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IN THE SUPREME COURT OF INDIA


CIVIL WRIT JURISDICTION
WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association

Petitioner

v.

Union of India

... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA


PART II

Contents

D. INDEPENDENCE OF THE JUDICIARY AND CHECKS AND BALANCES ............ 1


I.

Independence of the judiciary forms part of the basic structure and is an

essential feature of the Constitution ..................................................... 1


a. The concept of independence of the judiciary under the Constitution of
India has a wide set of features only one of which is the method of
appointment of judges of the higher judiciary ....................................... 2
b. In no aspect of judicial functioning is judicial independence to be
protected as an absolutist ideal ........................................................ 6
II. Separation of Powers and Checks and Balances also form part of the Basic
Features of the Constitution .............................................................. 16
a. The Constituent Assembly Debates demonstrate the intention of the
framers to ensure checks and balances and prevent unaccountable exercises of
judicial power apart from ensuring judicial independence ....................... 16
b. Separation of Powers is a basic feature of the Constitution which has been
held to include checks and balances .................................................. 16
III. When interpreting a constitutional amendment against the basic structure,
judicial independence, separation of powers and democracy have to be balanced
..26
E. PRIMACY OF THE JUDICIARY IN APPOINTMENT OF JUDGES TO THE SUPREME
COURT AND HIGH COURTS IS NOT A BASIC FEATURE OF THE CONSTITUTION ... 32
I.

The Second Judges Case requires reconsideration .............................. 33

II. Assuming it is held that the Second Judges Case does not require
reconsideration, it has no relevance for assessing the constitutional validity of
the 99th Amendment ....................................................................... 36
III. In any event, primacy of the judiciary cannot be a basic feature of the
Constitution ................................................................................. 41

a. Primacy of the judiciary and the concept of a judicial collegium to


recommend appointment of judges cannot be culled out from the provisions of
the Constitution as originally enacted. ............................................... 41
b. Primacy of the judiciary was a judicially devised method to secure judicial
independence responding to certain pressures on the judiciary at the time ... 45
c. There is no necessary connection between judicial independence and
primacy of judges in appointment .................................................... 52
d. Judicial independence without primacy of the judiciary in appointments
was the express intention of the drafters of the Constitution manifested in the
early working of the Indian higher judiciary ......................................... 55

D. INDEPENDENCE OF THE JUDICIARY AND CHECKS AND BALANCES


I.

Independence of the judiciary forms part of the basic structure and is an


essential feature of the Constitution
1. It is the petitioners contention that the 99th Amendment violates the
independence of the judiciary - a basic feature of the Constitution. To
meet this contention, it is necessary to understand what independence
of the judiciary connotes.
2. Independence of the judiciary has been recognised as a basic feature of
this Constitution. The context in which it is so recognised can be
understood from the extracts of the judgments below.
3. In Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1, Ray CJI held
(at p. 35):
22..The basic feature of separation of powers with the role of
independence of Judiciary is changed by denying jurisdiction of this
Court to test the validity of the election. The essential feature of
democracy will be destroyed if power is conceded to Parliament to
declare the elections void according to law under which it has been
held to be valid.
4. In the Second Judges case, Pandian J. held (at p. 522):
50.The essence of the above deliberation and discussion is that the
independence of judiciary is the livewire of our judicial system and
if that wire is snapped, the dooms day of judiciary will not be far
off.
Pandian J. also held (at p. 523):
56.Indisputably, this concept of independence of judiciary which is
inextricably linked and connected with the constitutional process
related to the functioning of judiciary is a fixed-star in our
constitutional constellation and its voice centres around the

philosophy of the Constitution. The basic postulate of this concept is


to have a more effective judicial system with its full vigour and
vitality so as to secure and strengthen the imperative confidence of
the people in the administration of justice.
Kuldip Singh J. also held (at p. 647):
331.The powers and functioning of the three wings of the
Government have been precisely defined and demarcated under the
Constitution. Independence of judiciary is the basic feature of the
Constitution.
5. In Sub-Committee on Judicial Accountability v. Union of India
(1991) 4 SCC 699, BC Ray J. held (at p. 719):
16.Rule of law is a basic feature of the Constitution which
permeates the whole of the constitutional fabric and is an integral
part of the constitutional structure. Independence of the judiciary is
an essential attribute of rule of law.
6. In addition to the above-mentioned cases, the Supreme Court has in a
number of other cases, such as RK Jain v. Union of India and Ors.
(1993) 4 SCC 119; All India Judges Association and Ors. v. Union of
India and Ors. (1993) 4 SCC 288; Jasbir Singh v. State of Punjab
(2006) 8 SCC 294;Central Public Information Officer, Supreme Court
of India v. Subhash Chandra Aggrawal (2011) 1 SCC 496; Union of
India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC
1, identified independence of the judiciary as part of the basic
structure of the Constitution.
a. The concept of independence of the judiciary under the Constitution of
India has a wide set of features only one of which is the method of
appointment of judges of the higher judiciary

7. There are various enunciations of the independence of the judiciary


and its relevance to the appointments process in the First Judges
case. Bhagwati J. (as he then was) acknowledged in the context of
appointments that the principle of independence of judiciary is a part
of the basic structure of the Constitution. Further, he observed (at p.
222-223):
27.The concept of independence of the judiciary is a noble concept
which inspires the constitutional scheme and constitutes the
foundation on which rests the edifice of our democratic polity. If
there is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law and under the
Constitution, it is the judiciary which is entrusted with the task of
keeping every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective...
8. A contrary view was taken by Venkataramaiah J. in the First Judges
case (at pp. 791 and 793-794):
1033.As a part of this very contention it is urged that the Executive
should have no voice at all in the matter of appointment of Judges
of the superior courts in India as the independence of the judiciary
which is a basic feature of the Constitution would be in serious
jeopardy if the executive can interfere with the process of their
appointment, It is difficult to hold that merely because the power of
appointment is with the executive, the independence of the
judiciary would become impaired. The true principle is that, after
such appointment the executive should have no scope to interfere
with the work of a Judge.
1042.In India we have adopted the procedure contained in Article
217(1) of the Constitution for the appointment of Judges of the High
Courts. We do need anything intrinsically wrong in this method. The
process of consultation prescribed by Article 217(1) acts as a
sufficient safeguard against the appointment of undesirable persona
as Judges of the High Courts. Our experience has been that the
independence of the judiciary has not in any way been impaired by
reason of the president appointing Judges on the advice of his
Council of Ministers after following the process of consultation
prescribed in Article 217(1).This method appears to have been
adopted so that the appointments of Judges may have ultimately the
sanction of the people whom the Council of Ministers represent in a

parliamentary form of Government. In that way only the Judges may


be called people's Judges. If the appointments of Judges are to be
made on the basis of the recommendations of Judges only then they
will be Judges' Judges and such appointments may not fit into the
scheme of popular democracy.
9. Explaining the concept of judicial independence, Raveendran J. in
Union of India v. Madras Bar Association (2010) 11 SCC 1 held (at p.
35):
46. Independence is not the freedom for Judges to do what they
like. It is the independence of judicial thought. It is the freedom
from interference and pressures which provides the judicial
atmosphere where he can work with absolute commitment to the
cause of justice and constitutional values.
The contours of judicial independence were further laid out by
Raveendran J. as follows:
46. Its existence depends however not only on philosophical, ethical
or moral aspects but also upon several mundane things - security in
tenure, freedom from ordinary monetary worries, freedom from
influences and pressures within (from others in the Judiciary) and
without (from the Executive).
10. The independence of the judiciary, as a basic feature is ensured
through a framework of Constitutional provisions, statutes, principles
and practices. Chandrachud J. (as he then was) in Union of India v.
Sankalchand H. Sheth (1977) 4 SCC 193 observed (at p. 216):
13. Having envisaged that the judiciary, which ought to act as a
bastion of the rights and freedom of the people, must be immune
from the influence and interference of the executive, the
Constituent Assembly gave to that concept a concrete form by
making various provisions to secure and safeguard the independence
of the judiciary. Article 50 of the Constitution, which contains a
Directive Principle of State Policy, provides that the State shall take
steps to separate the judiciary from the executive in the public
services of the State. The form of oath prescribed by clause VIII,
Third Schedule of the Constitution for a Judge or a Chief Justice of
the High Court requires him to affirm that he will perform the
duties of his office without fear or favour, affection or ill will.

The words without fear or favour were added by the Constitution


to the oath prescribed for Judges and Chief Justices of High Courts
by the Fourth Schedule, clause 4 of the Government of India Act,
1935. By Article 202(3)(d), expenditure in respect of the salaries and
allowances of High Court Judges is charged on the Consolidated Fund
of each State. The pensions payable to High Court Judges are
charged on the Consolidated Fund of India under Article
112(3)(d)(iii). By virtue of Article 203(1), the, salaries and
allowances are not subject to the vote of the Legislative Assembly
and, by virtue of Article 113(1), the pensions are not subject to the
vote of the Parliament. The High Court Judges, by Article 221(1), are
entitled to be paid the salaries which are specified in the Second
Schedule to the Constitution. Evidently, such salaries cannot be
varied without an amendment of the Constitution. Further, under
the proviso to Article 221(2), neither the allowances of a Judge nor
his rights in respect of leave of absence or pension can be varied to
his disadvantage after his appointment. The relevant part of Article
211 provides that no discussion shall take place in the legislature of
a State with respect to the conduct of any Judge of a High Court in
the discharge of his duties. Article 215 makes every High Court a
Court of record and confers upon it all the powers of such a court
including the power to punish for contempt of itself. Judges of the
High Court, by Article 217(1), hold their tenure until they attain the
age of 62 and not at the pleasure of the President. Appointments of
officers and servants of a High Court are to be made under Article
229(1) by the Chief Justice of the High Court or such other Judge or
officer of the Court as he may direct. By sub-clause (2) of that
article, the conditions of service of officers and servants of a High
Court shall, subject to the provisions of any law made by the
legislature of the State, be such as may be prescribed by rules made
by the Chief Justice of the Court or by some other Judge or officer
of the Court authorised by the Chief Justice. Under clause (3), the
administrative expenses of the High Court, including all salaries,
allowances and pensions payable to or in respect of the officers and
servants of the Court, are to be charged upon the Consolidated Fund
of the State.
11. In the context of impeachment, it was held by Ramaswami J. in
Krishna Swami v. Union of India (1992) 4 SCC 605 (at pp. 649-650):
66..Rule of law as basic feature permeates the entire
constitutional structure. Independence of the judiciary is sine qua
non for the efficacy of the rule of law.....The independence of the
judiciary in the scheme is essential to establish real parliamentary
democracy and maintenance of rule of law....Independence of
judiciary thus constitutes the cornerstone and the foundation on
which our democratic polity itself is to rest and work on sound
principles.

12. Post-tenure benefits for judges have also been identified as an aspect
which requires protection to ensure judicial independence. In
Secretary, Ministry of Health and Family Welfare, Government of
Maharashtra v. S.C. Malte and Ors. (2012) 13 SCC 118, Swatanter
Kumar J. observed (at pp. 134-135):
33.Arbitrariness in the power of the State to make unfair
conditions of service for the sitting or the former Judges of the High
Court would tantamount to putting a kind of pressure on the
judiciary.The exercise of subordinate legislative power, which by
necessary implication, entrenches upon the independence of
judiciary, would have to be decided on the touchstone of it being
violative or otherwise, of the basic structure of the Constitution.
13. It is thus submitted that multiple features and aspects of the
Constitution are relevant in understanding how the independence of
the judiciary is sought to be protected in India. It is not limited to the
method of appointment of judges alone.
b. In no aspect of judicial functioning is judicial independence to be
protected as an absolutist ideal
14. From the note titled Historical Background to Constitutional Provisions
pertaining to the Higher Judiciary submitted to the Court on 5th May,
2015 (Annexure III), the following inferences regarding the intent of
the framers as far as the judiciary is concerned, are clear:
a. Independence of the judiciary was a key value to be secured in
the Constitution insofar as the judiciary was concerned.
b. However, absolute judicial independence was not sought and
all amendments that tilted the balance too far in favour of judicial
independence were negatived.

c. Judicial independence was sought to be balanced against


accountability of judges and the judiciary, through several provisions
that vested power in Parliament or the President, either in terms of
appointment, or removal or salaries which are equally crucial in the
overall scheme pertaining to judicial functioning.
d. Such provisions were designed to ensure checks and balances
in the operation of the judiciary and its constitutional function.
15. In appreciating both the scope and degree of the independence of the
judiciary deemed necessary in India, we must place it within the
framework of the following questions derived from the working of the
constitutional provisions and case law:
i.

Whose independence is being protected?

ii.

From whom is the independence being protected?

iii.

How is the independence being safeguarded?

iv.

What are the matters in which such independence is being


safeguarded?

v.

Why is the independence of the judiciary being safeguarded

so?

16. The next few paragraphs elaborate on what this framework means and
applies it in the context of India:
i.

Whose independence is being protected?


17. In speaking of the independence of the judiciary in the context of the
Constitution, it is necessary to separate the independence of an
individual who functions as a judge and the independence of the
institution of the judiciary as a whole. It is undeniable that both have
to be protected in the context of our Constitutional scheme.

18. The independence of the individual judge requires that he/she enjoy
the protections necessary to ensure that he/she can carry out his/her
constitutional functions as a judge in a free and fair manner, without
bias or the threat of repercussions.
19. Institutional independence requires the institutions of the judiciary,
the Supreme Court and the High Courts to maintain their independence
as institutions in the performance of their Constitutional duties.
20. In the First Judges case, Fazal Ali J. (at p. 411) accepted as correct
the contention that:
334..[i]ndependence of judiciary comprises two fundamental and
indispensable elements, viz., (1) independence of judiciary as an
organ and as one of the three functionaries of the State, and (2)
independence of the individual Judge.
21. This distinction has been recognised by Kuldip Singh J. in the Second
Judges case when he quoted with approval (at pp. 647-648) Le Dain J.
of the Supreme Court of Canada in Valente v. The Queen [(1985) 2 SCR
673 (Can)]:
332.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.
22. Institutional independence of the judiciary is therefore distinct from
the functional independence of the judge who is part of such a
judiciary. Both require protection on an equal footing.

ii.

From whom is the independence being protected?


23. The independence of the judiciary is protected, not only from the
interference of the Executive, but also the involvement of any third
party, which affects impartiality. This goes to the very nature of the
judiciary as the organ of state which is the neutral, impartial arbiter of
disputes between parties.
24. Balakrishnan J. (as he then was) in Jasbir Singh v. State of Punjab
(2006) 8 SCC 294 held (at p. 301):
14.The independence of the judiciary has been considered as a part
of the basic structure of the Constitution and such independence is
postulated not only from the Executive, but also from all other
sources of pressure.

25. In the First Judges case, Bhagwati J. (as he then was) held (at p.
221):
27..[i]t is necessary to remind ourselves that the concept of
independence of the judiciary is not limited only to independence
from executive pressure or influence but it is a much wider concept
which takes within its sweep independence from many other
pressures and prejudices. It has many dimensions, namely,
fearlessness of other power centres, economic or political, and
freedom from prejudices acquired and nourished by the class to
which the Judges belong.

iii.

How is the independence being safeguarded?


26. The independence of the judiciary is safeguarded in a number of ways
through constitutional provisions, statutes, conventions and practices.
In addition to the framework protecting the individual judges

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independence, there also exists a separate framework adequately


protecting the independence of the judiciary as an institution. This
protection extends not just to the Supreme Court and High Courts, but
to the District Courts as well.
27. While appointments are one aspect of the functioning of Judges, the
Constitution of India also protects the functional independence of
judges in numerous other ways. This was pointed out in the discussion
of the Constituent Assembly Debates pertaining to the judiciary (See
Annexure III).
28. Further,

judicial

self-restraint

in

matters

beyond

the

Courts

competence is one further way in which the independence of the


judiciary is maintained. As Sudershan Reddy J. observed in Divine
Retreat Centre v. State of Kerala (2008) 3 SCC 542 (at p. 570):

70. Institutions own reputation is a priceless treasure. History


teaches us that the independence of the judiciary is jeopardised
when courts become embroiled in the passions of the day and assume
primary responsibility to resolve the issues which are otherwise not
entrusted to them by adopting procedures which are otherwise not
known.
71. There is heavy duty cast upon the constitutional courts to
protect themselves from the onslaught unleashed by unscrupulous
litigants masquerading as public interest litigants. The individual
Judges ought not to entertain communications and letters personally
addressed to them and initiate action on the judicial side based on
such communication so as to avoid embarrassment; that all
communications and petitions invoking the jurisdiction of the Court
must be addressed to the entire Court, that is to say, the Chief
Justice and his companion Judges. The individual letters, if any,
addressed to a particular Judge are required to be placed before the
Chief Justice for consideration as to the proposed action on such
petitions. Each Judge cannot decide for himself as to what

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communication should be entertained for setting the law in motion


be it in PIL or in any jurisdiction.

iv. What are the matters in which such independence is being


safeguarded?
29. The primary matter in which the independence must be safeguarded is
decisional independence i.e. safeguarding individual judges from
threats, temptations, reprisals and other extraneous pressures, which
can affect judicial decision-making. This is the most basic level of
independence that a judge should enjoy in decision-making.
30. Judges also need to be behaviourally independent. Thus judges are also
public servants for the purposes of both the Code of Criminal
Procedure, 1973 and the Prevention of Corruption Act, 1988 as held by
this Honble Court in K. Veeraswami v Union of India (1991) 3 SCC
655. They cannot be prosecuted without the prior sanction of the
President acting in consultation with the Chief Justice of India or other
judges of the Supreme Court as the case may be.
31. With respect to the institutional protections enjoyed by the judiciary,
apart from the day-to-day functioning aspects mentioned above in
relation to the staff and the expenses of the Supreme Court and the
High Court, the Constitution also vests the power to exercise
administrative

and

disciplinary

control

over

judges

(short

of

impeachment) in the Court itself.

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32. In respect of the District Courts, it is the High Court which exercises
the power of superintendence over such courts (Article 227). The High
Court is also mandatorily consulted by the Governor of the State before
making the appointment of District Judges (Article 233(1)).
iv.

Why is the independence of the judiciary being safeguarded so?


33. The importance of independence of the judiciary is almost always
taken for granted, but it is well worth repeating the underlying
purposes for which this principle has been made a cornerstone of
modern democracy.
34. The reasons why judicial independence has been sought also vary.
While in the Second Judges case, Punchhi J. (as he then was) in his
dissenting opinion observed that Independence of the judiciary is an
essential attribute of Rule of Law, and is part of the basic structure of
the Constitution (para 502), in Union of India v. R Gandhi (2010) 11
SCC 1, Raveendran J. traced its relevance to the need for impartiality
by saying that independence is the lifeblood of Judiciary. Without
independence, impartiality cannot thrive. (para 46).
35. The importance of judicial independence for the separation of powers
also comes across from the observation made in Pareena Swarup v.
Union of India (2008) 14 SCC 107 by Sathasivam J. (as he then was)(at
p. 111):
10. .The Constitution guarantees free and independent judiciary
and the constitutional scheme of separation of powers can be easily
and seriously undermined, if the legislatures were to divest the

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regular courts of their jurisdiction in all matters, and entrust the


same to the newly created Tribunals which are not entitled to
protection similar to the constitutional protection afforded to the
regular courts.

36. In Brij Mohan Lal v. Union of India (2012) 6 SCC 502, Swatanter
Kumar J. held (at pp. 547-548):
105. The independence of the Indian judiciary is one of the most
significant features of the Constitution. Any policy or decision of the
Government which would undermine or destroy the independence of
the judiciary would not only be opposed to public policy but would
also impinge upon the basic structure of the Constitution. It has to
be clearly understood that the State policies should neither defeat
nor cause impediment in discharge of judicial functions. To preserve
the doctrine of separation of powers, it is necessary that the
provisions falling in the domain of judicial field are discharged by
the judiciary and that too, effectively.

37. Apart from its function as a neutral arbiter of disputes between


citizens, the judiciary also performs the role of a neutral arbiter in
disputes between citizen and State. In this respect, it cannot be seen
to be acting as an organ of the State (which it is) when the State is
before it as a litigant. While each country has had a distinct history in
the context of which the principle of judicial independence has been
articulated and applied, the common thread running through them all
is the need for the judiciary to act as a check on behalf of citizens
against the power of the State. (See Alexander Hamilton, James
Madison and John Jay, The Federalist (Harvard University Press 2009),
509-511).

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38. This Honble Court has also recognised the judiciarys role to act as a
guardian of the rights of the citizens against the State. An observation
to this effect was made by Bhagwati J. in the First Judges case(at p.
221):
27. .The judiciary stands between the citizen and the State as a
bulwark against executive excesses and misuse or abuse of power by
the executive.

39. In Union of India v. Madras Bar Association (2010) 11 SCC 1,


Raveendran J. brought about the necessary connection between the
need for impartiality in adjudication and the rule of law for the
protection of the rights of the citizens (at p. 56):
102..[r]ule of law has several facets, one of which is that disputes
of citizens will be decided by Judges who are independent and
impartial; and that disputes as to legality of acts of the Government
will be decided by Judges who are independent of the Executive.
40. The sequitur from the analysis thus far is that the notion of the
independence of the judiciary is a structural phenomenon in the
context of the Constitution that consists of a network of provisions,
laws, practices and principles which have been adhered to, not just by
the legislature but also by the judiciary itself to uphold and maintain
its independence. It is thus submitted that independence of the
judiciary, whether functional independence for judges or institutional
independence of the judiciary is located in a number of features not
limited to appointment alone. Further it is not a monolithic concept
that mandates insulation of the judiciary in all its functions but

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operates as part of a larger framework of separation of powers and rule


of law. As regards functional independence of judges, the relevant
features are:
a. Protection for fixed terms and conditions of service.
b. Rules of recusal in cases of bias or conflict of interest along with a
general code of conduct on acceptable behaviour or judges.
c. Disciplinary powers being vested with the judiciary itself.
d. Removal only on the basis of a detailed enquiry and on vote by
Parliament.
e. Requirement to abstain from the practice of law post retirement.
41. Insofar as institutional independence is concerned, the features of
independence of the judiciary include:
a. Involvement in the appointments process of judges, whether to
the higher or the lower judiciary.
b. Administrative and disciplinary control of the lower judiciary.
c. Administrative control of the Court.
d. Primary power to engage and dispense with administrative staff
necessary for the functioning of the Court.
e. Expenses and costs of administration beyond Executive or
Legislative interference.
f. Judicial restraint in the exercise of jurisdiction.

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II.

Separation of Powers and Checks and Balances also form part of the
Basic Features of the Constitution

a. The Constituent Assembly Debates demonstrate the intention of the


framers to ensure checks and balances and prevent unaccountable
exercises of judicial power apart from ensuring judicial independence
42. In attempting to understand the basic framework underlying the checks
and

balances

in

the

Constitution

and

the

need

to

prevent

unaccountable exercise of powers by the judiciary, it is necessary to


examine the Constituent Assembly Debates which shed light on this
aspect. This has already been submitted to this Honble Court on
5thMay, 2015 and may be found at Annexure III. These Debates show
the coexistence of judicial independence and checks and balances in
Chapter IV of Part V and Chapter V of Part VI of the Constitution.
b. Separation of Powers is a basic feature of the Constitution which has
been held to include checks and balances
43. To understand the need for and the meaning of checks and balances,
reference may be made to the Federalist Papers where the most
cogent treatment of this concept as an essential aspect of separation
of powers may be found. (Federalist No. 47-51, Alexander Hamilton,
James Madison and John Jay, The Federalist, Cambridge MA: Belknap
Press, 2009) (See Annexure IV).
44. James Madison, writing in Federalist No. 47, stressed the need to keep
organs of government, including the judiciary, separate and distinct

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from each other. In fact he agreed with critics who had commented
that his proposed scheme of separation was insufficient by agreeing
with the basis of their objection, i.e. that no political truth other
than the separation of powers, was of greater intrinsic value.
(Federalist Paper No. 47 in Federalist Papers, 316). At the same time
he defended his proposed scheme by arguing that nothing in the
concept of separation of powers required absolute separation between
the legislature, executive and judiciary. Instead, he was of the view
that (Federalist Paper No. 48 in Federalist Papers 324):
Unless these departments be so far connected and blended with
each other as to give to each a constitutional control over the
others, the degree of separation which the maxim requires, as
essential to a free government, can never in practice be duly
maintained.

45. For Madison, maintaining a balance of political power was crucial. But
constant clashes between the King and Parliament in Britain, a byproduct of the intensely blended Westminster model of government,
made him, and other founding fathers of the American Constitution,
rightfully wary of inter-connections between personnel in agencies of
government. Thus such balance would have to be achieved without any
blending in terms of institutional personnel though each organ would
have a key stake in the others functioning. (For more on the Federalist
Papers and its relevance to judicial appointments in India, see Arghya
Sengupta, Independence and Accountability of the Indian Higher
Judiciary D.Phil. in Law Thesis, University of Oxford, July 2014, at pp.
201-224).

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46. This Honble Court has also agreed with the line of thinking in the
Federalist Papers in respect of the Independence of the judiciary and
separation of powers in IR Coelho v State of Tamil Nadu (2007) 2 SCC
1 where Sabharwal CJI held (at p. 86):
63. The separation of powers between Legislature, Executive and
the Judiciary constitutes basic structure, has been found in
Kesavananda Bharati case [(1973) 4 SCC 225] by the majority. Later,
it was reiterated in Indira Gandhi case [1975 Supp SCC 1]. A large
number of judgments have reiterated that the separation of powers
is one of the basic features of the Constitution.
64. In fact, it was settled centuries ago that for preservation of
liberty and prevention of tyranny it is absolutely essential to vest
separate powers in three different organs. In The Federalist Nos. 47,
48, and 51, James Madison details how a separation of powers
preserves liberty and prevents tyranny. In The Federalist No. 47,
Madison discusses Montesquieu's treatment of the separation of
powers in Spirit of Laws, (Book XI, Chapter 6). There, Montesquieu
writes,
When the legislative and executive powers are united in the same
person, or in the same body of Magistrates, there can be no liberty
Again, there is no liberty, if the judicial power be not separated
from the legislative and executive.
Madison points out that Montesquieu did not feel that different
branches could not have overlapping functions, but rather that the
power of one department of Government should not be entirely in
the hands of another department of Government.

Further, it was also pertinently observed (at p. 79):


43.The principle of constitutionalism advocates a check and balance
model of the separation of powers; it requires a diffusion of powers,
necessitating different independent centres of decision-making.

47. In India, separation of powers is considered part of the basic structure


of the Constitution and the same has been held by this Honble Court.
In Kesavananda Bharati Sikri CJI at para 292 identified separation of

19

powers between the legislature, the executive and the judiciary as


one of the basic features of the Constitution.
48. This Honble Court has recognised the existence of a system of checks
and balances prevailing within the scheme of the Constitution in a
number of decisions. The Court has also recognised that the principle
of separation of powers encompasses varied virtues such as mutual
checks and balances and accountability of action for all branches of the
government. In State of Bihar v. Bihar Distillery Ltd. (1997) 2 SCC
453, Jeevan Reddy J. observed (at p. 466):
17.It cannot also be forgotten that our Constitution recognises and
gives effect to the concept of equality between the three wings of
the State and the concept of checks and balances inherent in such
scheme.

49. In Kesavananda Bharati, Shelat and Grover JJ. held (at pp. 452-453):
577.There is ample evidence in the Constitution itself to indicate
that it creates a system of checks and balances by reason of which
powers are so distributed that none of the three organs it sets up
can become so pre-dominant as to disable the others from exercising
and discharging powers and functions entrusted to them.

50. The Supreme Court further propounded on the need and existence of
the system of checks and balances. In Indira Nehru Gandhi v. Raj
Narain 1975 Supp SCC 1 Chandrachud J. (as he then was) held (at pp.
260-261):
687. The reason of this restraint is not that the Indian Constitution
recognizes any rigid separation of powers. Plainly, it does not. The
reason is that the concentration of powers in any one organ may, by
upsetting that fine balance between the three organs, destroy the

20

fundamental premises of a democratic government to which we are


pledged. Sir Carleton K. Alien says in his Law and Orders (1965 Edn.,
p. 8) that neither in Montesquieus analysis nor in Lockes are the
governmental powers conceived as the familiar trinity of legislative,
executive and judicial powers. Montesquieus separation took the
form not of impassable barriers and unalterable frontiers, but of
mutual restraints, or of what afterwards came to be known as
checks and balances (p. 10).
688..no Constitution can survive without a conscious adherence to
its fine checks and balances. Just as courts ought not to enter into
problems entwined in the political thicket. Parliament must also
respect the preserve of the courts. The principle of separation of
powers is a principle of restraint which has in it the precept, innate
in the prudence of self-preservation (even if history has not
repeatedly brought it home), that discretion is the better part of
valour [Julius Stone: Social Dimensions of Law and Justice, (1966) p.
668].

51. Bhagwati J. (as he then was) held in Minerva Mills v. Union of


India(1980) 3 SCC 625 (at pp. 676-677):
86. The Constitution has devised a structure of power relationship
with checks and balances and limits are placed on the powers of
every authority or instrumentality under the Constitution. Every
organ of the State, be it the executive or the legislature or the
judiciary, derives its authority from the Constitution and it has to
act within the limits of such authority.

52. While explaining the functioning of the three organs of the government
inter se, the Supreme Court in Asif Hameed and Ors. v. State of
Jammu and Kashmir and Ors.1989 Supp (2) SCC 364 speaking
through Kuldip Singh J. held (at pp. 373-374):
17. Although the doctrine of separation of powers has not been
recognised under the Constitution in its absolute rigidity but the
Constitution makers have meticulously defined the functions of
various organs of the State. Legislature, executive and judiciary have
to function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned to another.
The Constitution trusts to the judgment of these organs to function

21

and exercise their discretion by strictly following the procedure


prescribed therein. The functioning of democracy depends upon the
strength and independence of each of its organs. Legislature and
executive, the two facets of peoples will, they have all the powers
including that of finance. Judiciary has no power over sword or the
purse nonetheless it has power to ensure that the aforesaid two
main organs of State function within the constitutional limits. It is
the sentinel of democracy.

53. In State of Uttar Pradesh v. Jeet S. Bisht (2007) 6 SCC 586, Sinha J.
observed (at pp. 617-618):
78. Separation of powers in one sense is a limit on active
jurisdiction of each organ. But it has another deeper and more
relevant purpose: to act as check and balance over the activities of
other organs. Thereby the active jurisdiction of the organ is not
challenged; nevertheless there are methods of prodding to
communicate the institution of its excesses and shortfall in duty.
Constitutional mandate sets the dynamics of this communication
between the organs of polity. Therefore, it is suggested to not
understand separation of powers as operating in vacuum. Separation
of powers doctrine has been reinvented in modern times.

54. In the context of separating the judiciary from the executive, this
Honble Court has also cautioned against the uncanalised power of a
single branch of the government. In the context of the independence of
the judiciary in Union of India v. Sankalchand H. Sheth (1977) 4 SCC
193, Krishna Iyer J. noted (at pp.262-263):
91......It is not as if judicial independence is an absolute end
overriding the peoples well being. Nothing is more certain in a
modern society, declared the U.S. Supreme Court at mid-century,
than the principle that there are no absolutesTo idealise
independence of the Judges beyond the profile of the Constitution is
to self-colonise our countrys life-style. And, Benjamin Cardozo has,
with beautiful bluntness, expressed how the sub-conscious forces and
social philosophies of Judges hold their minds captive:
Judges cannot escape that current any more than other mortals. All
their lives, forces, which they do not recognise and cannot name,

22

have been tugging at them inherited instincts, traditional beliefs,


acquired convictions; and the resultant is an outlook on life, a
conception of social needs, a sense, in James phrase, of the total
push and pressure of the cosmos which, when reasons are nicely
balanced, must determine where the choice shall fall. [Nature of the
Judicial Process, p. 12]

55. This Honble Court has also acknowledged the existence of the
principle of separation of powers in the context of accountability of
each branch of the government. In Bhim Singh v. Union of India
(2010) 5 SCC 538, Sathasivam J. (as he then was), held (at pp. 572 and
575):
77..The concept of separation of powers, even though not found
in any particular constitutional provision, is inherent in the polity
the Constitution has adopted. The aim of separation of powers is to
achieve the maximum extent of accountability of each branch of the
Government.
78. While understanding this concept, two aspects must be borne in
mind. One, that separation of powers is an essential feature of the
Constitution. Two, that in modern governance, a strict separation is
neither possible, nor desirable. Nevertheless, till this principle of
accountability is preserved, there is no violation of separation of
powers. We arrive at the same conclusion when we assess the
position within the constitutional text. The Constitution does not
prohibit overlap of functions, but in fact provides for some overlap
as a parliamentary democracy. But what it prohibits is such exercise
of function of the other branch which results in wresting away of the
regime of constitutional accountability.
87. Thus, the test for the violation of separation of powers must be
precisely this. A law would be violative of separation of powers not
if it results in some overlap of functions of different branches of the
State, but if it takes over an essential function of the other branch
leading to lapse in constitutional accountability.

56. The importance of the judiciary retaining public confidence, especially


in the manner in which appointments to the higher judiciary are
carried out thus must be seen both in the context of independence of

23

the judiciary as also the need for checks and balances on it. In K.
Veeraswami v. Union of India (1991) 3 SCC 655 this Honble Court
held as follows (at pp. 705 and 750-751):
53. The judiciary has no power of the purse or the sword. It
survives only by public confidence and it is important to the stability
of the society that the confidence of the public is not shaken. The
Judge whose character is clouded and whose standards of morality
and rectitude are in doubt may not have the judicial independence
and may not command confidence of the public. He must voluntarily
withdraw from the judicial work and administration.
122It is, therefore, time that all the constitutional functionaries
involved in the process of appointment of superior Judges should be
fully alive to the serious implications of their constitutional
obligation and be zealous in its discharge in order to ensure that no
doubtful appointment can be made even if sometime a good
appointment does not go through.

57. As this Court has pointed out, judicial independence is not absolute in
all respects and must be balanced with public interest. Krishna Iyer J.
in Union of India v. Sankalchand H. Sheth (1977) 4 SCC 193 drew a
connection between judicial independence and public interest by
observing (at p. 263):
92....[t]he independence principle will have to be harmonised
with the cause of compelling public interest. Indeed, the
independence of the judiciary is itself a necessitous desideratum of
public interest and so interference with it is impermissible except
where other considerations of public interest are so strong, and so
exercised as not to militate seriously against the free flow of public
justice. Such a balanced blend is the happy solution of a delicate,
complex, subtle, yet challenging issue which bears on human rights
and human justice.

58. Based on the above, it is submitted that the concept of separation of


powers represents various virtues, and not just a strict separation of
the branches of government. Most significantly, it envisages an

24

independent judiciary existing within a system of checks and balances


between various branches pervading the entire constitutional scheme.
Thus when the validity of the 99th Amendment against the basic
structure is to be assessed it must be in light of the various facets of
the basic structure and not merely against an absolutist conception of
judicial independence as has been contended by the petitioners.
59. In addition to the independence of judiciary and separation of powers,
democracy has also been held to be one of the basic features of the
Constitution. This Honble Court in Indira Nehru Gandhi v. Raj Narain
1975 Supp SCC 1 held (at p. 254) that The contention that
democracy

is

an

essential

feature

of

the

Constitution

is

unassailable (para 672). Furthermore, this Honble Court in Manoj


Narula v. Union of India(2014) 9 SCC 1 observed, per Misra J. (at p.
20):
1. There is no shadow of doubt that democracy in India is a
product of the rule of law and aspires to establish an egalitarian
social order. It is not only a political philosophy but also an
embodiment of constitutional philosophy.

60. It is also humbly submitted that democracy, inter alia, envisages


openness and plurality of views. In Secretary, Ministry of Information
and Broadcasting v. Cricket Association of Bengal (1995) 2 SCC 161,
Sawant J. (for himself and Mohan J.) observed (at p. 195):
16. Democracy is a government by the people via open discussion.
The democratic form of government itself demands from its citizens
an active and intelligent participation in the affairs of the
community. The public discussion with people's participation is a

25

basic feature and a rational process of democracy


distinguishes it from all other forms of government.

which

Further, this Honble Court held (at p. 300):


201(1)(b).A successful democracy posits an aware citizenry.
Diversity of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all issues
touching them.
Clearly, diversity of opinions and plurality of views are general facets
essential to a democracy. The working of a democracy envisages
participation from a wide range of interests in the process of decisionmaking.
61. In the context of appointment of judges, this plurality should be read
as plurality of voices from a broad range of persons, and not just
plurality of judges. Such plurality has been intended as a check on
arbitrary power exercisable by any one individual. Verma J. (as he then
was) observed in the Second Judges case (at p. 699):
468. The rule of law envisages the area of discretion to be the
minimum, requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks
against arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable in a
satisfactory manner.

62. Pandian J. also observed (at p. 574) in the Second Judges case the
importance of plurality and diversity while recognising the right of the
Central as well as the State Government to suggest names of suitable

26

candidates for judgeship, to the Chief Justice of India and the Chief
Justice of the State respectively:
216(3). It is essential and vital for the establishment of real
participatory democracy that all sections and classes of people, be
they backward classes or Scheduled Castes or Scheduled Tribes or
minorities or women, should be afforded equal opportunity so that
the judicial administration is also participated in by the outstanding
and meritorious candidates belonging to all sections of the society
and not by any selective or insular group.

63. It is humbly submitted that an independent judiciary serves as a


prerequisite for a flourishing democracy. Democracy encompasses the
requirement of plurality of views and diversity of opinions. The 99th
Amendment makes an attempt to ensure such plurality in the
appointments process by requiring the presence of the Chief Justice of
India, two seniormost puisne Judges of the Supreme Court, the Law
Minister and two eminent persons on the NJAC. Such a diverse
composition would ensure plurality, which is intended to act as a check
against

arbitrary

decision-making,

while

maintaining

judicial

independence. Thus, the 99th Amendment ensures a democratic process


for the appointment of judges, by ensuring that only one branch of the
government is not solely responsible for making appointments.

III.

When interpreting a constitutional amendment against the basic


structure,

judicial

independence,

separation

of

powers

and

democracy have to be balanced

27

64. It is respectfully submitted that when interpreting the Constitution as


well as the various facets of the basic structure the Court must
consider the text and the structure in their entirety and not in a unidimensional manner. This Honble Court in Sahara India Real Estate
Corpn. Ltd. v. SEBI (2012) 10 SCC 603, speaking through Kapadia CJI
held (at p. 717-718):
25.It must not be forgotten that no single value, no matter how
exalted, can bear the full burden of upholding a democratic system
of government. Underlying our constitutional system are a number of
important values, all of which help to guarantee our liberties, but in
ways which sometimes conflict. Under our Constitution, probably, no
values are absolute. All important values, therefore, must be
qualified and balanced against other important, and often
competing, values. This process of definition, qualification and
balancing is as much required with respect to the value of freedom
of expression as it is for other values. Consequently, free speech, in
appropriate cases, has got to correlate with fair trial. It also follows
that in an appropriate case one right (say freedom of expression)
may have to yield to the other right like right to a fair trial.
(emphasis supplied)

65. The above passage echoes Professor Laurence Tribe, who in his book
On Reading the Constitution (co-authored with Michael C. Dorf,
Harvard University Press, 1991), has said:
When all of the Constitutions supposed unities are exposed to
scrutiny, criticisms of its inconsistency with various readers
sweeping visions of what it ought to be become considerably less
impressive. Not all need be reducible to a single theme.
Inconsistency even inconsistency with democracy is hardly earthshattering.

66. This has led to a technique of constitutional interpretation known in


American constitutional law as holism. The above principle has been

28

elaborated in a number of academic journals and articles. Its essence is


captured by the statement below:
Holistic methods share the premise that the meaning of the
constitutional text is not exhausted by whatever concepts an isolated
phrase connotes to the reader [because] further guidance can often
be gleaned from the balance of the constitutional text. (Michael C.
Dorf, Equal Protection Incorporation, 88 VA L Rev 951, 952 (2002).)

67. This has also been followed in Germany, a country whose Federal
Constitutional Court has, like India, recognised substantive limitations
on the power to amend the Constitution. In the Southwest
case(BVerfGE 1,14, 1951) where such limitations were first recognised,
the Court held,(as translated and paraphrased by Justice Gerhard
Leibholz, who was an Associate Justice of the Court):
When making its decision in the legal dispute, the Court felt the
need to set forth a number of fundamental tenets. They may be of
particular interest to other countries with special constitutional
authorities. One of the first tenets laid down by the Court, for
example, states that the Court is concerned with determining only
the legality, not the expediency of a contested rule. It stresses
explicitly that the Court is not to decide whether the legislature has
put the discretionary power which it has been granted to proper use
in individual cases, although it adds that the extent to which the
legislature may exercise its discretionary power is in itself a legal
question which comes under the jurisdiction of the Court if the
limits of this power are considered to be defined by the
Constitution.
Another tenet of fundamental importance formulated by the Court
states that no single constitutional provision may be taken out of its
context and interpreted by itself. The Court holds that each
constitutional clause is in a definite relationship with all other
clauses, and that together they form an entity. It considers certain
constitutional principles and basic concepts to have emerged from
the whole of the Basic Law to which other constitutional regulations
are subordinate. The Court even goes so far as to acknowledge the
existence of a higher law which transcends positive law and to which
it is necessary to hold responsible both the legislature and the

29

constituent power. In the opinion of the Court, therefore, every


constitutional provision must always be interpreted in such a way as
to render it compatible with the fundamental principles of the
Constitution and the intentions of its authors. And in answer to the
question as to which parts of the Bonn Basic Law are to be
considered fundamental, the Court mentions three: the democratic
principle, the federal principle, and the principle of the rule of law
(Rechtsstaat.) [Gerhard Leibholz, The Federal Constitutional Court
in Germany and the Southwest Case The American Political Science
Review 46(3) 723 (1952) at 725-26]

68. The technique of holism as a means of constitutional interpretation


has been explained with specific reference to judicial Independence
and accountability by Saikrishna Prakash and Steven D. Smith (both
Professors at the University of San Diego) in an article in the Yale Law
Journal (116 Yale Law Journal 159 (2006):
The Framers (of the US Constitution) were concerned about
accountability, to be sure -but they were also concerned about judicial
independence and a whole host of other values. These values did, and
do, compete with each other to some extent. So the Framers devised a
system that inevitably involved balancing and tradeoffs among
competing values and commitments. They could have adopted a
system designed to maximize accountability (by making all officials,
including judges, subject to annual reelection perhaps), or they could
have adopted a system that would maximize judicial independence (by
not making judges impeachable at all). But, in fact, the Framers were
sensible enough to do neither of these things.
Consequently, appealing to one among many competing values and
commitments in a holistic way and then construing a provision to
further that value is no way to respect the constitutional design. If we
want to be genuinely holistic, we must look at the particular tradeoffs
the Framers made as embodied in the various constitutional provisions,
and do our best to figure out what those particular provisions meant.

69. It is respectfully submitted that the technique of holism in


constitutional interpretation must be adopted by this Honble Court in
the instant case. Accordingly, the provisions pertaining to Chapter IV of

30

Part V (The Union Judiciary) and Chapter V of Part VI (The High


Courts in the States) of the Constitution need to be read as a whole
rather than construing Article 124 and Article 217 in isolation. Further,
while assessing whether the 99th Amendment against the touchstone of
the basic structure, all its relevant facets, in this case the
independence of the judiciary, checks and balances, democracy and
separation of powers need to be considered as a whole.
70. Reading the Constitution as a whole and without falling into the trap of
one-dimensional holism, it is clear that judicial independence was a
key value the framers of the Constitution considered basic to our
constitutional scheme. This has been well-accepted in a catena of
decisions of the Supreme Court, which have been mentioned above.
However, from the constitutional scheme, it is equally evident that
three other values underpin the vesting of power generally and judicial
power in specific accountability, democracy and checks and balances.
This is discernible from the Constituent Assembly Debates as well as
precedents cited above. Further, checks and balances has been held to
be part of the basic structure of the Constitution as a necessary
corollary of separation of powers.
71. On the basis of the aforementioned precedents and texts cited above,
it is submitted that:
a. The principle of independence of judiciary is a basic feature of
the Constitution.

31

b. The principle of separation of powers and its corollary of checks


and balances, as well as democracy are basic features of the
Constitution.
c. Independence of judiciary, separation of powers and democracy
are all relevant values to be secured in the process of appointing
judges to the higher judiciary.
d. None of these values is absolute and the provisions of the 99th
Amendment optimally secure all of these values in a manner that
does not abrogate or destroy the basic features of the
Constitution, as has been demonstrated presently.

32

E. PRIMACY OF THE JUDICIARY IN APPOINTMENT OF JUDGES TO THE


SUPREME COURT AND HIGH COURTS IS NOT A BASIC FEATURE OF THE
CONSTITUTION
72. It has been submitted by the petitioners that the 99th Amendment is
violative of the independence of the judiciary. This is specifically
alleged on the ground that:
In the matter of appointment of Judges to the High Courts and the
Supreme Court primacy of the Higher Judiciary must be secured and
protected(first affirmed in Supreme Court Advocates-on-Record
Association vs. Union of India: 1993 (4) SCC 441 at page 522 para 56);
(Bench of Nine Judges); re-affirmed in Special Reference No. 1 of
1998 (Nine Judges) reported in 1998 (7) SCC 739) (unanimous)
[Ground C(iii)- Writ Petition No. 13 of 2015 filed by Supreme Court
Advocates-on-Record Association]

On this basis, it is contended,


The Independence of the Judiciary is an integral part of the Basic
Structure of the Constitution of India and Independence of the
Judiciary, and inter alia, includes the necessity to eliminate political
influence even at the stage of appointment of a Judge, the executive
element in the appointment process being minimal. The Constitution
(99th Amendment) Act of 2014 as passed by the two houses of
Parliament, by providing for a National Judicial Appointments
Commission, consisting of the Chief Justice of India; and two other
senior Judges of the Supreme Court next to the Chief Justice of
India; the Union Minister in charge of Law and Justice; and two
eminent persons to be nominated by a committee (consisting of the
Prime Minister, Leader of Opposition or leader of single largest party
in Lok Sabha and the Chief Justice of India), takes away the primacy
of the collective opinion of the Chief Justice of India and the two
senior most Judges of the Supreme Court of India next to the Chief
Justice of India, i.e. even if all three senior most judges of the
Supreme Court of India collectively recommend an appointee, the
appointment is enabled to be suspended by a majority of three nonJudge members. (emphasis supplied) [Ground D- Writ Petition No. 13
of 2015 filed by Supreme Court Advocates-on-Record Association]

33

73. It is respectfully submitted that the concept of primacy of the judiciary


in the matter of appointments came about only pursuant to the Second
Judges Case. The said case requires reconsideration. Even if not
reconsidered, it is submitted that the Second Judges case and the
Third Judges case have no relevance to the question of assessing the
constitutional validity of the 99th Amendment, as they read in the
requirement of primacy in the context of the consultative process laid
down in the original Article 124(2) and Article 217(1). The said
provisions having been amended, the judgments have no relevance.
74. In any event, primacy of the higher judiciary in the matter of
appointment of judges to the higher judiciary is not a basic feature of
the Constitution. Further, it has no necessary connection with judicial
independence as is demonstrated by the fact of the existence of
independent judiciaries in several jurisdictions, including India at the
inception of the Constitution in 1950, where no primacy of the
judiciary in appointments has been provided for.
I.

The Second Judges Case requires reconsideration


75. Primacy of the judiciary in judicial appointments was laid down as law
in the Second Judges case. Verma J. speaking for the majority held
(at p. 693):
451.The primary aim must be to reach an agreed decision taking
into account the views of all the consultees, giving the greatest
weight to the opinion of the Chief Justice of India who, as earlier
stated, is best suited to know the worth of the appointee. No
question of primacy would arise when the decision is reached in this
manner by consensus, without any difference of opinion. However, if

34

conflicting opinions emerge at the end of the process, then only the
question of giving primacy to the opinion of any of the consultees
arises. For reason indicated earlier, primacy to the executive is
negatived by the historical change and the nature of functions
required to be performed by each. The primacy must, therefore, lie
in the final opinion of the Chief Justice of India, unless for very good
reasons known to the executive and disclosed to the Chief Justice of
India, that appointment is not considered to be suitable.

Again, it was held (at pp. 701-702):


478(5).The opinion of the Chief Justice of India, for the purpose of
Articles 124(2) and 217(1), so given has primacy in the matter of all
appointments; and no appointment can be made by the President
under these provisions to the Supreme Court and the High Courts,
unless it is in conformity with the final opinion of the Chief Justice
of India, formed in the manner indicated.
76. That primacy was not accorded to the individual opinion of the Chief
Justice of India but the views of the judiciary as a whole symbolised by
the Chief Justice was clarified in Para 478,
This opinion has to be formed in a pragmatic manner and past
practice based on convention is a safe guide. In matters relating to
appointments in the Supreme Court, the opinion given by the
Chief Justice of India in the consultative process has to be formed
taking into account the views of the two seniormost judges of the
Supreme Court. The Chief Justice of India is also expected to
ascertain the views of the seniormost Judge of the Supreme Court
whose opinion is likely to be significant in adjudging the suitability
of the candidate, by reason of the fact that he has come from the
same High Court, or otherwise. Article 124(2) is an indication that
ascertainment of the views of some other Judges of the Supreme
Court is requisite. The object underlying Article 124(2) is achieved
in this manner as the Chief Justice of India consults them for the
formation of his opinion. This provision in Article 124(2) is the
basis for the existing convention which requires the Chief Justice
of India to consult some Judges of the Supreme Court before
making his recommendation. This ensures that the opinion of the
Chief Justice of India is not merely his individual opinion, but an
opinion formed collectively by a body of men at the apex level in
the judiciary.

35

77. These were summarised in the conclusion as follows,


(3) In the event of conflicting opinions by the constitutional
functionaries, the opinion of the judiciary symbolised by the view of
the Chief Justice of India and formed in the manner indicated, has
primacy.
(4) No appointment of any Judge to the Supreme Court or any High
Court can be made, unless it is in conformity with the opinion of the
Chief Justice of India.

78. The Third Judges case upheld this requirement of primacy and
clarified the working of the consultative process within the judiciary,
necessary for the view of the judiciary symbolised by the Chief Justice
of India to have legal validity. It held:
15. We think it necessary to make clear at the outset the
distinction that follows. The opinion of the Chief Justice of India
which has primacy in the matter of recommendations for
appointment to the Supreme Court has to be formed in consultation
with a collegium of Judges. Presently, and for a long time now, that
collegium consists of the two seniormost puisne Judges of the
Supreme Court. In making a decision as to whom that collegium
should recommend, it takes into account the view that are elicited
by the Chief Justice of India from the seniormost Judge of the
Supreme Court who comes from the same High Court as the person
proposed to be recommended. It also takes into account the views of
other Judges of the Supreme Court or the Chief Justices or Judges of
the High Court or, indeed, members of the Bar who may also have
been asked by the Chief Justice of India or on his behalf. The
principal objective of the collegium is to ensure that the best
available talent is brought to the Supreme Court bench. The Chief
Justice of India and the seniormost puisne Judges, by reason of their
long tenures on the Supreme Court, are best fitted to achieve this
objective. They can assess the comparative worth of possible
appointees by reason of the fact that their judgments would have
been the subject matter of petitions for special leave to appeal and
appeals. Even where the person under consideration is a member of
the Bar, he would have frequently appeared before them. In

36

assessing comparative worth as aforestated, the collegium would


have the benefit of the inputs provided by those whose views have
been sought. The distinction, therefore, is between the Judges of
the Supreme Court who decide, along with the Chief Justice of India,
who should be recommended for appointment to the Supreme Court
and the judges of the Supreme Court and others who are asked to
express their views about the suitability of a possible nominee for
such appointment.
16. With this in mind, what has to be considered is whether the
size of the collegium that makes the recommendation should be
increased. Having regard to the terms of Article 124(2), as analysed
in the majority judgment in the second Judges case, as also the
precedent set by the then Chief Justice of India, as set out earlier,
and having regard to the objective aforestated, we think it is
desirable that the collegium should consist of the Chief Justice of
India and the four seniormost puisne Judges of the Supreme Court.

79. It has already been humbly submitted before this Honble Court that
the decision in the Second Judges caseand consequently the Third
Judges case require reconsideration on these points by a larger
Bench. In any event, the need for an authoritative pronouncement on
the points of law in a matter of such constitutional importance requires
reference to a larger Bench. The reasons for seeking such reference to
a larger Bench may be found in Annexure V. Hence the instant case
should be referred to a larger Bench for consideration.

II.

Assuming it is held that the Second Judges Case does not require
reconsideration, it has no relevance for assessing the constitutional
validity of the 99th Amendment
80. It is humbly submitted that a judgment which interprets a certain
provision of an enactment ceases to be a precedent for that

37

interpretation when the said provision is amended or substituted. In


the instant case, it is pertinent to note that the Second Judges case
and the Third Judges case rendered an interpretation of Article 124
of the Constitution. However the 99th Amendment has amended Article
124

and

inserted

Article

124A

thereafter,

which

leaves

the

interpretation hitherto placed on the unamended Article 124 irrelevant


for the purposes of testing the validity of the 99th Amendment.
81. It must be noted that though the 99th Amendment is not a validating
amendment in terms, it is akin to one for the purposes of effacing the
precedential value of the Second Judges case and the Third Judges
case. Hence the judgments explaining the loss of the binding and
precedential value of judgments after a validating amendment would
be relevant.
82. In this regard, a Constitution bench of this Honble Court in Shri
Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2
SCC 283 speaking through Hidayatullah CJI, held as follows (at pp. 286287):
4.. A courts decision must always bind unless the conditions on
which it is based are so fundamentally altered that the decision
could not have been given in the altered circumstances. (Emphasis
supplied)

83. A similar observation was made by Ray CJI in Indira Nehru Gandhi v.
Shri Raj Narain 1975 Supp SCC 1 (at p. 40):
39. The effect of validation is to change the law so as to alter the
basis of any judgment, which might have been given on the basis of

38

old law and thus make the judgment ineffective. A formal


declaration that the judgment rendered under the old Act is void, is
not necessary

84. Again in K. Sankaran Nair v. Devaki Amma Malathy Amma (1996) 11


SCC 428 this Honble Court held (at p. 433):
5...It is now well settled by a catena of decisions of this Court
that unless the legislature by enacting a competent legislative
provision retrospectively removes the substratum or foundation of
any judgment of a competent court the said judgment would remain
bindingand operative and in the absence of such a legislative
exercise by a competent legislature the attempt to upset the binding
effect of such judgments rendered against the parties would remain
an incompetent and forbidden exercise which could be dubbed as an
abortive attempt to legislatively overrule binding decisions of
courts. (Emphasis supplied)

85. It is submitted that the sequitur to the aforesaid dicta is that


subsequent to a validating amendment, the judgment in question
would cease to be a binding precedent, without a declaration to that
effect.
86. In P.S. Mahal v. Union of India (1984) 4 SCC 545 this Honble Court
after considering the judgment in Shri Prithvi Cotton Mills Ltd. v.
Broach Borough Municipality (supra) held that only a declaratory
judgment can be overcome by a legislature through a validating
amendment (at p. 570):
12...It is difficult to see how this decision given in the context of a
validating statute can be of any help to the respondents. Here the
decision in A.K. Subraman case [(1975) 1 SCC 3191975 SCC (L&S) 36 :
(1975) 2 SCR 979 : 1975 Lab IC 254] which is relied upon by the
petitioners is not a mere declaratory judgment holding an impost or
tax to be invalid, so that a validation statute can remove the defect
pointed out by that judgment and validate such impost or tax.But it

39

is a decision giving effect to the right of the Executive Engineers


promoted from the grade of Assistant Engineers to have their inter
se seniority with Executive Engineers promoted from the grade of
Assistant Executive Engineers determined on the basis of rule of
length of continuous officiation by issue of a writ directing the
Government of India to amend and revise the seniority list in
accordance with such rule of seniority [Emphasis supplied]
87. Since the Second Judges case and the Third Judges case are
declaratory judgments on the original Article 124, the foundation of
the judgment has been removed and hence cannot be relied on in their
entirety.
88. This Honble Court has likened the result of such an amendment to be
that of wiping out the judgment in question in the case of
Bhubaneshwar Singh v. Union of India (1994) 6 SCC 77 where it held
(at p. 83):
11. From time to time controversy has arisen as to whether the
effect of judicial pronouncements of the High Court or the Supreme
Court can be wiped out by amending the legislation with
retrospective effect. Many such Amending Acts are called Validating
Acts, validating the action taken under the particular enactments by
removing the defect in the statute retrospectively because of which
the statute or the part of it had been declared ultra vires. Such
exercise has been held by this Court as not to amount to
encroachment on the judicial power of the courts. The exercise of
rendering ineffective the judgments or orders of competent courts
by changing the very basis by legislation is a well-known device of
validating legislation. This Court has repeatedly pointed out that
such validating legislation which removes the cause of the invalidity
cannot be considered to be an encroachment on judicial power. At
the same time, any action in exercise of the power under any
enactment which has been declared to be invalid by a court cannot
be made valid by a Validating Act by merely saying so unless the
defect which has been pointed out by the court is removed with
retrospective effect. The validating legislation must remove the
cause of invalidity. Till such defect or the lack of authority pointed
out by the court under a statute is removed by the subsequent
enactment with retrospective effect, the binding nature of the
judgment of the court cannot be ignored. (Emphasis supplied)

40

89. In Easland Combines v. CCE (2003) 3 SCC 410 this Honble Court
explained that the reasoning of a judgment would not survive after a
change in legislation (at p. 419):
14. ..This amendment changes the entire basis or foundation of
the judgment rendered in Cotspun case [(1999) 7 SCC 633 : (1999)
113 ELT 353] . The entire discussion in the said case is based upon
Rule 173-B which dealt with classification list and that the assessee
must determine the excise duty which is payable by him on the goods
which he intends to remove in accordance with the approved
classification list. The Court based its reasoning by holding (at SCC p.
637, para 13) Rule 10 does not deal with classification lists or relate
to the reopening of approved classification lists. That is exclusively
provided for by Rule 173-B. The Court further held that the levy of
excise duty on the basis of approved classification list is not shortlevy and the differential duty cannot be recovered on the ground
that it is a short-levy and Rule 10 then has no application. After the
amendment of law, this reasoning of the judgment would no longer
survive. .

90. In S.T. Sadiq v. State of Kerala(2015) 4 SCC 400, Nariman J. held (at
p. 412):
13. It is settled law by a catena of decisions of this Court that the
legislature cannot directly annul a judgment of a court. The
legislative function consists in making law (see Article 245 of the
Constitution) and not in declaring what the law shall be
(see Article 141 of the Constitution). If the legislature were at
liberty to annul judgments of courts, the ghost of bills of attainder
will revisit us to enable legislatures to pass legislative judgments on
matters which are inter partes. Interestingly, in England, the last
such bill of attainder passing a legislative judgment [R. v. Fenwick,
(1696) How 13 St Tr 538] against a man called Fenwick was passed as
far back as in 1696. A century later, the US Constitution expressly
outlawed bills of attainder (see Article 1 Section 9).
14. It is for this reason that our Constitution permits a legislature to
make laws retrospectively which may alter the law as it stood when
a decision was arrived at. It is in this limited circumstance that a
legislature may alter the very basis of a decision given by a court,
and if an appeal or other proceeding be pending, enable the Court to
apply the law retrospectively so made which would then change the
very basis of the earlier decision so that it would no longer hold
good. However, if such is not the case then legislation which

41

trenches upon the judicial power must necessarily be declared to be


unconstitutional.

91. In light of the afore-mentioned decisions of this Honble Court, it is


humbly submitted that the Second Judges case and the Third
Judges case were interpreting the term consultation in the old
Article 124 which envisaged a consultative process that the President
would have to undertake prior to appointment of a judge. The said
consultative process including the word consultation have no place in
the amended Article 124 brought about by the 99th Amendment. Hence
precedents pertaining to the old Article 124 have been rendered
ineffective and irrelevant. This, as this Honble Court has held, time
and again, is within the competence of the Parliament. Thus in testing
the constitutional validity of the 99th Amendment, the Second Judges
case and the Third Judges case have no relevance.
III.

In any event, primacy of the judiciary cannot be a basic feature of the


Constitution

a. Primacy of the judiciary and the concept of a judicial collegium to


recommend appointment of judges cannot be culled out from the
provisions of the Constitution as originally enacted.
92. At the time of the enactment of the Constitution, Article 124(2) read
as follows:
(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:

42

Provided that in the case of appointment of a Judge other than the


Chief Justice, the Chief Justice of India shall always be consulted:
Provided further that (a) a Judge may, by writing under his hand
addressed to the President, resign his office; (b) a Judge may be
removed from his office in the manner provided in clause (4).

Similarly Article 217(1) as originally enacted read as follows,


(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 or the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief
Justice of the High Court, and shall hold office until he attains the
age of sixty years:

Provided that -a Judge may, by writing under his hand addressed to the President,
resign his office;
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;
the office of a Judge shall be vacated by his being appointed by the
President of India to be a Judge of the Supreme Court or by his being
transferred by the President to any other High Court within the
territory of India.
93. A bare reading of the provisions demonstrates that in case of Article
124(2), the Chief Justice of India had a mandatory consultative role.
Other judges of the Supreme Court and High Courts could be consulted
by the President in his discretion. In Article 217(1), the Chief Justice of
India, Governor of the State and for posts other than the Chief Justice
of the High Court, the Chief Justice of the High Court would have to be
mandatorily consulted. No question of primacy of the Chief Justice of
India or the judiciary is discernible from a bare reading of the
provisions. On the contrary, it is a scheme that contains checks and

43

balances with no constitutional functionary having unfettered power to


appoint.
94. The Constituent Assembly Debates support this proposition. In the
Debates, the intent of the framers was clearly to prevent unfettered
executive discretion in the matter of appointments while not making
the judiciary an insulated organ of government. Thus appointments
continued to be an executive act with consultation with several
constitutional functionaries to act as a check and balance on the
executive and secure judicial independence. This combination of
judicial independence and mutual checks and balances is not just a
feature of Article 124(2)and Article 217(1) but runs through the whole
of Chapter IV of Part V, pertaining to the Union Judiciary, and Chapter
V of Part VI, pertaining to the High Courts in the States. This is clear
from the note titled Historical Background to Constitutional Provisions
pertaining to the Higher Judiciary submitted to the Court on 5th May,
2015. It may be found in Annexure III.
95. It is evident from a bare reading of Articles 124(2) and 217(1), their
contextual reading in light of the provisions pertaining to the judiciary
on the whole and the Constituent Assembly Debates that in the matter
of appointment of judges to the higher judiciary, no primacy of the
Chief Justice of India was envisaged. On the contrary, the Chief Justice
was a check on the executive which had the final say in the matter of
appointment. There is no indication in any source that this checking

44

function of the Chief Justice of India should be turned on its head and
equated with primacy being accorded to his views.
96. The same inference can be drawn in relation to the view that the Chief
Justice of India in Article 124(2) and Article 217(1) does not act in his
individual capacity but symbolises the view of the judiciary. A bare
reading of Article 124(2) shows that judges of the Supreme Court, other
than the Chief Justice of India, and judges of High Courts could be
consulted by the President in his discretion. Similarly in Article 217(1),
the Chief Justice of the High Court had to be separately consulted as
did the Governor of the State. Through consultation with multiple
constitutional functionaries, a plurality of opinions would be sought,
which would aid the President in appointing the most appropriate
persons to judgeship. Nowhere was this concept of plurality seen as
internal to the judiciary as has been held by the Second Judges
Casein justifying the creation of the collegium. Hence the idea of the
collegium of judges whose opinions would collectively form the view of
the Chief Justice of India is a judicial construct that has no basis in the
original Constitution. This was also the intention of the framers of the
Constitution so as not to allow the judiciary to reallocate the powers of
specific authorities. Dr. Ambedkar in his closing speech in the
Constituent Assembly pertinently noted:
Courts may modify, they cannot replace. They can revise earlier
interpretations as new arguments, new points of view are presented,
they can shift the dividing line in marginal cases, but there are
barriers they cannot pass, definite assignments of power they cannot
reallocate. They can give a broadening construction of existing

45

powers, but they cannot assign to one authority powers explicitly


granted to another.
[Constituent Assembly Debates, 25th November 1949, vol. XI]

97. It has already been established that the basic structure of the
Constitution can be culled out by the judiciary only from the provisions
of the Constitution as originally enacted. There was no concept of
primacy of the Chief Justice of India in the matter of judicial
appointments in the Constitution as originally enacted. Similarly, there
was no concept of a collegium of seniormost justices of the Supreme
Court and High Court, including the respective Chief Justices whose
views would represent the symbolised views of the judiciary. Thus the
primacy of the judiciary in the matter of judicial appointments cannot
be a basic feature of the Constitution.

b. Primacy of the judiciary was a judicially devised method to secure


judicial independence responding to certain pressures on the judiciary at
the time
98. The Second Judges case arose from a reference made by a 3-Judge
Bench of the Supreme Court in Subhash Sharma v. Union of India
(1991) Supp 1 SCC 574. The historical context in which the reference
was made has been explained in Subhash Sharma v. Union of India (at
p. 588):
28. From the affidavits filed by the Union of India and the
statements made by learned Attorney General on the different

46

occasions when the matter was heard, we found that the Union
Government had adopted the policy of reopening recommendations
even though the same had been cleared by the Chief Justice of India
on the basis that there had in the meantime been a change in the
personnel of the Chief Justice of the High Court or the Chief Minister
of the State. The selection of a person as a Judge has nothing
personal either to the Chief Justice of the High Court or the Chief
Minister of the State. The High Court is an institution of national
importance wherein the person appointed as a Judge functions in an
impersonal manner. The process of selection is intended to be totally
honest and upright with a view to finding out the most suitable
person for the vacancy. If in a given case the Chief Justice of the
High Court has recommended and the name has been considered by
the Chief Minister and duly processed through the Governor so as to
reach the hands of the Chief Justice of India through the Ministry of
Justice and the Chief Justice of India as the highest judicial
authority in the country, on due application of his mind, has given
finality to the process at his level, there cannot ordinarily be any
justification for reopening the matter merely because there has
been a change in the personnel of the Chief Justice or the Chief
Minister of the State concerned. We intend to make it clear that this
has to be the rule and the policy adopted by the Union of India as
has been indicated to us in Court by the learned Attorney General
should immediately be given up. In the functioning of public offices
there is and should be a continuity of process and action and all
objective decisions taken cannot be transformed into subjective
issues. That being the position, recommendations finalised by the
Chief Justice of India unless for any particular reason and
unconnected with the mere change of the Chief Justice or the Chief
Minister justifying the same should not be reopened and if in a given
case the Union of India is of the view that the matter requires to be
looked into again a reference should be made to the Chief Justice of
India and there can be a fresh look at the matter only if the Chief
Justice of India permits such a review of the case. In fact, as an
interim measure we had indicated that this should be the position
but we find that steps contrary to the expression of this opinion have
been taken. That is why we have found it necessary to restate the
opinion. Government shall take appropriate action in accordance
with this principle.
99. Interference by the executive leading to appointments on extraneous
grounds was a widespread view ever since the supersession of Justices
Shelat, Hegde and Grover for the post of Chief Justice of India by the

47

executive in 1973, in contravention of the convention of seniority in


appointment of the Chief Justice of India and again the supersession of
Justice Khanna in 1977. This history has been closely analysed in the
121st Report of the Law Commission of India. The Report shows not only
pervasive interference of the executive in appointments but also
recommends primacy of the judiciary in appointments as a response to
it, a view that was adopted in the Second Judges case by interpreting
Article 124(2). Some relevant extracts from the Report with regard to
the intervention of the executive in the matter of transfers:
1.21. In 1976, sixteen Judges were transferred from the respective
High Courts in which they were functioning to another High Court.
For the first time since the Constitution, a Judge of a High Court was
transferred from the High Court to which he was appointed to
another High Court without his consent. Sankalchand Himatlal Sheth.
A Judge of the High Court of Gujarat who was transferred to
the Andhra Pradesh High Court, challenged his transfer on diverse
grounds, one such being that the non-consensual transfer was
outside the purview of article 222 as it would result in erosion of
independence of judiciary. The order of transfer was struck down
by a full Bench of the Gujarat High Court. Union of India appealed
to the Supreme Court. The contention that was put in the
forefront in the Supreme Court was that a non-consensual transfer
is destructive of the independence of judiciary which is the basic
feature of the Constitution and, therefore, the court should read a
limitation "without his consent" in article 222(1). Chandrachud, J.,
observed that the founding fathers of the Constitution envisaged
that the judiciary, which ought to act as a bastion of the rights
and freedom of the people, must be immune from the influence and
interference of the executive. The Constituent Assembly gave to the
concept a concrete form by making provisions to secure and
safeguard the independence of judiciary. After enumerating those
provisions, he concluded that these provisions indisputably
are
aimed at insulating the High Court judiciary,
and
even
the officers and
servants of the court, from the influence of the
executive.
The concern of the court was not to give such
interpretation to article 222 as would in any manner whittle down
the independence of judiciary.
But even with this concern in the
forefront, the majority declined to read the expression without his
consent in article 222. Undoubtedly, the minority held that nonconsensual transfer is outside the purview of article 222. Bhagwati,

48

J., who Jed on behalf of the minority, observed that independence


of judiciary, the fighting faith of our Constitution and fearless
justice is a cardinal creed of our founding document; and in order
to ensure and guarantee the same, it is inconceivable that the
founding fathers should have left a loophole and conceded
power to the executive to inflict injury on a High Court Judge
by transferring him without his consent so as to wipe out the
effect of other
provisions
and denude them of meaning and
content.
1.22. The very question came to be re-agitated before a larger Bench
in S.P. Gupta vs. Union of India. The view that selective transfer of
individual
Judge for something improper in his behaviour or
conduct would certainly cast a slur or attach a stigma and would
leave indelible mark on the character of the Judge found favour
generally. Such a transfer, it was said, was outside the purview of
article 222 and power to transfer in this fashion makes Judges
vulnerable to pressure or
blackmail.
1.23. Threat to independence of judiciary was also perceived in a
circular letter issued by the then Law Minister and the argument
covered much wider ground. It was inter alia, contended that if
primacy is not accorded to the opinion of the Chief Justice of India
in the matter of appointment of Judges of High Courts and
Supreme Court, the prized independence of the judiciary would
become hollow and the executive would be able to impose its own
nominees on the judiciary. A comprehensive analysis of the power of
appointment of Judges in various democracies was undertaken. It
was held by the majority that there is hardly any country in which
appointment of Judges is by nomination and not election, where
the executive does not enjoy the power of selection and
nomination or that the judiciary has a veto in the matter of such
appointments. The conclusion, however, was that the vesting of the
power of appointment in the executive without a veto of the
judiciary is not subversive of the independence of the judiciary.
The Report also pertinently charted the history of supersession of
judges at the behest of the executive:
3.18. Supersession in the matter of selection of the Chief Justice of
India, transfer of Judges, and non-confirmation of additional Judges
of the High Courts in exercise of the power conferred by article 222
of the Constitution are some other developments which have given
rise to an apprehension that the independence of judiciary, said to
be the cardinal feature of the Constitution, is likely to suffer erosion
at the hands of the Executive.

49

3.19. Since the inception of the Constitution, the office of the Chief
Justice of India was filled in by promotion of the next man according
to seniority. This principle was departed from in April 1973, when
the then Chief Justice of India demitted office on reaching the age
of superannuation but the Judge next in succession was not
promoted to the office of the Chief Justice of India. He and two
others were superseded and the Judge fourth in rank was promoted
as the Chief Justice of India. This was seen by the Bar as a threat to
the independence of the judiciary, by some as subversion of the
Constitution from within and a manifest attempt to undermine the
courts independence. Again, in January 1977, on the retirement of
Justice A.N. Ray, the next Judge according to seniority was passed
over and the Judge next to him was appointed as Chief Justice of
India, the controversy, reenacting the events of 1973, ensued.
3.20. The Government of India, recalling the earlier report of the
Law Commission on Judicial Administration defended its action
stating that succession to the office of the Chief Justice of India
cannot be regulated by mere seniority. The Commission had
recommended that a healthy convention should be set up that
appointment to the office of the Chief Justice rests on special
consideration and does not as a matter of course go to the seniormost puisne Judge. If such a convention was established, it would be
no reflection on the senior-most puisne Judge if he is not appointed
to the office of the Chief Justice. The Commission had also
recommended that such a convention must also be established in the
case of appointment of Chief Justice of a High Court. Once such a
convention is established, it will be the duty of those responsible for
appointment to choose a suitable person for that high office, if
necessary, from among persons outside the court.
3.21. It is during this controversy that a reference was made by the
then Law Minister and another Minister to the Government of India
to the social philosophy of the person to be considered for
appointment as the Chief Justice of India being in tune with one of
the Government of the day. This statement gave rise to a bitter
controversy and it was said that this is the starting point of setting
up a committed judiciary.
While contemplating the need for a new system:
7.1. Everyone is agreed that the present scheme or model or
mechanism for recruitment to superior judiciary has failed to deliver
the goods. Even the votaries of the effectiveness of the present
model
have conceded that defects and lacunae have come to
surface in the actual working of the scheme and that they were of
such character that they can be rectified without throwing
overboard the whole scheme. Efforts should, therefore, be made to
rectify the defects and plug the loopholes.' Add to that the views

50

already referred to of former Chief Justice, Mr. Y. V. Chandrachud


and Mr. P.N. Bhagwati, all of whom were directly involved in the
process of selection and appointment of Judges to the superior
judiciary, who have bemoaned that the constitutional scheme is
cumbersome and operates in such a manner as not to permit
the filling in of vacancies within a reasonable time and to attract
independent, honest and efficient Judges.
Primarily the way in
which the scheme operates has an inbuilt potentiality for inordinate
delay in making the appointments. It is compounded by various other
factors noticed from 1958 till 1985 and the outcome is unedifying.
7.2. Is it possible to re-structure, reform or revitalize the present
scheme? Looking to the serious attempts made in the past, one must
answer the question with regret in the negative. Nor can one shut his
eyes to the everyday deteriorating situation in this behalf.
Therefore, a new model has to be devised taking care to see that
in its organic structure, it does not suffer from the same
infirmities as the present one so as to result in the same type of
imbroglio after a few years.

100. This was supported by the Constitution (67th Amendment) Bill, 1990
introduced in the Lok Sabha by Law Minister Dinesh Goswami. The
Statement of Objects and Reasons appended to the Bill as reproduced
in the NCRWC Report stated that the object of the said amendment
was to obviate the criticisms on the part of the executive in such
appointments and transfers and also to make such appointments
without any delay. (Para 8.18, Consultation Paper on Superior
Judiciary, NCRWC)
101. It was in this backdrop that the Second Judges case read in primacy
of the Chief Justice of India into Article 124(2) and Article 217(1) of the
Constitution. It was thus devised as a method to protect judicial
independence in the particular political context of threats of excessive
executive interference in appointments. Such a method, derived in a
particular context to protect judicial independence cannot itself be

51

considered to be part of the basic structure of the Constitution,


immune from amendment for all times to come. This is especially so
since the context which is determined by political circumstances can
easily change over time and new problems may emerge. Thus primacy
of the judiciary in appointment of judges cannot be part of the basic
structure of the Constitution.
102. Further, in the Second Judges case, it was observed by Verma J. (at
pp. 688-689):
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.
439. The primacy of one constitutional functionary qua the others,
who together participate in the performance of this function
assumes significance only when they cannot reach an agreed
conclusion. The debate is academic when a decision is reached by
agreement taking into account the opinion of everyone participating
together in the process, as primarily intended. The situation of a
difference at the end, raising the question of primacy, is best
avoided by each constitutional functionary remembering that all of
them are participants in a joint venture, the aim of which is to find
out and select the most suitable candidate for appointment, after
assessing the comparative merit of all those available. This exercise
must be performed as a pious duty to discharge the constitutional
obligation imposed collectively on the highest functionaries drawn
from the executive and the judiciary, in view of the great
significance of these appointments. The common purpose to be
achieved, points in the direction that emphasis has to be on the
importance of the purpose and not on the comparative importance of
the participants working together to achieve the purpose. Attention
has to be focussed on the purpose, to enable better appreciation of
the significance of the role of each participant, with the
consciousness that each of them has some inherent limitation, and it
is only collectively that they constitute the selector.

52

440. The discharge of the assigned role by each functionary, viewed


in the context of the obligation of each to achieve the common
constitutional purpose in the joint venture will help to transcend the
concept of primacy between them. However, if there be any
disagreement even then between them which cannot be ironed out
by joint effort, the question of primacy would arise to avoid
stalemate.
103. Thus the purpose of reading in a primacy requirement, in addition to
securing judicial independence from executive pressure, was to
prevent a constitutional stalemate. It is humbly submitted that the
possibility of such a stalemate arose only because there was no
provision in the original Constitutional scheme to specifically deal with
disagreements between constitutional functionaries. Thus a method
devised to avoid a stalemate in the context of a particular provision
which itself is not immune to amendment, cannot be said to be a basic
feature of the Constitution, unamendable even by Parliament
exercising its otherwise plenary power of amendment of the
Constitution.
c. There is no necessary connection between judicial independence and
primacy of judges in appointment
104. It is the argument of the petitioners that primacy of the judges in
appointments is an inalienable facet of the independence of the
judiciary. It is humbly submitted that this is not so.
i. An overwhelming majority of countries with independent
judiciaries do not have judicial primacy in the matter of
appointment

53

105. It is humbly submitted that an overwhelming majority of countries


across the world with independent judiciaries do not have judicial
primacy in the matter of appointment. In a cross-jurisdictional survey
of 15 countries chosen from a wide spectrum, it was found that none
have unfettered judicial primacy in the matter of appointment of
judges to the higher judiciary. The list of these countries together with
details of their method of appointment can be found in Annexure VI.
106. The key observations in relation to judicial appointments in the 15
countries surveyed in Annexure VI are the following:
a. 9 countries conduct appointment of judges through either judicial
appointment commissions(Kenya, Pakistan, South Africa and UK),
committees (Israel) or councils (France, Italy, Nigeria, and Sri
Lanka);4 countries appoint judges through a direct order of the
Governor General (Australia, Canada, New Zealand) or the President
(Bangladesh), where applicable;1 (Germany) follows a multi-stage
process of nomination by the Minister of Justice, confirmation by
Parliamentary Committees and final appointment by the President;
and 1 (United States) follows a process of nomination by the
President (executive) and confirmation by the Senate (legislature).
b. In all 15 countries, the executive is the final or determinative
appointing authority. Out of the 9 countries with commissions, in 2
countries (South Africa and Sri Lanka) the executive has absolute
majority in comparison with members of other groups (judiciary,
legislature and independent persons). In 4 countries (France, Israel,

54

Kenya and UK) there is a balanced representation of various


stakeholders, including the executive. Out of 3 countries where the
number of judges are in a majority (Italy, Nigeria and Pakistan), in 2
countries (Nigeria and Pakistan) the decision of the commission is
subject to the vote of a parliamentary committee/ Senate, while in 1
(Italy), the President of the Republic is the final appointing authority
and the chairman of the judicial appointment body. In 5 of the
countries without commissions (Canada, Australia, New Zealand,
Bangladesh and United States of America), the decision is taken by
the Executive without any formal process of consultation with the
judiciary, while in 1 (Germany), the appointment process is
conducted by the Parliament, and later confirmed by the President.
c. In 8 countries (France, Israel, Italy, Kenya, Nigeria, Pakistan,
South Africa and UK) with bodies for judicial appointments,
independent members have a mandated role in the selection process
through representation on the said bodies. In 4 countries where
independent members do not play a formal role in the appointment
process (Canada, USA, Australia and New Zealand), the appointing
authority (body or person) consults independent members at various
stages of the appointment process for their feedback on the selection
or recommendation of a prospective candidate. In 3 countries
(Bangladesh, Germany and Sri Lanka) no documented process of
consultation with independent members is provided for.
107. Based on the abovementioned observations, it is respectfully
submitted that with the exception of Italy to a limited extent, in none

55

of the countries surveyed does the judiciary enjoy any primacy in the
matter of appointments. Even in Italy, the chairperson of the CSM
(appointments commission) is the President who ultimately appoint
judges. In no country is participation of the executive per se or even its
dominant participation, opposed or frowned upon. Such lack of judicial
primacy is not seen as detracting from the existence of an independent
judiciary in any of these countries.
d. Judicial independence without primacy of the judiciary in appointments
was the express intention of the drafters of the Constitution manifested
in the early working of the Indian higher judiciary
108. It has already been demonstrated that the intention of the framers of
the Constitution was to secure the independence of the judiciary.
However this did not extend to requiring primacy of the judiciary in the
matter of appointment. Individual independence of judges was sought
to be optimally protected by a method of appointment that involved
both the Executive as well as the Judiciary, with the ultimate act of
appointment being an executive act. Further, judges salaries could not
be diminished to their disadvantage and they could not be removed
except by impeachment. Institutional independence was protected by
vesting the Supreme Court and High Courts with primary power
(subject to Parliamentary oversight) to frame rules, as well as
managing their expenses which were to be charged on the Consolidated
Fund of India.

56

109. Such a scheme without any primacy of judges in appointment was


deemed sufficient to protect independence of the judiciary. KM
Munshi, a member of the Drafting Committee said [23rd May 1949 (CAD
Vol. VIII, p. 220-221)]
We have invested the Judiciary with as much independence as is
possessed by the Privy Council in England and to large extent, by the
Supreme Court of America; but any water-tight compartments of
powers have been rejected.

110. This was echoed by Dr. BR Ambedkar, when he said, (27th May 1949,
Constituent Assembly Debates, vol. VIII, p. 397)
Sir, there is no doubt that the House in general, has agreed that
the independence of the Judiciary from the Executive should be
made as clear and definite as we could make it by law. At the same
time, there is the fear that in the name of the independence of the
Judiciary, we might be creating, what my Friend Mr. T. T.
Krishnamachari very aptly called an Imperium in Imperio. We do
not want to create an Imperium in Imperio, and at the same time we
want to give the Judiciary ample independence so that it can act
without fear or favour of the Executive.

111. It is thus clear that conceptually, for the founding fathers of the
Constitution, independence of the judiciary, which they were very
zealous of protecting, did not require primacy of judges in the process
of appointment. This provides further evidence to buttress the
proposition that primacy of the judiciary in appointment, both in other
jurisdictions, as well as originally conceived of in India, did not require
such primacy. Hence there is no necessary connection between having
an independent judiciary and having primacy of the higher judiciary in
appointment of judges.

57

112. On the basis of the aforesaid analysis, the following propositions of


law pertaining to judicial primacy are advanced for the consideration
of this Honble Court:
a. The Second Judges case and the Third Judges case which held
primacy of the judiciary to be a requirement in appointment of
judges to the higher judiciary require reconsideration by a larger
Bench.
b. If not reconsidered, the aforesaid judgments have no relevance
given the amendment of Article 124 which has removed the basis
for the said judgments.
c. In any event, primacy of the judiciary in the matter of
appointment of judges to the higher judiciary is not a basic
feature of the Constitution being only a method to protect judicial
independence devised at a particular time and having no place in
the original Constitution.
d. There is no necessary connection between primacy of the
judiciary and judicial independence, i.e. it is possible to have an
independent

judiciary

without

judges

having

primacy

in

appointment.