) resorted to unhealthy manipulation of
the system.

The Informal Constitution : Unwritten Criteria in

Selecting Judges for the Supreme Court of India 150 records some

instances of such manipulations based on news items

published in print media of some reputation by Commentators
of well established credentials on Contemporary issues and
scholars. It appears that out of 53 appointments of Judges to
some High Courts made in 1984-85, 32 were made on the
recommendations of acting Chief Justices. It is believed that
the senior most Judges of some High Courts (from where the
said 32 recommendations had originated) who initiated those
recommendations

as

acting

Chief

Justices,

were

made

permanent Chief Justices only after they agreed to recommend

names suggested by the Executive.

A particular Additional

Judge was not confirmed as a permanent Judge for several

years

notwithstanding

the

recommendations

for

his

confirmation by three successive Chief Justices of the High

Court and three CJIs allegedly on the ground that the Judge
had

delivered

judgment

not

palatable

to

the

State

Government. It appears that the Government headed by Prime

150

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

Minister V.P. Singh had stalled appointments of 67 persons

recommended by the Chief Justices of various High Courts.
Charges were freely traded against each other by the
constitutional functionaries who are part of the appointment
process of the CONSTITUTIONAL COURTS. It appears that a Law
Minister for the Union of India complained that State
Governments were trying to pack High Courts with their own
men151. The basic facts are verifiable, inferences therefrom are
perhaps contestable.

Unfortunately, the correspondence

between the Government and the CJI and the record of the
consultation process are some of the best guarded secrets of
this country.
47.

The question is not whether the various statements made

in the above-mentioned book are absolutely accurate.

The

observations made by this Court in Subhash Sharma case can

lead to a safe conclusion, that there must be some truth in the
various statements made in the book. The above scenario
whether true or partially true formed the backdrop of the
observations made in Subhash Sharma case (supra).

151

As a

From 1978, Governments at the State level and the Union level ceased to be necessarily of the same
political party. Regional parties in parts of the country had captured power putting an end to one party rule
at both the levels.

consequence, the Bench thought it fit that the correctness of

S.P. Gupta case should be considered by a larger Bench.
49. .. majority view in S.P. Guptas case 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
constituting a Bench of nine Judges to examine the two questions
we have referred to above, namely, the position of the Chief Justice
of India with reference to primacy and, secondly, justiciability of
fixation of Judge strength.

48.

This led to the Second Judges case.

heard by nine Judges.

delivered.

The matter was

Five separate judgments were

Justice Verma spoke for five of them.

Justice

Pandian and Justice Kuldip Singh wrote separate judgments

but agreed with the conclusions of Justice Verma, but Justice
Ahmadi and Justice Punchhi did not.

One proposition on

which all nine Judges were unanimous is that under the

scheme of the Constitution, independence of judiciary is
indispensable. Justice Verma categorically held that it is a part
of the basic structure of the Constitution 152.

The point of

disagreement between the majority and minority is only

152

Para 421 - These questions have to be considered in the context of the independence of the judiciary, as
a part of the basic structure of the Constitution, to secure the rule of law, essential for the preservation of
the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with
the directive principle of separation of judiciary from executive even at the lowest strata, provides some
insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the
judiciary. The construction of these provisions must accord with these fundamental concepts in the
constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution
as a vibrant organism.

regarding

the

mode

by

which

the

establishment

and

continuance of such an independent judiciary can be achieved.

49.

Textually, provisions which indicate that the judiciary is

required to be independent of the executive are Article 50 153

and the form of oath required to be taken by the Judges of
CONSTITUTIONAL COURTS prescribed in Forms IV154 and VIII155

under the Third Schedule to the Constitution of India.

50.

However, structurally there are many indications in the

scheme of the Constitution which lead to an unquestionable

inference that the Framers of the Constitution desired to have
a judiciary which is absolutely independent of the Executive
and

insulated

from

vagaries

of

transient

and

shifting

majoritarian dynamics. Under the scheme of the Constitution,

State

Legislatures

have

absolutely

no

role

in

matters

pertaining to the establishment of CONSTITUTIONAL COURTS of

153

Article 50. Separation of judiciary from executive The State shall take steps to separate the
judiciary from the executive in the public services of the State.
154

Form of oath or affirmation to be made by the Judges of the Supreme Court and the
Comptroller and Auditor-General of India:
I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or
Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and
solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge
and judgment perform the duties of my office without fear or favour, affection or illwill and that I will
uphold the Constitution and the laws.
155

Form of oath or affirmation to be made by the Judges of a High Court:

I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) -..
do swear in the name of God that I will bear solemnly affirm true faith and allegiance to the Constitution of
India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and
faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without
fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.

this country.

Parliament alone is authorized to deal with

certain aspects of the establishment of the CONSTITUTIONAL

COURTS and their administration such as fixation of the

strength of the courts, salaries and other service conditions of

the judges etc.

Termination of an appointment made to a

CONSTITUTIONAL COURT can be done only through the process

of impeachment by Parliament, the only legislative body

authorised to impeach by following a distinct legislative
process only on the ground of proved misbehaviour or incapacity . Such
a process is made more stringent by a constitutional
stipulation under Article 124(5)156 that the procedure for
investigation and proof of misbehaviour or incapacity of a
Judge must be regulated by law. Even after misbehaviour or
incapacity is established removal of a Judge is not automatic
but subject to voting and approval by a special majority of the
Parliament specified under Article 124(4) 157.

Prior to the

AMENDMENT, the power to appoint Judges of CONSTITUTIONAL

COURTS vested in the President to be exercised in consultation

with the various constitutional functionaries mentioned under

156

Article 124(5). Parliament may by law regulate the procedure for the presentation of an address and for
the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
157

Article 124(4). A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two thirds of the members of that House
present and voting has been presented to the President in the same session for such removal on the ground
of proved misbehaviour or incapacity.

Articles 124 and 217, as the case may be. Consultation with
the CJI was mandatory for the appointment of Judges of all
CONSTITUTIONAL COURTS. Consultation with the Chief Justices

of High Courts was mandatory for appointment of Judges of

High Courts.
51.

In the backdrop of such scheme, a question arose

whether the appointment process, in any way, impacts

independence of the judiciary, which, admittedly, formed a
part of the basic structure of the Constitution. Majority of the
Judges opined that it does 158. Their Lordships drew support for
158

(per Hon. Pandian, J.) - Para 49. one other basic and inseparable vital condition is absolutely
necessary for timely securing the independence of judiciary; and that concerns the methodology followed in
the matter of sponsoring, selecting and appointing a proper and fit candidate to the (Supreme Court or High
Court) higher judiciary. The holistic condition is a major component that goes along with other
constitutionally guaranteed service conditions in securing a complete independence of judiciary. To say
differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of
the increasingly important condition in regard to the method of appointment of judges and, secondly,
protected by the fulfilment of the rights, privileges and other service conditions. The resultant inescapable
conclusion is that only the consummation or totality of all the requisite conditions beginning with the
method and strategy of selection and appointment of judges will secure and protect the independence of the
judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire
judicial system will explode which in turn may cripple the proper functioning of democracy and the
philosophy of this cherished concept will be only a myth rather than a reality.
(per Hon. Kuldip Singh, J.) Para 335. Then the question which comes up for consideration is,
can there be an independent judiciary when the power of appointment of judges vests in the
executive? To say yes, would be illogical. The independence of judiciary is inextricably linked and
connected with the constitutional process of appointment of judges of the higher judiciary. Independence of
Judiciary is the basic feature of our Constitution and if it means what we have discussed above, then the
Framers of the Constitution could have never intended to give this power to the executive. Even otherwise
the Governments Central or the State are parties before the Courts in large number of cases. The
Union Executive have vital interests in various important matters which come for adjudication before the
Apex Court. The executive in one form or the other is the largest single litigant before the courts. In
this view of the matter the judiciary being the mediator between the people and the executive the
Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme
Court and of the High Courts in the hands of the executive.
(per Hon. Verma, J.) Para 447. When the Constitution was being drafted, there was
general agreement that the appointments of Judges in the superior judiciary should not be left to the
absolute discretion of the executive, and this was the reason for the provision made in the Constitution
imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This
was done to achieve independence of the Judges of the superior judiciary even at the time of their
appointment, instead of confining it only to the provision of security of tenure and other conditions of

such conclusion from history and debates in the Constituent

Assembly apart from the observations made in the cases of
Sankalchand and S.P. Gupta. Their Lordships also took note of
the fact that the Constituent Assembly consciously excluded
any role to the Parliament in the process of appointments, a
conscious departure from the American Constitutional model
where Federal Judicial appointments are subject to consent of
the Senate.
52.

In the background of such an analysis, consultation with the

Chief Justice of India in Articles 124 and 217 was interpreted as

conferring primacy to the opinion of CJI.

Consultation with

the CJI was part of a design of the Constituent Assembly to

deny unfettered authority (to the union executive) to appoint
Judges of the CONSTITUTIONAL COURTS.

The Constituent

Assembly did not choose to vest such controlling power in the

Parliament to which the Executive is otherwise accountable
service after the appointment was made. It was realised that the independence of the judiciary had to be
safeguarded not merely by providing security of tenure and other conditions of service after the
appointment, but also by preventing the influence of political considerations in making the
appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason
which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the
Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose
this purpose in prescribing for such consultation, even though the appointment is ultimately an executive
act.

under the scheme of the Constitution.

This Court, therefore,

concluded that without primacy to the opinion of CJI the

whole consultation process contemplated under Articles 124
and 217 would only become ornamental enabling the executive
to make appointments in its absolute discretion, most likely
based on considerations of political expediency.

Such a

process would be antithetical to the constitutional goal of

establishing an independent judiciary.

However, Justice

Verma categorically declared

438. The debate on primacy is intended to determine, who
amongst the constitutional functionaries involved in the integrated
process of appointments is best equipped to discharge the greater
burden attached to the role of primacy, of making the proper
choice; and this debate is not to determine who between them is
entitled to greater importance or is to take the winner's prize at
the end of the debate. The task before us has to be performed with
this perception.
450. . The indication is, that in the choice of a
candidate suitable for appointment, the opinion of the Chief
Justice of India should have the greatest weight; the selection
should be made as a result of a participatory consultative process
in which the executive should have power to act as a mere check
on the exercise of power by the Chief Justice of India, to
achieve the constitutional purpose. Thus, the executive element
in the appointment process is reduced to the minimum and any
political influence is eliminated. It was for this reason that the
word 'consultation' instead of 'concurrence' was used, but that was
done merely to indicate that absolute discretion was not given to
any one, not even to the Chief Justice of India as individual,
much less to the executive, which earlier had absolute discretion
under the Government of India Acts.

[emphasis supplied]
53.

This Court also indicated the circumstances on which the

President of India would be constitutionally justified in not

acting in accordance with the opinion expressed by the CJI.

This Court never held that consultation means concurrence as is
sought to be interpreted in some quarters and I regret to say
even in the stated objects and reasons for the AMENDMENT.
As regards the appointment of Judges of the Supreme Court and
High Courts, the Supreme Court, in the matters of the Supreme
Court Advocates-on-Record Association v. Union of India and its
Advisory Opinion 1998 in Third Judges case, had interpreted
articles 124(2) and 217(1) of the Constitution with respect to the
meaning of consultation as concurrence. It was also held
that the consultation of the Chief Justice of India means collegium
consisting of the Chief Justice and two or four Judges, as the case
may be. This has resulted in a Memorandum of Procedure laying
down the process which is being presently followed for
appointment of Judges to both the High Courts and the Supreme
Court. The Memorandum of Procedure confers upon the Judiciary
itself the power for appointment of Judges.

[emphasis supplied]

54.

There

are

conflicting

opinions 159

regarding

the

jurisprudential soundness of the judgment of Second Judges

case. I do not think it necessary to examine that aspect of the
matter for the purpose of determining the present controversy.
55.

After some 20 years of the working of the regime created

under the Second Judges case, serious questions arose

whether the regime emanating as a consequence of the
interpretation placed by this Court in the Second Judges case,
yielded any constitutionally aspired result of the establishment
of

an

independent

and

efficient

judiciary

the

CONSTITUTINONAL COURTS . Answer regarding the independence

159

See the articles of Lord Templemans favourable opinion and the critical view of Lord Cooke of
Thorndon published in the book titled Supreme but not Infallible Oxford University Press
2000 A.D.
Article 124 of the Constitution empowers the President (acting on the advice of the
Prime Minister and Cabinet) to appoint the judges of the Supreme Court. The President is given a
discretion about consulting judges of the Supreme Court and High Courts but in the case of
appointments of a Judge other than the Chief Justice, the Chief Justice of India shall always be
consulted. Similarly, Article 217 requires the Chief Justice of India to be consulted concerning the
appointment of a judge of the High Court of a state. In 1993, in the Supreme Court Advocates on
Record Association case the Supreme Court by a majority held that, having regard to the
independence of the judiciary and the separation of powers which the Court held to be implicit in
the Constitution, the views of the Chief Justice of India expressed when he was consulted must be
supreme. The Court also laid down guidelines governing the appointment and duration of office of
temporary acting judges. The majority decision has been criticized as an extension of the meaning
of the word consultation. However, having regard to the earlier experience in 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 results of the appointment of Supreme Court judges of the United States by the
President subject to approval by Congress, the majority decision of te Supreme Court of India in the
Advocates on Record case marks a welcome assertion of the independence of the judiciary and is
the best method of obtaining appointments of integrity and quality, a precedent method which the
British could follow such advantage.
---Lord
Templeman
All in all, the opinion of the Supreme Court in the third Judges case must be one of the
most remarkable rulings ever issued by a supreme national appellate court in the coomon law world.
Since, in some respects, I have had to voice respectful doubts about the soundness of the
constitutional foundations of that opinion.
---- Lord Cooke of Thorndon

can be subjective, and efficiency perhaps may not be very

pleasant.
56.

Within a few years doubts arose regarding the true

purport of the Second Judges case. The President of India

invoked Article 143 and sought certain clarifications on the
judgment of the Second Judges case leading to the opinion of
this Court reported in Special Reference No.1 of 1998, (1998) 7
SCC 739 (hereinafter referred to as Third Judges case).
Unfortunately, the factual matrix on which doubts were
entertained by the Government of India are not recorded in the
opinion. But para 41 of the Third Judges case records:
41. We take the optimistic view that successive Chief
Justices of India shall henceforth act in accordance with the Second
Judges case and this opinion.

57.

No wonder, gossip and speculations gather momentum

and currency in such state of affairs. If a nine-Judge Bench of

this Court takes an optimistic view that successive Chief Justices of India shall
henceforth act in accordance with the Second Judges case, the only logical

inference that can be drawn is that the law laid down by the
Second Judges case was not faithfully followed by the
successive Chief Justices, if not in all at least in some cases

attracting

comments.

Instead

of

Ministers,

Judges

patronised.160
58.

In the next one and a half decade, this nation has

witnessed many unpleasant events connected with judicial

appointments - events which lend credence to the speculation
that the system established by the Second and Third Judges
cases in its operational reality is perhaps not the best system
for securing an independent and efficient judiciary. 161
59.

Two events are part of the record of this Court and can be

quoted without attracting the accusation of being irresponsible

and unconcerned about the sanctity of the institution. These
events led to the decisions reported in Shanti Bhushan &
Another v. Union of India & Another, (2009) 1 SCC 657, P.D.
Dinakaran (1) v. Judges Inquiry Committee & Others, (2011) 8
SCC 380, P.D. Dinakaran (2) v. Judges Inquiry Committee &
Another, (2011) 8 SCC 474.
160

Iyer, V.R. Krishna, Judiciary : A reform agenda II, The Hindu (online edition)
15.08.2002
161

An Independent Judiciary speech delivered by Ms. Justice Ruma Pal at the 5 th V.M. Tarkunde
Memorial Lecture on 10th November 2011.
As I have said elsewhere the process by which a judge is appointed to a superior court is one of
the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of
information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance
remark, a rumour or even third-hand information may be sufficient to damn a judges prospects.
Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus
within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with
disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional
independence has also been compromised by growing sycophancy and lobbying within the system.

While the 1st of the said two events pertains to the

appointment of a Judge of the Madras High Court, the 2 nd
pertains to the recommendation made by the CJI (Collegium)
regarding elevation of the Chief Justice of a High Court to this
Court.
60.

The

dispute

in

Shanti Bhushan

case

(supra)

was

regarding appointment of a permanent Judge to the Madras

High Court. The allegation appears to be that the procedure
indicated in the Second and Third Judges cases had not been
followed. I use the expression appears to be because it is difficult
to identify what was the exact pleading in the case 162. It is only
by inference such a conclusion can be reached.

Even the

conclusion recorded by this Court does not really throw any

light. In para 22 of the judgment of this Court it is recorded as
follows:
22. The position is almost undisputed that on 17.3.2005 the then
Chief Justice of India recommended for extension of term of 8 out of
9 persons named as Additional Judges for a further period of four
months w.e.f. 3.4.2005. On 29.4.2005 the collegium including the
then Chief Justice of India was of the view that name of Respondent
2 cannot be recommended along with another Judge for confirmation
as permanent Judge. Since it is crystal clear that the Judges are not
concerned with any political angle if there be any in the matter of
appointment as Additional Judge or permanent Judge; the then Chief
162

Shanti Bhushan (supra) - Para 2. The primary ground urged is that the opinion of the Chief Justice of
India has to be formed collectively after taking into account the views of his senior colleagues who are
required to be consulted by him for the formation of opinion and no appointment can be made unless it is in
conformity with the final opinion of the Chief Justice of India formed in the aforesaid manner. . It is,
therefore, submitted that the appointment of Respondent No.2 as a permanent Judge as notified on 2.2.2007
has no sanctity in law.

Justice should have stuck to the view expressed by the collegium and
should not have been swayed by the views of the Government to
recommend extension of the term of Respondent 2 for one year; as it
amounts to surrender of primacy by jugglery of words.

[emphasis supplied]
Even if I choose to ignore the controversial statements made
(in the recent past) with regard to the appointment in question
in the case, by persons who held high constitutional offices
and played some role in the appointment process including
former Members of this Court, the judgment leaves sufficient
scope for believing that all did not go well with the
appointment. It appears to have been a joint venture in the
subversion of the law laid down by the Second and Third
Judges cases by both the executive and the judiciary which
neither party is willing to acknowledge.
61.

The grievance of the petitioners in that case appears to be

that . Collegium was not consulted. . Unfortunately, there is no

precise finding in this regard in the said judgment.

On the

other hand, the content of para 22 of the judgment leaves me

with an uncomfortable feeling that there was some departure
from the law perhaps under some political pressure. I wish
that I were wrong.

62.

The second event is a recommendation made by the then

CJI apparently with the concurrence of the Collegium for

elevation of the petitioner. [See: P.D. Dinakaran (1) (supra); P.D.
Dinakaran (2) (supra)]. The recommendation did not fructify.
Serious allegations of unsuitability of the candidate whose
name was recommended surfaced leading to a great deal of
public debate. It is unpleasant to recount those allegations.
They are recorded in the abovementioned two judgments.
There is no allegation of any failure on the part of the
Collegium to comply with the procedure laid down in Second
and

Third

Judges

cases

in

making

the

ill-fated

recommendation. But, the recommendation certainly exposed

the shallowness (at least for once) of the theory propounded by
this Court in the trilogy of cases commencing from S.P. Gupta
and ending with the Third Judges case that the CJI and the
Collegium are the most appropriate authorities to make an
assessment of the suitability of candidates for appointment as
Judges of CONSTITUTIONAL COURTS in this country. A few more
instances were mentioned at the bar during the course of
hearing to demonstrate not only the shallowness of the theory
but also the recommendations by the Collegium have not
necessarily always been in the best interests of the institution

and the nation.

It is not really necessary to place on record

all the details but it is sufficient to mention that the earlier

mentioned two cases are not certainly the only examples of the
inappropriate exercise of the power of the Collegium.
63.

I am aware that a few bad examples of the improper

exercise of the power does not determine the character of the

power. Such inappropriate exercise of the power was resorted
to also by the Executive already noticed earlier.
government are accusing each other of not being worthy of trust.163

Both branches of

At least a

section of the civil society believes that both are right.

The

impugned

the

AMENDMENT

came

in

the

backdrop

of

above-mentioned experience.
64.

Independence of the judiciary is one of the basic features

of the Constitution. A seven-Judge Bench of this Court in L

Chandra Kumar v. Union of India & Ors., (1997) 3 SCC 261
already held that the power of judicial review of legislative
action by the CONSTITUTIONAL COURTS is part of the basic

163

Mehta, Pratap Bhanu, Whom do you trust, The Indian Express, May 14, 2015 The implicit constitutional
accusation is this. The judiciary had, through improvisation, created a method of appointing judges that effectively
sidelined other branches of government. This arrangement was tolerated, not because it conformed to a constitutional
text or some hallowed principle, but because it seemed to maintain judicial independence. The experience of the 1970s
made the prospect of political packing of the judiciary a live fear. This arrangement is being challenged, not because we
have discovered a new principle, but because the credibility of the judiciary has declined. We are, in effect, saying that
any arrangement that relies solely on the judiciary has proved untrustworthy. Those challenging the NJAC are relying
on the ghost of the 1970s: Do you really want the political class to have a greater say in appointments? Both branches of
government are accusing each other of not being worthy of trust. In the process, they have dragged each other down.
The problem is that both are right.

structure of the constitution and the exercise of such

important function demands the existence of an independent
judiciary.
78. The legitimacy of the power of courts within constitutional
democracies to review legislative action has been questioned since
the time it was first conceived. The Constitution of India, being
alive to such criticism, has, while conferring such power upon the
higher judiciary, incorporated important safeguards. An analysis
of the manner in which the Framers of our Constitution
incorporated provisions relating to the judiciary would indicate that
they were very greatly concerned with securing the independence
of the judiciary. These attempts were directed at ensuring that the
judiciary would be capable of effectively discharging its wide powers
of judicial review. While the Constitution confers the power to
strike down laws upon the High Courts and the Supreme Court, it
also contains elaborate provisions dealing with the tenure,
salaries, allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts. The
inclusion of such elaborate provisions appears to have been
occasioned by the belief that, armed by such provisions, the
superior courts would be insulated from any executive or
legislative attempts to interfere with the making of their
decisions. The Judges of the superior courts have been entrusted with
the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that
the balance of power envisaged by the Constitution is maintained and
that the legislature and the executive do not, in the discharge of their
functions, transgress constitutional limitations. It is equally their duty
to oversee that the judicial decisions rendered by those who man the
subordinate courts and tribunals do not fall foul of strict standards of
legal correctness and judicial independence. The constitutional
safeguards which ensure the independence of the Judges of the
superior judiciary, are not available to the Judges of the subordinate
judiciary or to those who man tribunals created by ordinary
legislations. Consequently, Judges of the latter category can never be
considered full and effective substitutes for the superior judiciary in
discharging the function of constitutional interpretation. We,
therefore, hold that the power of judicial review over legislative
action vested in the High Courts under Article 226 and in this
Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its basic
structure. Ordinarily, therefore, the power of High Courts and
the Supreme Court to test the constitutional validity of
legislations can never be ousted or excluded.

[emphasis supplied]

This aspect of the matter is not in issue.

None of the

respondents contested that proposition. The text of the

Constitution bears ample testimony for the proposition that
the

Constitution

seeks

to

establish

and

nurture

an

independent judiciary. The makers of the Constitution were

eloquent about it. Various Articles of the Constitution seek to
protect independence of the judiciary by providing appropriate
safeguards against unwarranted interference either by the
Legislature or the Executive, with the Judges conditions of
service and privileges incidental to the membership of the
CONSTITUTIONAL COURTS, such as, salary, pension, security of

tenure of the office etc. The scheme of the Constitution in that

regard is already noticed.164

Such protections are felt

necessary not only under our Constitution, but also several

other democratic Constitutions (the details of some of them are
already noticed in paras 25 to 27). Such protections are
incorporated in the light of the experience and knowledge of
history.

Various attempts made by Governments to subvert

the independence of the judiciary were known to the makers of

those Constitutions and also the makers of our Constitution.

164

See para 31 (supra)

65.

Articles 124 and 217 deal with one of the elements

necessary

to

establish

appointment process.

an

independent

judiciary

the

The Constituent Assembly was fully

conscious of the importance of such an element in establishing

and nurturing an independent judiciary. It examined various
models in vogue in other countries.

Dr. Ambedkars speech

dated 24th May 1949165 (quoted supra) is proof of such

awareness.

The Constituent Assembly was fully appraised of

the dangers of entrusting the power of appointment of

members of the CONSTITUTIONAL COURTS exclusively to the
Executive. At the same time, the Constituent Assembly was
also sensitised to the undesirability of entrusting such a power
exclusively to the CJI or allowing any role to the Parliament in
the

matter

of

the

judicial appointments.

The probable

consequences of assigning such a role were also mentioned by

Dr. Ambedkar.

The Constituent Assembly was informed of

the various models and institutional mechanisms in vogue

under various democratic Constitutions for appointment of the
members of the superior judiciary. The Constituent Assembly
was told by Dr. Ambedkar that the model, such as the one
contained in Articles 124 and 217 (as they stood prior to the
165

Constituent Assembly Debates, 24th May 1949 (Vol. VIII)

AMENDMENT) - may be regarded as sufficient for the moment .

Various

alternative models suggested by the members were not

accepted.166 The legislative history clearly indicates that the
members of the Constituent 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.

in the executive.

It declined to vest an unbridled power

At the same time did not agree with the

166

On 24th May 1949 while draft Article 103 of the draft Constitution was being discussed corresponding to
present Article 124, four members, Prof. Shibban Lal Saksena and Prof. K.T. Shah, who represented the
United Provinces of Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who represented
Madras Provinces suggested amendments to Article 103, the relevant portions of which read as follows:
Prof. Shibban Lal Saksena:
That for clause (2) of article 103, the following clauses be substituted(2)
The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be
appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint
session of both the Houses of Parliament.
Prof. K.T. Shah:
Every judge of the Supreme Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Council of States and such of the judges of the Supreme Court and of
the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the
age of sixty-five years.
Mr. B. Pocker Sahib:
That for clause (2) and the first proviso of clause (2) of article 103, the following be substituted(2)
Every judge of the Supreme Court other than the Chief Justice of India shall be appointed
by the President by warrant under his hand and seal after consultation with the concurrence of the Chief
Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his
hand and seal after consultation with the judges of the Supreme Court and the Chief Justices of the High
Court in the States and every judge of the Supreme Court.
Mr. Mahboob Ali Beig Sahib:
That in the first proviso to clause (2) of article 103, for the words the Chief Justice of India shall
always be consulted the words it shall be made with the concurrence of the Chief Justice of India be
substituted.

proposal that the CJIs concurrence is required for any

appointment.
66.

The system of Collegium the product of an interpretative

gloss on the text of Articles 124 and 217 undertaken in the

Second and Third Judges case may or may not be the best to
establish and nurture an independent and efficient judiciary.
There are seriously competing views expressed by eminent
people167, both on the jurisprudential soundness of the
judgments and the manner in which the Collegium system
operated in the last two decades.
67.

Neither the jurisprudential correctness of the concept of

Collegium nor how well or ill the Collegium system operated in

the last two decades is the question before us. The question is
whether such a system is immutable or is Parliament
competent to amend the Constitution and create an alternative
mechanism for selection and appointment of the members of
CONSTITUTIONAL COURTS of this country.

68.

The basic objection for the impugned AMENDMENT is that

it is destructive of the Constitutional objective of establishment

of an independent judiciary, and consequently the basic
167

See Footnote 50 (supra)

structure of the Constitution. Therefore, it falls foul of the law

laid down by this Court in Bharati case.
69.

To decide the correctness of the submission, it is

necessary:
(1)

to identify the ratio decidendi of Bharati case where the

theory

of

basic

structure

and

basic

features

originated.
(2)

Whether the expressions basic features and basic

structure of the Constitution are synonyms or do they
convey different ideas or concepts?

If so, what are the

ideas they convey?

(3)

Have they been clearly identified by earlier decisions of

this Court?

(4)

Are there any principles of law laid down by this Court to

identify the basic features of the Constitution?

(5)

If the two expressions basic features and basic

structure mean two different things, is it the destruction
of any one of them which renders any Constitutional
amendment void or should such an amendment be
destructive of both of them to become void.

(6)

When can a Constitutional amendment be said to destroy

or abrogate either a basic feature of the Constitution or
the basic structure of the Constitution?

70.

In Bharati case, one of the questions was whether

Article 368 confers unbridled power on the Parliament to

amend

the

Constitution.

That

question

arose

in

the

background of an earlier decision of this Court in I.C. Golak

Nath & Others v. State of Punjab & Another, (1967) 2 SCR 762168
wherein it was held that Article 368 conferred on Parliament a
limited power to amend the Constitution.

A Constitutional

amendment is law within the meaning of Article 13(3)(a) 169.

Any Constitutional amendment which seeks to take away or
even abridge any one of the rights guaranteed under Part-III of
the Constitution would be violative of the mandate contained
under Article 13(2)170 and therefore illegal.
71.

The correctness of I.C. Golak Nath was one of the

questions which fell for consideration of the larger Bench of

this Court in Bharati case.

168

Eleven opinions were rendered.

Heard by a Bench of 11 Judges and decided by a majority of 6:5

Article 13(3)(a). law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law.
170
Article 13(2). The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
169

This Court by majority held that every Article of the

Constitution including the articles incorporating fundamental
rights

are

amenable

to

the

amendatory

power

of

the

Parliament171 under Article 368 which is a constituent power

171

(Per Sikri, CJ) Para 292, fundamental rights cannot be abrogated but reasonable abridgements
of fundamental rights can be effected in public interest. That every provision of the Constitution can
be amended provided in the result the basic foundation and structure of the Constitution remains the
same. The basic structure may be said to consist of the following features:
(1)
(2)
(3)
(4)
(5)

Supremacy of the Constitution;

Republican and Democratic form of Government;
Secular character of the Constitution;
Separation of powers between the legislature, the executive and the judiciary;
Federal character of the Constitution.

(Per Shelat, J. who spoke for himself and Grover, J.) Paras 582, 583, there can be no difficulty
in discerning that the following can be regarded as the basic elements of the constitutional structure. These
cannot be catalogued but can only be illustrated:
(1)
The supremacy of the Constitution.
(2)
Republican and Democratic form of government and sovereignty of the country.
(3)
Secular and federal character of the Constitution.
(4)
Demarcation of power between the Legislature, the executive and the judiciary.
(5)
The dignity of the individual secured by the various freedoms and basic rights in
Part III and the mandate to build a welfare State contained in Part IV.
(6)
The unity and the integrity of the Nation.
and, therefore, the power under Article 368 is wide enough to permit amendment of each and
every article so long as its basic elements are not abrogated or denuded of their identity.
(Per Hegde, J, who also spoke for Mukherjea, J.) Para 666, Parliament has no power to abrogate
or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of
India, the democratic character of our polity, the unity of the country, the essential features of the individual
freedoms secured to the citizens. and mandate to build a welfare State and egalitarian society.
(Per P. Jaganmohan Reddy, J.) paras 1159, 1162, A sovereign democratic republic.
Parliamentary democracy, the three organs of the State constitute the basic structure. He further
held that without either the fundamental rights or directive principles it cannot be democratic
republic. Therefore, the power of amendment under Article 368 .. is not wide enough to totally abrogate
.. any one of the fundamental rights or other essential elements of the basic structure of the
Constitution and destroy its identity.
(Per Khanna, J.) para 1426,, the power under Article 368 does not take within its sweep the
power to destroy the old Constitution means the retention of the basic structure or framework of
the old Constitution it is not permissible to touch the foundation or to alter the basic institutional
pattern. According to Justice Khanna, such limitations are inherent and implicit in the word
amendment.

but such power does not enable Parliament to alter the basic structure or
framework of the Constitution.172

72.

That is the origin of the theory of basic structure of the Constitution.

Justice Shelat and Grover, J. used the expression basic elements

and held that they cannot be abrogated or denuded of their identity.
Justice Hegde and Mukherjea, J. used the expression basic
elements or fundamental features

and held that they cannot be

abrogated or emasculated. Justice Jaganmohan Reddy used

the expression essential elements of the basic structure and held that they
cannot be abrogated thereby destroying the identity of the
Constitution. Justice Sikri and Khanna, J. employed the
expressions basic structure or framework, foundation, the basic institutional pattern,
which is beyond the power of the Parliament under Article 368
of the Constitution.

Some of the learned Judges mentioned

certain features which according to them constitute basic or

essential features etc. of the Constitution.

All of them were

cautious to make it explicit that such features or elements

mentioned by them are only illustrative but not exhaustive. In
Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1980) 3 SCC

172

See the summary of the majority of the judgment signed by 9 Judges, p. 1007 of (1973) 4 SCC 225.

625, Justice Chandrachud, speaking for the majority of the

Constitution Bench, observed that para No.2 of the summary
signed by the nine Judges correctly reflects the majority view.
12. The summary of the various judgments in Kesavananda
Bharati (Supra) was signed by nine out of the thirteen Judges.
Paragraph 2 of the summary reads to say that according to the
majority, "Article 368 does not enable Parliament to alter the
basic structure or framework of the Constitution". Whether or
not the summary is a legitimate part of the judgment, or is per
incuriam for the scholarly reasons cited by authors, it is undeniable
that it correctly reflects the majority view.

[emphasis supplied]
73.

Again in Waman Rao & Ors. etc. etc. v. Union of India &

Ors., (1981) 2 SCC 362, Chief Justice Chandrachud speaking

for another Constitution Bench observed:
The judgment of the majority to which seven out of the thirteen
Judges were parties, struck a bridle path by holding that in the
exercise of the power conferred by Article 368, the Parliament
cannot amend the Constitution so as to damage or destroy the
basic structure of the Constitution. (Para 15)

[emphasis supplied]
By then Justice Chandrachud had already expressed his
opinion in Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC
1 as follows:
663. There was some discussion at the Bar as to which features
of the Constitution form the basic structure of the Constitution
according to the majority decision in the Fundamental Rights case.
That, to me, is an inquiry both fruitless and irrelevant. The ratio of
the majority decision is not that some named features of the
Constitution are a part of its basic structure but that the power
of amendment cannot be exercised so as to damage or destroy
the essential elements or the basic structure of the Constitution,
whatever these expressions may comprehend.

[emphasis supplied]

The above passages, indicate that it is not very clear from

Bharati case whether the expression basic structure, basic features and
essential

elements

convey the same idea or different ideas.

Therefore, it is necessary to examine some decisions where the

legality of the constitutional amendments was considered by
this Court subsequent to Bharati case.
74.

The earliest of them is Indira Nehru Gandhi case (supra).

By the Constitution 39th Amendment Article 329A was

inserted.

Clauses (4) and (5) of the said Article sought to

exclude the complaints of violation of the provisions of The

Representation of the People Act, 1951 from scrutiny of any
forum whatsoever in so far as such complaints pertain to the
election of the Prime Minister or the Speaker of the Lok Sabha.
The question whether such an amendment violated any one of
the basic features of the Constitution arose.

It was argued

that the amendment was violative of four basic features of the

Constitution. They are : (1) Democratic form of Government;
(2) Separation of Powers between the legislature, the executive
and the judiciary; (3) the principle of Equality of all before the
law;

and (4) the concept of the rule of law.

A Constitution

Bench of this Court held that the impugned clauses were

beyond the competence of the Parliaments power under Article

368.173

75.

Four out of the five Judges agreed upon the conclusion

that the impugned amendment was destructive of the basic

structure of the Constitution. Each one of the Judges opined
that the impugned provision violated a distinct basic feature of
the Constitution leading to the destruction of the basic
structure of the Constitution.
76.

In Minerva Mills case (supra), this Court once again was

confronted with the problem of basic structure of the

Constitution.174

By the Constitution (42nd Amendment) Act

among other things, Clauses (4) and (5) came to be added in

Article 368 and Article 31-C came to be amended by
173

The judgment in Indira Nehru Gandhi case (supra) is neatly summarised by Chandrachud, J. in Waman
Rao case at para 15:
15. in Indira Gandhi v. Raj Narain Article 329-A(4) was held by the Court to be
beyond the amending competence of the Parliament since, by making separate and special
provisions as to elections to Parliament of the Prime Minister and the speaker, it destroyed the
basic structure of the Constitution. Ray, C.J. based his decision on the ground that the 39th
Amendment by which Article 329-A was introduced violated the Rule of Law (p. 418) (SCC p.
44); Khanna, J. based his decision on the ground that democracy was a basic feature of the
Constitution, that democracy contemplates that elections should be free and fair and that the clause
in question struck at the basis of free and fair elections (pp. 467 and 471) (SCC pp. 87 and 91);
Mathew, J. struck down the clause on the ground that it was in the nature of legislation ad
hominem (p. 513) (SCC p. 127) and that it damaged the democratic structure of the Constitution
(p. 515) (SCC p. 129); while one of us, Chandrachud, J., held that the clause was bad because it
violated the Rule of Law and was an outright negation of the principle of equality which is a basic
feature of the Constitution (pp. 663-65) (SCC p. 257).
174
Para 13. The question which we have to determine on the basis of the majority view in Kesavananda
Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment)
Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or
essential elements.

substituting certain words in the original Article. Chief Justice

Chandrachud spoke for the majority of the Court and declared
Sections 4 and 55 of the Constitution (42 nd Amendment) Act to
be violative of the basic structure of the Constitution. Dealing
with the amendment to Article 368, this Court held:
Para 16. .. The majority (in Bharati case) conceded to the
Parliament the right to make alterations in the Constitution so long
as they are within its basic framework. And what fears can that
judgment raise or misgivings generate if it only means this and no
more. The preamble assures to the people of India a polity whose
basic structure is described therein as a Sovereign Democratic
Republic; Parliament may make any amendments to the
Constitution as it deems expedient so long as they do not damage
or destroy Indias sovereignty and its democratic, republican
character. Democracy is not an empty dream. It is a meaningful
concept whose essential attributes are recited in the preamble itself:
Justice social, economic and political; Liberty of thought,
expression, belief, faith and worship; and Equality of status and
opportunity. Its aim, again as set out in the preamble, is to promote
among the people an abiding sense of fraternity assuring the
dignity of the individual and the unity of the nation. The newly
introduced clause (5) of Article 368 demolishes the very pillars on
which the preamble rests by empowering the Parliament to exercise
its constituent power without any limitation whatever. No
constituent power can conceivably go higher than the sky-high
power conferred by clause (5), for it even empowers the Parliament
to repeal the provisions of this Constitution, that is to say, to
abrogate the democracy and substitute for it a totally antithetical
form of Government. That can most effectively be achieved,
without calling a democracy by any other name, by a total denial of
social, economic and political justice to the people, by
emasculating liberty of thought, expression, belief, faith and
worship and by abjuring commitment to the magnificent ideal of a
society of equals. The power to destroy is not a power to amend.

[emphasis supplied]

The issue arising from the amendment to Article 31-C was

identified to be whether the directive principles of the State Policy contained in
Part-IV can have primacy over the fundamental rights contained in Part-III of the

Constitution because the 42nd amendment sought to subordinate the

fundamental rights conferred by Articles 14 and 19 to the directive principles . This

Court formulated the question whether such an amendment

was within the amendatory power of the Parliament in view of
the law laid down by this Court in Bharati case. The Court
propounded that:
41. .. It is only if the rights conferred by these two Articles are
not a part of the basic structure of the Constitution that they can be
allowed to be abrogated by a constitutional amendment. If they are
a part of the basic structure, they cannot be obliterated out of
existence in relation to a category of laws described in Article 31-C
or, for the matter of that, in relation to laws of any description
whatsoever, passed in order to achieve any object or policy
whatsoever. This will serve to bring out the point that a total
emasculation of the essential features of the Constitution is, by the
ratio in Kesavananda Bharati, not permissible to the Parliament.

The Court finally reached the conclusion that the Parts III and
IV of the Constitution are like two wheels of a chariot both
equally important and held:
56.
.. To give absolute primacy to one over the other is to
disturb the harmony of the Constitution. This harmony and
balance between the fundamental rights and directive principles
is an essential feature of the basic structure of the
Constitution.

[emphasis supplied]
This Court concluded that the amendment to Article 31C is
destructive of the basic structure as it abrogated the protection
of Article 14 & 19 against laws which fall within the ambit of
the description contained in Article 31C.

77.

In Waman Rao case (supra), Article 31-A(1)(a) which came

to be introduced by the Constitution (First Amendment) Act

was challenged on the ground that it damages the basic
structure of the Constitution. The said Article made a
declaration that no law providing for acquisition by the State of
any estate or of any rights therein etc. shall be deemed to be
void on the ground that such law violated Articles 14, 19 and
31 of the Constitution. In other words, though Articles 14, 19
and 31 remain on the statute book, the validity of the category
of laws described in Article 31-A(1)(a) cannot be tested on the
anvil of Articles 14, 19 and 31. Dealing with the permissibility
of such an amendment, the Court held as follows:
In any given case, what is decisive is whether, insofar as the
impugned law is concerned, the rights available to persons affected
by that law under any of the articles in Part III are totally or
substantially withdrawn and not whether the articles, the
application of which stands withdrawn in regard to a defined
category of laws, continue to be on the statute book so as to be
available in respect of laws of other categories. We must therefore
conclude that the withdrawal of the application of Articles 14, 19
and 31 in respect of laws which fall under clause (a) is total and
complete, that is to say, the application of those Articles stands
abrogated, not merely abridged, in respect of the impugned
enactments which indubitably fall within the ambit of clause (a).
We would like to add that every case in which the protection of a
fundamental right is withdrawn will not necessarily result in
damaging or destroying the basic structure of the Constitution. The
question as to whether the basic structure is damaged or
destroyed in any given case would depend upon which
particular Article of Part III is in issue and whether what is
withdrawn is quintessential to the basic structure of the
Constitution. (Para 14)

[emphasis supplied]

But this Court finally reached the conclusion that the

Amendment did not damage or destroy the basic structure
and, therefore, upheld the Amendment175. Such a conclusion
was reached on the basis of the logic
29. The First Amendment is aimed at removing social and
economic disparities in the agricultural sector. It may happen that
while existing inequalities are being removed, new inequalities
may arise marginally and incidentally. Such marginal and
incidental inequalities cannot damage or destroy the basic structure
of the Constitution. It is impossible for any government, howsoever
expertly advised, socially oriented and prudently managed, to
remove every economic disparity without causing some hardship or
injustice to a class of persons who also are entitled to equal
treatment under the law. ..

This Court held that though the protection of Articles 14 and

19 is totally abrogated, the withdrawal or abrogation of such
protection does not necessarily result in damage or destruction
of the basic structure of the Constitution. In other words, this
Court held that if in the process of seeking to achieve a larger
constitutional goal of removing social and economic disparities in the
agricultural sector and effectuating the twin principles contained in

Article 39(b) and (a) if new inequalities result marginally and

incidentally they cannot be said to be destructive of the basic
structure of the Constitution.

175

Para 31. For these reasons, we are of the view that the Amendment introduced by Section 4 of the
Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the
Constitution. The Amendment must, therefore, be upheld on its own merits.

78.

Both Minerva Mills and Waman Rao dealt with the

abrogation of Articles 14 and 19 or absolute withdrawal of the

protection of those fundamental rights with reference to
certain classes of legislation. This Court held in the first of the
above mentioned cases that such withdrawal amounted to
abrogation of a basic feature and, therefore, destructive of the
basic structure of the Constitution and in the second case this
Court carved out an exception to the rule enunciated in
Minerva Mills and held that such abrogation insofar as the law
dealing with agrarian reforms did not destroy the basic
structure. These cases only indicate that; (i) the expressions
basic structure and basic features convey two different ideas,
(ii) the basic features are COMPONENTS of basic structure. It
also follows from these cases that either a particular Article or
set

of

Articles

Constitution.

can

constitute

basic

feature

of

the

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.

79.

This Court in S.R. Bommai v. Union of India, (1994) 3 SCC

1, recognised the concept of secularism as one of the basic

features of the Constitution not because any one of the Articles

of the Constitution made any express declaration to that effect
but such a conclusion followed from the scheme of the various
provisions of the Constitution.176

80.

This Court in M. Nagaraj & Others v. Union of India &

Others177, (2006) 8 SCC 212, deduced the principle that the

process of

identifying the basic features of the Constitution

lies in the identification of some concepts which are beyond

the words of any particular provision but pervade the scheme
of the Constitution.

Some of these concepts may be so

important and fundamental as to qualify to be called essential

features of the Constitution or part of the basic structure of
the Constitution therefore not open to the amendment.

This Court specified the process by which the basic features of

the Constitution are to be identified. The Court held:
23. . Therefore, it is important to note that the recognition
of a basic structure in the context of amendment provides an
insight that there are, beyond the words of particular 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
176

See paras 25 to 29 Ahmadi, J., para 145 Sawant, J., paras 183 to 186 Ramaswamy, J., para 304
Jeevan Reddy, J.
177

In this case, this Court had to decide the validity of the Constitution (Eighty Fifth) Amendment Act 2001
by which Article 16(4A) was amended in the Constitution with retrospective effect. It provided a rule of
reservation in the context of the promotion in the Government service. Such an amendment was challenged
to be violative of the basic structure of the Constitution.

part of constitutional law even if they are not expressly stated in the
form of rules. An instance is the principle of reasonableness which
connects Articles 14, 19 and 21. Some of these principles may be
so important and fundamental, as to qualify as essential features
or part of the basic structure of the Constitution, that is to say,
they are not open to amendment. However, it is only by linking
provisions to such overarching principles that one would be able to
distinguish essential from less essential features of the Constitution.
24.
The point which is important to be noted is that principles
of federalism, secularism, reasonableness and socialism, etc. are
beyond the words of a particular provision. They are systematic
and structural principles underlying and connecting various
provisions of the Constitution. They give coherence to the
Constitution. They make the Constitution an organic whole. They
are part of constitutional law even if they are not expressly stated in
the form of rules.
25.
For a constitutional principle to qualify as an essential
feature, it must be established that the said principle is a part of the
constitutional law binding on the legislature. Only thereafter, is the
second step to be taken, namely, whether the principle is so
fundamental as to bind even the amending power of Parliament i.e.
to form a part of the basic structure. The basic structure concept
accordingly limits the amending power of Parliament. To sum up:
in order to qualify as an essential feature, a principle is to be
first established as part of the constitutional law and as such
binding on the legislature. Only then, can it be examined whether
it is so fundamental as to bind even the amending power of
Parliament i.e. to form part of the basic structure of the
Constitution. This is the standard of judicial review of
constitutional amendments in the context of the doctrine of basic
structure.

[emphasis supplied]
81.

In I.R. Coelho (Dead) By LRs v. State of T.N. (2007) 2 SCC

1, this Court ruled;

129. Equality, rule of law, judicial review and separation of
powers form parts of the basic structure of the Constitution.
Each of these concepts are intimately connected. There can be no
rule of law, if there is no equality before the law. These would be
meaningless if the violation was not subject to the judicial review.
All these would be redundant if the legislative, executive and
judicial powers are vested in one organ. Therefore, the duty to
decide whether the limits have been transgressed has been placed
on the judiciary.

130. Realising that it is necessary to secure the enforcement of

the fundamental rights, power for such enforcement has been
vested by the Constitution in the Supreme Court and the High
Courts. Judicial Review is an essential feature of the Constitution.
It gives practical content to the objectives of the Constitution
embodied in Part III and other parts of the Constitution. It may be
noted that the mere fact that equality, which is a part of the basic
structure, can be excluded for a limited purpose, to protect certain
kinds of laws, does not prevent it from being part of the basic
structure. Therefore, it follows that in considering whether any
particular feature of the Constitution is part of the basic
structure - rule of law, separation of powers - the fact that limited
exceptions are made for limited purposes, to protect certain kind of
laws, does not mean that it is not part of the basic structure.

[emphasis supplied]
82.

An analysis of the judgments of the abovementioned

cases commencing from Bharati case yields the following

propositions:
(i)

Article 368 enables the Parliament to amend

any provision of the Constitution;

(ii)

The power under Article 368 however does not

enable the Parliament to destroy the basic
structure of the Constitution;

(iii)

None of the cases referred to above specified or

declared what is the basic structure of the
Constitution;

(iv)

The expressions basic structure and basic

features convey different ideas though some of
the learned Judges used those expressions
interchangeably.

(v)

The basic structure of the Constitution is the

sum

total

of

the

basic

features

of

the

Constitution;
(vi)

Some of the basic features identified so far by

this Court are democracy, secularism, equality
of status, independence of judiciary, judicial
review and some of the fundamental rights;

(vii) The abrogation of any one of the basic features

results normally in the destruction of the basic
structure of the Constitution subject to some
exceptions;
(viii) As to when the abrogation of a particular basic
feature can be said to destroy the basic
structure of the Constitution depends upon the
nature of the basic feature sought to be
amended and the context of the amendment.
There is no universally applicable test vis--vis
all the basic features.

83.

Most of the basic features identified so far in the various

cases referred to earlier are not emanations of any single

Article of the Constitution. They are concepts emanating from

a combination of a number of Articles each of them creating

certain rights or obligations or both (for the sake of easy
reference I call them ELEMENTS). For example,

(a) when it is said that the democracy is a basic feature of

our Constitution, such a feature, in my opinion, emerges
from the various articles of the Constitution which
provide for the establishment of the legislative bodies 178
(Parliament and the State Legislatures) and the Articles
which prescribe a periodic election to these bodies 179
based on adult franchise180;

the role assigned to these

bodies, that is, to make laws for the governance of this

Country

in

establishment

their
of

respective
an

spheres181;

independent

and

machinery182

the
for

conducting the periodic elections etc.;

(b)

the concept of secularism emanates from various

articles contained in the fundamental rights chapter like

Articles 15 and 16 which prohibits the State from
practicing any kind of discrimination on the ground of
religion and Articles 25 to 30 which guarantee certain
178

Articles 79-84 and 168-173

Articles 83 and 172
180
Article 326
181
Articles 245 and 246 etc.
182
Article 324
179

fundamental rights regarding the freedom of religion to

every person and the specific mention of such rights with
reference to minorities.

84.

The abrogation of a basic feature may ensue as a

consequence of the amendment of a single Article in the

cluster of Articles constituting the basic feature as it happened
in Minerva Mills case and Indira Nehru Gandhi case.

85.

On the other hand, such a result may not ensue in the

context of some basic features. For

example,

Article

326

prescribes that election to Lok Sabha and the Legislative

Assemblies shall be on the basis of adult suffrage.

Adult

suffrage is explained in the said Article as:

that is to say, every person who is a citizen of India and who is
not less than eighteen years of age on such date as may be fixed in
that behalf by or under any law made by the appropriate
Legislature and is not otherwise disqualified under this
Constitution or any law made by the appropriate Legislature on the
ground of non-residence, unsoundness of mind, crime or corrupt or
illegal practice, shall be entitled to be registered as a voter at any
such election.

One of the components is that the prescription of the

minimum age limit of 18 years. Undoubtedly, the right created
under Article 326 in favour of citizens of India to participate in
the election process of the Lok Sabha and the Legislative

Assemblies is an integral part (for the sake of convenience, I

call it an ELEMENT) of the basic feature i.e. democracy.
However, for some valid reasons, if the Parliament were to
amend Article 326 fixing a higher minimum age limit, it is
doubtful whether such an amendment would be abrogative of
the basic feature of

democracy thereby resulting in the

destruction of the basic structure of the Constitution.

It is

worthwhile remembering that the minimum age of 18 years

occurring under Article 326 as on today came up by way of the
Constitution (Sixty-first Amendment) Act, 1988. Prior to the
amendment, the minimum age limit was 21 years.
86.

As held by this Court in Minerva Mills case, the

amendment of a single article may result in the destruction of

the basic structure of the Constitution depending upon the
nature of the basic feature and the context of the abrogation of
that article if the purpose sought to be achieved by the Article
constitutes the quintessential to the basic structure of the
Constitution.

87.

In my opinion, these cases also are really of no help for

determining the case on hand as they do not lay down any

general principle by which it can be determined as to when can

a constitutional amendment be said to destroy the basic

structure of the Constitution.

In the case on hand, the

identity of the basic feature is not in dispute. The question is

whether the AMENDMENT is abrogative of the independence of
judiciary (a basic feature) resulting in the destruction of the
basic structure of the Constitution.

88.

By the very nature of the basic feature with which we are

dealing, it does not confer any fundamental or constitutional

right in favour of individuals. It is only a means for securing to
the people of India, justice, liberty and equality.

It creates a

collective right in favour of the polity to have a judiciary which

is free from the control of the Executive or the Legislature in its
essential function of decision making.
89.

The challenge to the AMENDMENT is required to be

examined in the light of the preceding discussion.

The

petitioners argued that (i) Independence of the judiciary is a

basic feature (COMPONENT) of the basic structure of the
Constitution; (ii) the process of appointment of members of
constitutional courts is an essential ingredient (ELEMENT) of
such COMPONENT; (iii) the process prescribed under unamended
Articles 124 and 217, as interpreted by this Court in the

Second and Third Judges cases, is a basic feature and was so

designed

by

framers

of

the

Constitution

for

ensuring

independence of the judiciary, by providing for primacy of the

opinion of the CJI (Collegium); and not of the opinion of the
President (the Executive); (iv) the AMENDMENT dilutes such
primacy and tilts the balance in favour of the Executive,
thereby abrogating a basic feature, leading to destruction of
the basic structure.
90.

The prime target of attack by the petitioners is Section

2(a) of the AMENDMENT by which the institutional mechanism

for appointment of judges of constitutional courts is replaced.
According to the petitioners, the AMENDMENT is a brazen
attempt by the Executive branch to grab the power of
appointing Judges to CONSTITUTIONAL COURTS.

Such shift of

power into the hands of Executive would enable packing of the

CONSTITUTIONAL COURTS with persons who are likely to be less

independent.
91.

It is further argued that the principles laid down in the

Second and Third Judges cases are not based purely on the
interpretation of the text of the Constitution as it stood prior to
the impugned AMENDMENT but also on the basis of a

fundamental Constitutional principle that an independent

judiciary is one of the basic features of the Constitution. The
procedure

for

appointment

CONSTITUTIONAL COURTS

of

the

Judges

of

the

is an important element in the

establishment and nurturing of an independent judiciary.

Such conclusion not only flows from the text of the Articles
124 and 217 as they stood prior to the impugned AMENDMENT
but flow from a necessary implication emanating from the
scheme of the Constitution as evidenced by Articles 32, 50,
112(3)(d), 113(1), 203(1), 125(2), 221(2) etc.
92.

Mr. Nariman, learned Senior Counsel appearing for one of

the petitioners emphatically submitted that he is not against

change of the mechanism provided under Articles 124 and
217.

He submitted that this aspect of the matter fell for

consideration of Justice M.N. Venkatachaliah Commission183,

which also recommended creation of a National Judicial
Appointments

Commission

but

with

slightly

different

composition184. If really Parliament wanted to change in the

183

The National Commission to Review the Working of the Constitution (NCRWC), 2002 chaired by
Justice M.N. Venkatachaliah
184

7.3.7 The matter relating to manner of appointment of judges had been debated over a decade. The
Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced on 18 th May, 1990 (9th 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 appears that latterly
there is a movement throughout the world to move this function away from the exclusive fiat of the
executive and involving some institutional frame work whereunder consultation with the judiciary at some
level is provided for before making such appointments. The system of consultation in some form is already

mechanism for the selection of the members of the superior

judiciary, the model recommended by the Justice M.N.
Venkatachaliah Commission could well have been adopted.
According

to

Mr.

Nariman

the

model

identified

by

Venkatachaliah Commission is more suitable for preservation

of independence of the judiciary than the model adopted in the
AMENDMENT.
are

given

Mr. Nariman further argued that no reasons

by

recommendations

the
of

Union
the

of

Justice

India
M.N.

explaining

why

Venkatachaliah

Commission were not accepted.

93.

On the other hand, it is submitted by the learned

Attorney General and other senior counsel appearing for

various respondents;
(i)

Parliaments power to amend the Constitution

is plenary subject only to the limitation that it

available in Japan, Israel and the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for
a collegium of the Chief Justice of India and two other judges of the Supreme Court for making
appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the
participation of both the executive and the judiciary in making such recommendations. The Commission
proposes the composition of the Collegium which gives due importance to and provides for the effective
participation of both the executive and the judicial wings of the State as an integrated scheme for the
machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a
National Judicial Commission under the Constitution.
The National Judicial Commission for appointment of judges of the Supreme Court shall
comprise of:
2.

1.
The Chief Justice of India
Chairman
Two senior most judges of the Supreme Court:
Member
3
The Union Minister for Law and Justice:
Member
4
One eminent person nominated by the President after consulting the CJI

Member

The recommendation for the establishment of a National Judicial Commission and its
composition are to be treated as integral in view of the need to preserve the independence of the judiciary.

cannot

abrogate

Constitution.

the

The

basic

structure

AMENDMENT

in

of

the

no

way

abrogates the basic structure of the Constitution.

(ii)

Independence of judiciary is not the only

objective envisaged by the Constitution, it also

envisages an efficient judiciary. To achieve such
twin objects, Parliament in its wisdom thought that
the selection process of the members of the
CONSTITUTIONAL COURTS as it existed prior to the
AMENDMENT required modification. The wisdom of
Parliament is not amenable to the scrutiny of this
Court, even in the context of ordinary legislation.
Logically, a constitutional amendment therefore
should enjoy a greater degree of immunity.
In other words, where the goal sought to be achieved
by Parliament is constitutionally legitimate, the
legislation by which such a goal is sought to be
achieved can be questioned only on limited grounds.
They are (i) lack of legislative competence, (ii) the
legislation violates any one of the fundamental
rights enumerated in Part III of the Constitution, or

is

in

contravention

of

some

other

prohibition of the Constitution.

express

Absent such

objectionable features, the possibility that the goal

sought to be achieved by the legislation can be
achieved through modes other than the one chosen
by the legislation can never be a ground for
invalidating even an ordinary legislation as has been
consistently held by this Court.

In the case of a

constitutional amendment question of legislative

competence in the above-mentioned sense and
conflict with the other provisions of the Constitution
are irrelevant and does not arise.
(iii) Checks and balances of powers conferred by the
Constitution

on

the

three

great

branches

of

governance Legislature, Executive and Judiciary is

the

most

basic

constitutions.
the

three

feature

is

values

and

Constitution.

all

democratic

Absolute independence of any one of

branches

democratic

of

inconsistent
the

with

scheme

of

core
our

This Court by an interpretative

process of the Constitution as it stood prior to the

AMENDMENT

disturbed

such

balance.

The

AMENDMENT only seeks to restore such balance and

therefore cannot be said to be destructive of the

basic structure of the Constitution.
(iv) That the law laid down by this Court in Second
and Third Judges case is no more relevant in view of
the fact that the text of the Constitution which was
the subject matter of interpretation in the said cases
stands amended.

In the light of well settled

principles of interpretation of statutes the law laid

down in those two cases is no more a good law. It is
further argued that in the event this Court comes to
the conclusion that the law laid down in the
abovementioned two judgments has some relevance
for determining the constitutional validity of the
AMENDMENT

and

also

the

correctness

of

the

principles laid down in those judgments requires

reconsideration by a Bench of appropriate strength.
According to the Attorney General and other learned
counsel for respondents, the abovementioned two
judgments

are

contrary

to

the

text

of

the

Constitution as it stood then and in complete

disregard

of

the

constitutional

history

and

background of the relevant provisions. It is further

submitted

that

under

the

scheme

of

the

Constitution, neither this Court nor High Courts are

conferred unqualified autonomy though a large
measure of autonomy is conferred under various
provisions. For example the salaries, privileges and
allowances, pension etc. could still be regulated by
law made by Parliament under Article 125 and 221,
137, 140, 145 etc.
(v)

It is submitted that independence of the

judiciary is indisputably a basic feature of the

Constitution. An essential element of this basic
feature is that the President (Executive) should not
have an unfettered discretion in such appointment
process but not that the opinion of the CJI
(Collegium) should have primacy or dominance. The
judgments of this Court in the Second and Third
Judges cases are not only counter textual but also
plainly contrary to the intent of the Constituent

Assembly and clearly beyond limits of judicial

power, it is an exercise of constituent authority in
the

disguise

of

interpretation.

Under

the

AMENDMENT, the President has no discretion in the

matter of appointment of Judges of CONSTITUTIONAL

COURTS. He is bound by the recommendation of the

NJAC wherein members of the judiciary constitute

the single largest group.

Parliament exercising

constituent power (under Article 368) considered it

appropriate that representatives of the Civil Society
should be accorded a participatory role in the
process of appointments to CONSTITUTIONAL COURTS
and that their presence would be a check on
potential and consequently ruinous trade offs; (i)
between

and

amongst

the

three

members

representing the judiciary and (ii) between the

judiciary and the executive; and would accentuate
transparency to what had hitherto been an opaque
process. Such wisdom of the Parliament in not open
to

question.

It is an established and venerated

principle that the Court would not sit in judgment

over the wisdom of Parliament even in respect of an

ordinary legislation; a constitutional amendment

invites a greater degree of deference.
(vi)

Even under the scheme of the AMENDMENT,

judiciary has a pre-dominant role. The apprehension

that, under the new dispensation, Executive would
have

the

opportunity

of

packing

the

CONSTITUTIONAL COURTS of this country with

cronies is illogical and baseless.

The presence of

three senior most Judges of this Court in the NJAC

is a wholesome safeguard against such possibility.
Any two of the three Judges can stall such an effort,
if ever attempted by the Executive.
(vii) The fact that a Commission headed by Justice
M.N.Venkatachaliah made certain recommendations
need not necessarily mean that the model suggested
by the Commission is the only model for securing
independence of the judiciary or the best model. At
any rate, the choice of the appropriate model
necessarily involves a value judgment.
chosen

by

constituent

the

Parliament

powers

cannot

in
be

The model

exercise
held

of

its

to

be

unconstitutional only on the ground that in the

opinion

of

some,

there

are

better

models

or

alternatives. Such a value judgment is exclusively

in the realm of the Parliaments constituent powers.
It is also argued that the mechanism for selection of
members

of

the constitutional courts

as

expounded in the Second and the Third Judges

cases, even according to Mr. Narimans opinion is
not the best. Mr. Nariman is on record stating so in
one of the books authored by him Before Memory
Fades : An Autobiography185.

94.

Any

appointment

process

established

under

the

Constitution must necessarily be conducive for establishment

of not only an independent judiciary but also ensure its
efficiency. Two qualities essential for preservation of liberty.
In order to lay a due foundation for that separate and
distinct exercise of the different powers of government,
which to a certain extent is admitted on all hands to be
essential to the preservation of liberty, it is evident that
each department should have a will of its own, and
185

Fali S. Nariman, Before Memory Fades An Autobiography,

p. 389 If there is one important case decided by the Supreme Court of India in which I appeared
and won, and which I have lived to regret, it is the decision that goes by the title Supreme Court
Advocates-on-Record Association vs Union of India. It is a decision of the year 1993 and is better known as
the Second Judges Case.
p.400 - I dont see what is so special about the first five judges of the Supreme Court. They are
only the first five in seniority of appointment not necessarily in superiority of wisdom or competence. I
see no reason why all the judges in the highest court should not be consulted when a proposal is made for
appointment of a high court judge (or an eminent advocate) to be a judge of the Supreme Court. I would
suggest that the closed-circuit network of five judges should be disbanded. They invariably hold their
cards close to their chest. They ask no one. They consult no one but themselves.

consequently should be so constituted that the members

of each should have as little agency as possible in the
appointment of the members of the others. Were this
principle rigorously adhered to, it would require that all
the appointments for the supreme executive, legislative,
and judiciary magistracies should be drawn from the
same fountain of authority, the people, through channels
having no communication whatever with one another.
Some difficulties, and some additional expense would
attend the execution of it. Some deviations, therefore, from
the principle must be admitted. In the constitution of the
judiciary department in particular, it might be
inexpedient to insist rigorously on the principle: first,
because peculiar qualifications being essential in the
members, the primary consideration ought to be to
select that mode of choice which best secures these
qualifications.186

[emphasis supplied]
Judges who

could decide causes brought

before them

expeditiously and consistent with applicable principles of

jurisprudence, generate confidence, in litigants and the polity
that they indeed dispense justice. Whether the appointment
process prior to the AMENDMENT yielded such appointments
has been deeply contentious. As submitted by the learned
Attorney

General,

the

history

of

appointments

to

CONSTITUTIONAL COURTS in our Republic could be divided into

two phases pre and post Second Judges case.

No doubt

during both phases, the appointment process yielded mixed

results, on the index of both independence and efficiency.
Some outstanding and some not so outstanding persona came
to be appointed in both phases.
186

See Federist No.51 (Hamilton or Madison) (1788)

Allegations of seriously

unworthy appointments abound but our system provides for

no mechanism for audit or qualitative analysis. Such systemic
deficit has pathological consequences.

95.

Parliament

representing

the

majoritarian

will

was

satisfied that the existing process warrants change and acted

in

exercise

of

its

constituent

power

and

concomitant

discretion. Such constituent assessment of the need is clearly

off limits to judicial review. Whether curative ushered in by
the

AMENDMENT

transgresses

the

permissible

limits

of

amendatory power is certainly amenable to Judicial Review

because of the law declared in Bharati case and followed
consistently thereafter.

96.

The text and scheme of the AMENDMENT excludes

discretion to the President in making appointments to

CONSTITUTIONAL COURTS and the President is required to accept

recommendations by the NJAC.

The amended Articles

stipulate that judges of CONSTITUTIONAL COURTS shall be appointed by

the President . on the recommendation of the NJAC.

97.

Prior to the AMENDMENT, there were only two parties to

the appointment process, the Executive and the Judiciary.

The relative importance of their roles varied from time to time.

The AMENDMENT makes three important changes - (i) primacy
of judiciary is whittled down; (ii) role of the executive is also
curtailed; and (iii)

representatives of civil society are made

part of the mechanism.

98.

Primacy of the opinion of judiciary in the matter of

judicial

appointments

is

not

the

only

means

for

the

establishment of an independent and efficient judiciary. There

is abundance of opinion (in discerning and responsible
quarters of the civil society in the legal fraternity, jurists,
political theorists and scholars) that primacy to the opinion of
judiciary is not a normative or constitutional fundamental for
establishment of an independent and efficient judiciary. Such
an assumption has been proved to be of doubtful accuracy. It
is Parliaments asserted assumption that induction of civil
society representation will bring about critically desirable
transparency, commitment and participation of the ultimate
stakeholders the people. The fountain of all constitutional
authority, to ensure appointment of the most suitable persons
with due regard to legitimate aspirations of the several
competing interests.

Various democratic societies have and

are experimenting with models involving association of civil

society representation in such selection process. Assessment
of the product of such experiments are however inconclusive.
The question is not whether the model conceived by the
AMENDMENT would yield a more independent and efficient

judiciary. The question is whether Parliaments wisdom and

authority to undertake such an experiment by resort to
constituent power is subject to curial audit.

99.

As rightly pointed out by the Attorney General, the basic

feature of the Constitution is not primacy of the opinion of the

CJI (Collegium) but lies in non investiture of absolute power in
the President (Executive) to choose and appoint judges of
CONSTITUTIONAL COURTS. That feature is not abrogated by the
AMENDMENT. The Executive may at best only make a proposal

through its representative in the NJAC, i.e. the Law Minister.

Such proposal, if considered unworthy, can still be rejected by
the other members of the NJAC.

The worth of a candidate

does not depend upon who proposes the name nor the
candidates

political

association,

if

any,

should

be

disqualification.
, even party men can be fiercely independent after being
appointed judges, as has been proved by some judges who were

active in politics. Justice K.S. Hegde served as a member of Rajya

Sabha from 1952 to 1957 and was elevated as a High Court judge
directly from Rajya Sabha. Though he was a congress MP, he
proved to be so independent that he was superseded in 1973 in the
appointment of the CJI by his own partys government. Justice
Tekchand was also a member of Rajya Sabha before becoming a
judge. He was appointed when he was a sitting MP, but he proved
to be a fine judge whose report on prohibition is a landmark.
Another prominent example is Justice V.R. Krishna Iyer who was
made a judge of the Kerala High Court in 1968, though he had not
only been an MLA but also a minister in the Namboodiripad
government (1957-59) in Kerala. In 1973, Justice S.M. Sikri, the
CJI, was totally opposed to the elevation of Justice Iyer to the apex
court on the ground that he had been a politician who held the
office of a cabinet minister in Kerala. It was A.N. Ray who cleared
his elevation, and Justice Iyer proved to be a luminous example of
what a judge ought to be. He was one of the finest judges who ever
sat on the bench of the Supreme Court who tried to bridge the gap
between the Supreme Court and the common people. There is also
the example of Justice Bahrul Islam who served as a member of
Rajya Sabha for 10 years before being appointed a High Court
judge. He was subsequently elevated to the Supreme Court. He
absolved Jagannath Mishra, the Chief Minister of Bihar, in the
urban cooperative bank scandal, and immediately thereafter
resigned to contest the Lok Sabha election as a Congress(I)
candidate from Barpeta he never enjoyed a clean reputation. So,
it is not proper to make any generalization. People of impeccable
rectitude have to be handpicked. 187

100. Critical analysis of Articles 124, 217 and 124-A and

124-B leads to the position that the Executive Branch of
Government cannot push through an undeserving candidate
so long as at least two members representing the Judicial
Branch are united in their view as to unsuitability of that
candidate. Even one eminent person and a single judicial
member of NJAC could effectively stall entry of an unworthy
appointment.
187

Similarly, the judicial members also cannot

Sudhanshu Ranjan, Justice, Judocracy and Democracy in India : Boundaries and Breaches, p.185-186

push through persons of their choice unless at least one other

member belonging to the non-judicial block supports the
candidate proposed by them.
101. A democratic form of government is perhaps the best
institution invented for preservation of liberties.

At least that

is the belief of societies which adopt this model of governance.

True, there are many variants of democracy. Analysis of the
variants is outside the scope of this judgment.
constitutional

model,

primary

responsibility

Under any
to

preserve

liberties of the people is entrusted to the legislative and

executive branches.

Such entrustment is predicated on the

structural and empirical assumption that legislators chosen

periodically would strive to protect the liberties of their only
masters the people.
tandem.

This is for two reasons operating in

They are the obligation to discharge the trust

reposed and the fear of losing the glory of being the chosen
representative. An in built possibility in the system of periodic
elections.
102. To assume or assert that judiciary alone is concerned
with the preservation of liberties and does that job well, is an
assumption that is dogmatic, bereft of evidentiary basis and

historically disproved. Eminent constitution jurist and teacher

Laurence H. Tribe has the following to say in the context of the
American experience.
No one should assume that the Supreme Court need always
strike down laws and executive actions in order to protect our
liberties. On the contrary, sometimes the Court best guarantees
our rights by deferring to, rather than overruling, the political
branches. When the Supreme Court, from 1900 to 1937, struck
down dozens of child labor laws, minimum wage laws, working
condition regulations, and laws protecting workers; rights to
organize unions, on the ground that such rules infringed on
property rights and violated liberty of contract, the only rights
the Court really vindicated were the rights to be overworked,
underpaid, or unemployed. The Court eventually reversed itself
on these issues when it recognized that, in twentieth-century
America, such laws are not intrusions upon human freedom in
any meaningful sense, but are instead entirely reasonable and just
ways of combating economic subjugation.
In upholding a
minimum wage law in the watershed case of West Coast Hotel v.
Parrish, the Supreme Court concluded in 1937 that, in the light
of recent economic experience, such statutes were justified
because they prevent the exploitation of a class of workers in
ways detrimental to their health and well being.
Naturally, in this imperfect world, the Supreme Court has
not always guarded our liberties as jealously as it should.
During the First World War and again in the McCarthy era, the
Court often shrank from the affirmation of our rights to think and
speak as we believe. And in the war hysteria following bombing
of Pearl Harbor, the Supreme Court in Korematsu v. United
States upheld the imprisonment of thousands of Americans of
Japanese ancestry who had committed no crime. In light of such
lapses, some have argued that when it comes to protecting
fundamental rights, the Supreme Court is essentially redundant:
on most occasions the Congress and the President will adequately
safeguard our rights, and in those difficult times when the
political branches cannot be counted on, neither can the Court.188

103. Our experience is not dissimilar.

Judgments in A.K.

Gopalan189, Sankalchand190 and ADM Jabalpur191 (to mention a

188

Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11
A.K. Gopalan v. State of Madras AIR 1950 SC 27
190
Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193
191
ADM Jabalpur Vs. S.S. Shukla Etc. Etc. AIR 1976 SC 1207
189

few) should lead to an identical inference that in difficult times

when political branches cannot be counted upon, neither can
the Judiciary.

The point sought to be highlighted is that

judiciary 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 either in the constitutional history of the Nation or
any other and normatively fallacious apart from being contrary
to political theory.

104. I now deal with the submission that presence of the law
minister in the NJAC undermines independence of judiciary.
According to the petitioners, the presence of a member of the
Executive invariably has the effect of shifting the power
dynamics.

The presence of the Law Minister in the NJAC

which confers 1/6 of the voting power per se undermines the

independence of the judiciary. The submission is untenable.
The Executive with a vast administrative machinery under its

control

is

capable

of

making

enormous

and

valuable

contribution to the selection process. The objection is justified

to some extent on the trust deficit in the Executive Branch in
the constitutional sense192, to be a component of the NJAC.
The same logic applies a fortiari to the Judicial branch,
notwithstanding the belief that it is the least dangerous
branch. The Constituent Assembly emphatically declined to
repose exclusive trust even in the CJI.

To wholly eliminate

the Executive from the process of selection would be

inconsistent with the foundational premise that government in
a democracy is by chosen representatives of the people. Under
the scheme of our Constitution, the Executive is chartered
clear authority to administer critical areas such as defence of
the realm, internal security, maintenance of public order,
taxation, management of fiscal policies and a host of other
192

Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2 of Chapter 1 Approaches to
Constitutional Analysis - That all lawful power derives from the people and must be held in check to
preserve their freedom is the oldest and most central tenet of American constitutionalism. At the
outset, only a small number of explicit substantive limitations on the exercise of governmental authority
were thought essential; in the main, it was believed that personal freedom could be secured more effectively
by decentralization than by express command. From the thought of seventeenth century English liberals,
particularly, as elaborated in eighteenth century France by Montesquieu, the Constitutions framers had
derived the conviction that human rights could best be preserved by inaction and indirection-shielded
behind the lay of deliberately fragmented centers of countervailing power, in a vision almost
Newtonian in its inspiration. In this first model, the centralized accumulation of power in any man or
single group of men meant tyranny; the division and separation of powers, both vertically (along the
axis of federal, state and local authority) and horizontally (along the axis of legislative, executive and
judicial authority) meant liberty. It was thus essential that no department, branch, or level of
government be empowered to achieve dominance on its own. If the legislature would punish, it must
enlist the cooperation of the other branches-the executive to prosecute, the judicial to try and convict. So
too with each other center of governmental power; exercising the mix of functions delegated to it by the
people in the social compact that was the Constitution, each power center would remain dependent
upon the others for the final efficacy of the social designs.

aspects, touching every aspect of the administration of the

Nation and lives of its people. In this context, to hold that it
should be totally excluded from the process of appointing
judges would be wholly illogical and inconsistent with the
foundations of the theory of democracy and a doctrinal heresy.
Such exclusion has no parallel in any other democracy whose
models were examined by the Constituent Assembly and none
other were brought to our notice either. Established principles
of constitutional government, 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. The Attorney General is right in his
submission

that

exclusion

of

the

Executive

Branch

is

destructive of the basic feature of checks and balances a

fundamental principle in constitutional theory.

105. That takes me to the second provision which is under

challenge. Article 124A.(1)(d) which stipulates that the NJAC
should consist of two eminent persons193. Considerable debate
193

Article 124A. National Judicial Appointments Commission.- (1) There shall be a Commission to be
known as the National Judicial Appointments Commission consisting of the following, namelyxxx
xxx
xxx
xxx
(d)
two eminent persons to be nominated by the committee consisting of the Prime Minister,
the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such
Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the
People-Members.

took place during the course of hearing regarding validity of

this provision, the gist of which is captured in the judgment of
Khehar, J.

The attack is again on the ground that the

provision is utterly without guidance regarding the choice of

eminent persons.

Petitioners argued that (i) there could be

bipartisan compromise between the party in power and the

opposition, resulting in sharing the two slots earmarked for
eminent persons.

Such possibility would eventually enable

political parties to make appointments purely on political

considerations, thereby destroying independence of judiciary;
(ii) even assuming that the two eminent persons nominated are
absolute political neutrals, but are strangers to the judicial
system, they would not be able to make any meaningful
contribution to the selection process, as they would have no
resources to collect appropriate data relevant for the decision
making process; (iii) the possibility of two eminent persons
vetoing the candidature of a person approved unanimously by
the three judicial members of the NJAC itself is destructive of
the basic structure.

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.

106. Transparency
governance.

is

vital

factor

in

constitutional

This Court in innumerable cases noted that

constitutionalism demands rationality in every sphere of State

action. In the context of judicial proceedings, this Court held
in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra &
Anr.194:
20. .Public trial in open court is undoubtedly essential
for the healthy, objective and fair administration of justice. Trial held
subject to the public scrutiny and gaze naturally acts as a check against
judicial caprice or vagaries, and serves as a powerful instrument for
creating confidence of the public in the fairness, objectivity, and
impartiality of the administration of justice. Public confidence in the
administration of justice is of such great significance that there can be
no two opinions on the broad proposition that in discharging their
functions as judicial tribunals, courts must generally hear causes in
open and must permit the public admission to the court-room. As
Bentham has observed:
In the darkness of secrecy sinister interest, and evil in
every shape, have full swing. Only in proportion as publicity
has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice.
Publicity is the very soul of justice. It is the keenest spur to
exertion, and surest of all guards against improbity. It keeps the
Judge himself while trying under trial (in the sense that) the
security of securities is publicity.

Transparency is an aspect of rationality.

The need for

transparency is more in the case of appointment process.

Proceedings of the collegium were absolutely opaque and
inaccessible both to public and history, barring occasional
leaks. Ruma Pal , J. is on record Consensus within the collegium is sometimes resolved through a
trade-off resulting in dubious appointments with disastrous
194

AIR 1967 SC 1, para 20.

consequences for the litigants and the credibility of the judicial

system.
Besides, institutional independence has also been
compromised by growing sycophancy and lobbying within the
system.195

One beneficial purpose the induction of representatives of civil

society would hopefully serve is that it acts as a check on
unwholesome trade-offs within the collegium and incestuous
accommodations between Judicial and Executive branches.
To believe that members of the judiciary alone could bring
valuable inputs to the appointment process requires great
conceit and disrespect for the civil society. Iyer, J. cautioned 74. And when criteria for transfers of Judges are put
forward by the President which may upset past practices we must,
as democrats, remember Learned Hand who once said that the
spirit of liberty is the spirit which is not too sure that it is right.
That great Judge was fond of recalling Cromwells statement : I
beseech ye in the bowels of Christ, think that ye may be mistaken.
He told a Senate Committee. I should like to have that written
over the portals of every church, every school and every
court-house, any may I say, of every legislative body in the
United States. I should like to have every court begin I
beseech ye in the bowels of Christ, think that we may be
mistaken. (Yale Law Journal : Vol.71 : 1961, November part).196

[emphasis supplied]

Replace transfers and President with appointments and

Parliament and Iyer, Js admonition is custom made to answer
the objections (ii) and (iii) of the petitioners.

195

An Independent Judiciary speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde
Memorial Lecture on 10.11.2011
196

Sankalchand case (supra) para 78.

107. There is a possibility that the apprehension expressed by

the petitioners might come true. The possibility of abuse of a
power conferred by the Constitution is no ground for denying
the authority to confer such power.

Bachawat, J. in I.C.

Golak Nath (supra) opined as follows:

235. It is said that the Parliament is abusing its power of
amendment by making too many frequent changes. If the
Parliament has the power to make the amendments, the choice of
making any particular amendment must be left to it. Questions of
policy cannot be debated in this Court. The possibility of abuse of a
power is not the test of its existence. In Webb v. Outrim [1907]
A.C. 81, Lord Hobhouse said, "If they find that on the due
construction of the Act a legislative power falls within S. 92, it
would be quite wrong of them to deny its existence because by
some possibility it may of be abused, or limit the range which
otherwise would be open to the Dominion Parliament". With
reference to the doctrine of implied prohibition against the exercise
of power ascertained in accordance with ordinary rules of
construction, Knox C.J., in the Amalgamated Society of Engineers
v. The Adelaide Steamship Company Limited 129 C.L.R. 151, said,
"It means the necessity of protection against the aggression of some
outside and possibly hostile body. It is based on distrust, lest
powers, if once conceded to the least degree, might be abused to
the point of destruction. But possible abuse of power is no reason
in British law for limiting the natural force of the language creating
them".

However, it was a dissenting opinion. But this Court in I.R.

Coelho (supra), Sabharwal, J. speaking for a unanimous Bench
of nine Judges, held as follows:
76.
It is also contended that the power to pack up laws in the
Ninth Schedule in absence of any indicia in Article 31B has been
abused and that abuse is likely to continue. It is submitted that the
Ninth Schedule which commenced with only 13 enactments has
now a list of 284 enactments. The validity of Article 31B is not in
question before us. Further, mere possibility of abuse is not a
relevant test to determine the validity of a provision. The
people, through the Constitution, have vested the power to make
laws in their representatives through Parliament in the same

manner in which they have entrusted the responsibility to adjudge,

interpret and construe law and the Constitution including its
limitation in the judiciary. We, therefore, cannot make any
assumption about the alleged abuse of the power.

[emphasis supplied]
In the final analysis, all power could be misused including
judicial power. The remedy is not to deny grant of power but
to structure it so as to eliminate the potential for abuse. The
power to nominate two eminent persons is conferred upon
three high constitutional functionaries the Prime Minister,
the Leader of the Opposition and the CJI.

It is elementary

political knowledge that the Prime Minister and the Leader of

Opposition would always have conflicting political interests
and would rarely agree upon any issue.

Nonetheless,

possibility of a bipartisan compromise cannot be ruled out.

Though, the presence of CJI in the Committee should normally
be a strong deterrent, the possibility of the CJI failing to
perceive a political compromise or helplessness in the event of
such compromise, cannot be ruled out.

108. It is incontestable that nomination of eminent persons is

not immune to judicial review.

There is thus possibility of

delay in functioning of NJAC and inevitably the process of

appointments to CONSTITUTIONAL COURTS.

It is, therefore,

essential that there must be an entrenched process of

nomination of eminent persons which eliminates risk of
possible bipartisan compromises.

The only conceivable

curative is to incorporate another tier of scrutiny in the

process of nomination. In my considered view, the following
safeguard

would

bring

this

process

within

permissible

contours of the 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

eventually be nominated as eminent members of the NJAC.
Such procedure would still preserve the choice of eminent
persons primarily with the Committee contemplated under
Article 124-A, while incorporating sufficient safeguard against
possible abuse of the power by the Committee.

109. The third provision whose validity is under attack is

Article 124 B(c), which obligates NJAC to ensure that the person
recommended is of ability and integrity.

The challenge is on the ground

that the AMENDMENT does not lay down any guidelines to be

followed by the NJAC for assessing ability and integrity. Even
in the absence of any express declaration, such an obligation
is

inherent

and

implied,

having

regard

responsibilities entrusted to the NJAC.

an abundanti cautela.

to

functional

The precision is only

Perhaps prompted by certain bad

experiences of the past, both pre and post Second Judges case.

110. Having regard to the nature (i) of the document by which

such obligation is created; (ii) the composition of the body
(NJAC) upon which the obligation is cast; and (iii) the nature of
the assignment, the argument is required to be rejected. NJAC
is a constitutional authority created to perform an important
constitutional function. Its charter is the Constitution itself.
Notwithstanding,

the

prolixity

of

our

Constitution,

constitution is not expected or required to spell out every

minute detail regarding administration of the State.

In the

context of the American Constitution, it is said that the

Constitution is an intentionally incomplete, often deliberately indeterminate structure for
the

participatory

Constitutions

evolution

of

political

enumerate

ideals

and

structural

governmental

practices .

arrangements

of

Government and specify the outer limits of powers of each

organ of the State. Within such limits, how the various organs
of the State ought to discharge their allocated functions is a
matter of detail, either to be provided by law or convention. All
written democratic Constitutions are full of abstract moral
commands!

111. Three members of the highest judicial body of this

country, a member of the Union Cabinet and two eminent
persons chosen by a Committee consisting of three exalted
office holders under the Constitution constitute the NJAC. To
suggest that the NJAC requires detailed guidelines expressly
spelt out in the text of the Constitution amounts to judicially
mandating inflexible standards for constitutional drafting. The
task of expounding a Constitution is crucially different from that of construing a statute.

112. Provisions of the Constitution are not to be interpreted in

a broad and liberal way. They are not to be construed in the
manner in which a piece of subordinate legislation or, for that
matter, even a statute is required to be interpreted. This Court
in S.R. Bommai had an occasion to consider this question.
Dealing with the authority of the President under Article 356 of
the Constitution of India and whether the exercise of such
authority by the President is amenable to judicial review on the

parameters enunciated by this Court in Barium Chemicals Ltd.

v. Company Law Board, AIR 1967 SC 295, rejected the
submission.
35. The test laid down by this Court in Barium
Chemicals Ltd. v. Company Law Board and subsequent decisions
for adjudging the validity of administrative action can have no
application for testing the satisfaction of the President under Article
356. It must be remembered that the power conferred by Article
356 is of an extraordinary nature to be exercised in grave
emergencies and, therefore, the exercise of such power cannot be
equated to the power exercised in administrative law field and
cannot, therefore, be tested by the same yardstick. .
255. .. The exercise of the power under Article 356 is a
constitutional exercise of the power. The normal subjective
satisfaction of an administrative decision on objective basis applied
by the courts to administrative decisions by subordinate officers or
quasi-judicial or subordinate legislation does not apply to the
decision of the President under Article 356.
373. .. So far as the approach adopted by this Court in
Barium Chemicals6 is concerned, it is a decision concerning
subjective satisfaction of an authority created by a statute. The
principles evolved then cannot ipso facto be extended to the
exercise of a constitutional power under Article 356. Having regard
to the fact that this is a high constitutional power exercised by the
highest constitutional functionary of the Nation, it may not be
appropriate to adopt the tests applicable in the case of action taken
by statutory or administrative authorities nor at any rate, in their
entirety.

113. Such a test is relevant only for bodies created by statutes

and

subordinate

constitutional

legislation.

body

is

only

The

functioning

disciplined

by

of

any

appropriate

legislation. Constitution does not lay down any guidelines for

the functioning of the President and Prime Minister nor the
Governors

or

the

Chief

Ministers.

Performance

of

constitutional duties entrusted to them is structured by

legislation and constitutional culture. The provisions of the
Constitution cannot be read like a last will and testament lest it becomes one.
Even prior to the AMENDMENT, the constitutional text had no
express guidelines for the President and the CJI to follow. It is
however nobodys case that the pre-AMENDMENT selection
scenario conferred any uncanalised discretion and therefore
resulted in some undesirable judicial appointments. If in
practice,

occasionally

concerns

of

public

personal
interest

preferences
resulting

in

outweighed
undesirable

appointments, it is not because of constitutional silences in

this area but because of

shortcomings in the ethical

standards of the participants in the selection process. 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 that the AMENDMENT is destructive of the basic
structure

since

it

does

not

lay

down

any

guidelines

tantamounts to holding that the design of the Constitution as

originally enacted is defective!

114. The next submission which is required to be dealt is that

Section 6(6) of the ACT which stipulates that if any two
members of the NJAC do not agree with the recommendation
proposed by the NJAC, the NJAC shall not recommend such
candidate. In the opinion of the petitioners, it is a provision
which confers veto power on two members of the NJAC to
scuttle proposals. It is submitted that though the provision is
facially innocuous, in practice, this would result in giving the
Executive a power of veto to reject the proposals made by the
three judicial members of the NJAC.

Such a provision is

violative of the basic structure of the Constitution. It is further

argued

that

though

the

provision

is

not

part

of

the

AMENDMENT, since the AMENDMENT and the ACT are made

simultaneously and the ACT being complementary to the

AMENDMENT, the ACT must be understood to be a part of the

design of the AMENDMENT and, therefore, Section 6(6) is

required to be struck down on the ground it is violative of the
basic structure of the Constitution.

115. The respondents submitted that Section 6(6) of the ACT

only

prescribes

special

majority

for

sanctifying

the

recommendations of NJAC. Prescription of special majorities

in law is a known phenomenon.

The Constitution itself

prescribes special majorities in certain cases.

For example,

Article 368(2) prescribes a special majority for amending the

Constitution.

Similarly, Article 124(4) prescribes a special

majority for the impeachment of judges of the CONSTITUTIONAL

COURTS.

It is argued that the petitioners presumption that

only Government could take advantage of the prescription

under Section 6(6) is totally baseless. In a given case it may
happen that two judicial members of the NJAC can turn down
the proposal of the NJAC.

Learned Attorney General also

submitted that such a prescription of a special majority is also

a part of the regime created under Second Judges case and,
therefore, there is nothing constitutionally objectionable in
such a prescription.

116. The question whether the content of Section 6(6) confers

a power of veto or prescribes a special majority is only of
semantic relevance.
the same.

Whatever name we call it, the result is

The two members of the NJAC can override the

opinion of the other four and stall the recommendation. I do

not find anything inherently illegal about such a prescription.
For the purpose of the present case, I do not even want to

embark upon an enquiry whether the constitutional fascination for the

basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp .

For my part, I would like to examine the question in greater

detail before answering the question.

There are conflicting

views of this Court on this proposition. 197 In my opinion, such

an enquiry is not required in this case in view of the majority
decision that the AMENDMENT is unsustainable. Some of the
learned counsel for the petitioners placed reliance on S.R.
Bommai case as a justification for the invocation of the
doctrine of basic structure.

117. Only to indicate but not determine conclusively the scope

of the enquiry to answer the submission of the petitioners, I
examine S.R. Bommai case.

The question before this Court

was whether the action of the President in invoking the powers

under Article 356 was constitutionally tenable?

In other

words, whether the material on which the President acted was

constitutionally relevant for the invocation of powers under
Article 356.

The submission of the petitioners before this

Court was that the exercise of powers under Article 356 was
inconsistent with two features of the Constitution, i.e. the
197

Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 166, Krishna Iyer, J.
20. The question of basic structure being breached cannot arise when we examine the vires of an
ordinary legislation as distinguished from a constitutional amendment.

democracy and federalism, therefore, destructive of the basic

structure, as the Presidential action under Article 356 resulted
in the super session of the democratically elected State
Governments by the Union Government.

118. Repelling the contention, this Court held that secularism

is also one of the basic features of the Constitution.

The

conscious inaction of the various State Governments and

consequential failure to prevent certain activities which in the
opinion of the petitioners (endorsed by this court by the
judgment) would ultimately result in the destruction of the
secular fabric of the Constitution has certainly a relevant
consideration for the exercise of extraordinary powers vested in
the President under Article 356.

Because Article 356

obligates the President to resort to the action contemplated

thereunder only if the President is satisfied that a situation has arisen in
which the Government of the State cannot be carried on in accordance with the provisions
of the Constitution.

Failure of the State Government to prevent

activities which are bound to destroy the communal harmony

between

people

following

different

religions

is

certainly

inconsistent with the constitutional obligation of the State to

upheld the Constitution of which secularism is a basic feature.

S.R. Bommai case is no authority for the proposition that the

validity of a legislation is amenable to judicial review on the
ground of the basic structure doctrine.
119. The fiasco created in Dinakaran case (supra) and Shanti
Bhushan case (supra) would justify the participation of the
members of the civil society in the process to eliminate from
the selection process the maladies involved in the process
pointed out by Ruma Pal, J. The abovementioned two are not
the only cases where the system failed. It is a matter of public
record that in the last 20 years, after the advent of the
collegium system, number of recommendations made by the
collegia of High Courts came to be rejected by the collegium of
the Supreme Court. There are also cases where the collegium
of this Court quickly retraced its steps having rejected the
recommendations of a particular name made by the High
Court collegium giving scope for a great deal of speculation as
to the factors which must have weighed with the collegium to
make such a quick volteface.

Such decisions may be justified

in some cases and may not in other cases.

accountability in this regard.

There is no

The records are absolutely

beyond the reach of any person including the judges of this

Court who are not lucky enough to become the Chief Justice of
India.

Such a state of affairs does not either enhance the

credibility of the institution or good for the people of this

country.

120. For all the abovementioned reasons, I would upheld the

AMENDMENT.

However, in view of the majority decision, I do

not see any useful purpose in examining the constitutionality

of the ACT.

121. Only an independent and efficient judicial system can

create confidence in the society which it serves. The ever
increasing pendency of matters before various CONSTITUTIONAL
COURTS of this country is clearly not a certificate of efficiency.

The frequency with which the residuary jurisdiction of this

Court under Article 136 is invoked seeking correction of errors
committed by the High Courts, some of which are trivial and
some profound coupled with bewildering number of conflicting
decisions rendered by the various benches of this Court only
indicate that a comprehensive reform of the system is overdue.
Selection process of the Judges to the CONSTITUTIONAL COURTS
is only one of the aspect of such reforms. An attempt in that
direction, unfortunately, failed to secure the approval of this

Court leaving this Court with the sole responsibility and

exclusive accountability of the efficiency of the legal system. I
only part with this case recollecting the words of Macaulay
reform that you may preserve198. Future alone can tell whether I am
rightly reminded of those words or not.

..J.
( J. Chelameswar )
New Delhi;
October 16, 2015.

198

Thomas Babington Macaulays address on 2nd March 1831 in the House of Commons on Parliamentary
Reforms