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In the instant petition, the main argument that lies for consideration for this Hon’ble Court is
that the assailed Constitution Amendment Act and the NJAC Act, 2104 is violating the
concept of “Independence of Judiciary” as has been judicially evolved by the state of Valston
through its judgement rendered in Second1 and Third Judges Case.2
First to understand the concept, Independence of the Judiciary means that the judiciary as the
wing of the government should be free from the influence and control of the other two organs
i.e. the executive and the legislature of government as Judiciary is the sentinel of the
Constitution and its fundamental values and is considered as the lifeblood of
constitutionalism in democratic societies.
In the instant case, the passing of the impugned legislation has taken away such role and
power of Judiciary as explained above. By placing reliance on the First Judges Case3 decided
by this Hon’ble Court, whereby this court proceeded on the assumption that the Independence
of Judiciary is the basic feature of the Constitution but failed to appreciate that the
interpretation, it gave, was not in conformity with wider facets of the two concepts i.e.
‘Independence of Judiciary’ and ‘Judicial Review’ - which are interlinked and interconnected
to each other”.
“If there is one principle which is pervasive 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.” 4
Further it was held that, the principle of “independence of the judiciary” had to be kept in
mind, while interpreting the provisions of the Constitution5.
1 Supreme Court Advocates on Record v Union of India, 1993 4 SCC 441
2 Special Reference No.1 of 1998, (1998) 7 SCC 739
3 S.P. Gupta v. Union of India, 1981 (Supp) SCC 87
4 Ibid,
5 (Paragraph 27).

unquestionably rested with the judiciary. It is further argued that the principles laid down in the Second and Third Judges cases by this Hon’ble Court are not based purely on the interpretation of the text of the Constitution as it stood prior to the impugned amendment but also on the basis of a fundamental Constitutional principle that an Independent Judiciary is one of the basic features of the Constitution. determines that Judiciary is unrestrained from the other two organs of the government. which the action of the executive to put off the recommendation(s) made by the Chief Justice of India. Within the powers of an independent judiciary the exclusive process of “Judicial Review” is linked and the exercise of such important function. also endorsed the view. 2104 are undermining the principle of “Independence of Judiciary”. THE IMPUGNED AMENDMENT IS AGAISNT THE PROCESS OF JUDICIAL REVIEW. almost unanimously concluded. the primacy of opinion was given to the Chief justice of Valston in the matters of appointment of Judges to the higher judiciary. Now. and a conclusion was made that the judgment rendered in the First Judges case. it is to be said that the position adopted of a nine-Judge Bench. insulation of the higher judiciary from executive and legislative control. It is submitted. that in the matter of selection and appointment of Judges to the higher judiciary. by a majority of 7:2. certain questions are needed to be answered: I. that “Independence of the Judiciary” had been held to mean. decided by this Hon’ble Court. did not lay down the correct law. . would amount to an act of deprival. The procedure for appointment of the Judges to the higher judiciary is an important element in the establishment and nurturing of an Independent Judiciary. who supported the minority opinion. It is now submitted that. again by considering the Second Judges Case. “Violating the Spirit of the Constitution”. regarding this.Now. The Second Judges case. to contend that the Impugned Constitutional Amendment and the NJAC Act. primacy in the decision making process. One of the Judges on the Bench. the independence of judiciary is intimately linked and connected with the constitutional process of appointment of judges of the higher judiciary and it is well established now that the ‘Independence of Judiciary’ is the basic feature of our Constitution.

the other two organs of the state could not act arbitrarily regarding their actions with respect to the discharge of public duties.7 To state the eloquent words of Justice Krishna Iyer. AIR 1997 3 SCC 261 7 8 (paragraph 78) 9 Kesavananda Bharati v. While the Constitution confers the power to strike down laws made by the legislature upon the High Courts and the Supreme Court. in the Fundamental Rights Case 9 held that. the judiciary would be capable of effectively discharging its wide powers of Judicial Review. While drafting the Constitution of Valston attempts were directed at ensuring that while using its powers. The Judges of the superior courts have been entrusted with the task of upholding the Constitution.. “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 6 L Chandra Kumar v. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of Checks and Balances and further the concept of ‘Independence of Judiciary’ and ‘Judicial Review’ are interlinked. 366 (1973) 4 SCC 225 . that “Independence of the judiciary is not genuflexion. and to this end. are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. We. that under the Constitution of Valston the constitutional safeguards which ensure the Independence of the Judges of the superior judiciary. nor is it opposition of Government”. hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution as an integral and essential feature of the Constitution. It is to be noted that. therefore.8 The Indian Supreme Court. have been conferred the power to interpret it with respect to the statutes passed by the legislature. of the Indian Supreme Court. Union of India & Ors. constituting part of its “Basic Structure”. It is submitted.The Indian Supreme Court through its Seven-Judge Bench 6 has held that the power of “Judicial Review of legislative action by the Supreme Court and High Courts is part of the Basic Structure of the Constitution. State of Kerala.

II.pdf . the brazen attempt led by the executive to usurp the power and engulf the sacred pillar of Judicial Independence by enacting section 2(a) of the impugned constitutional amendment is against the very premise of the system of appointment which were originally enacted in the constitution of Valston. however. The executive Government.functions entrusted to can never go 10 https://www. that “Independence of the Judiciary” could be maintained. from the Based on the above conclusions.ucl. Though the Constitution does not lay down the principle of Separation of Powers in all its rigidity. The authority to impose most of those controls comes. were made accordingly to the judgement given by this Hon’ble Court in the Second Judges Case where the primacy to appoint the members of the higher judiciary lied with the Chief Justice and further the decision was based on the decision of a collegium of Judges. THE IMPUGNED CONSTITUTIONAL AMENDMENT IS UNDER EXECUTIVE CONTROL It is submitted. the executive and legislative invasion. only if appointments of Judges to the higher judiciary. The citizenry must be able to challenge the legitimacy of executive action before an Independent Judiciary. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. could be effectively controlled and curbed. that in a modern society the individual citizen is subject to controls imposed by the executive in respect of almost every aspect of life. directly or indirectly. it is submitted. The question which arises before us is regarding the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of Basic Structure. The Constitution of Valston has not indeed recognised the doctrine of Separation of Powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated.” In the instant matter.10 It may not be possible to frame an exhaustive definition of what executive function means and implies. Only then.

however. that the Chief Justice of Valston. In actual practice. It is clear. and the two other senior Judges of the Supreme Court (next to the Chief Justice of Valston). The Indian Supreme Court held that11. even if the Chief Justice of Valston. Even by the two “eminent persons” who may have no direct or indirect nexus with the process of administration of justice. talks about the inclusion of “two eminent persons”. State of Punjab. and is expected to function so that the final opinion expressed by him is not merely his individual opinion. the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary. the same could be repulsed. [1955] 2 SCR 22 .” It is submitted that w. would now have an equivalent voting right. it shall remain independent and free from political executive influence. In other words. It has to be seen. by any two Members of the NJAC by applying the power of Veto.t the impugned constitutional amendment which lays down the procedure of setting up of a commission. that under the replaced procedure. It is therefore submitted. Such possibility would eventually enable executive to make appointments purely on political considerations It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution. he has no casting vote. that the primacy vested with the Chief Justice of Valston had been fully and completely eroded. supported the appointment/transfer of an individual. this is how the Chief Justice of India does. can never go against the provisions of the Constitution or of any law. which means that it must necessarily have the element of plurality in its formation. but the collective 11 Ram Jawaya Kapur v.against the provisions of the Constitution or of any law. and an adjunct of this principle is the absence of absolute power. in the event of a tie. It is further submitted that there could be a compromise between the Union minister in – charge of law and those two eminent persons to stall the recommendation given by the persons from Judicial Fraternity. “It may not be possible to frame an exhaustive and comprehensive definition of what executive function means but the executive. As Judiciary is said to be the “Sentinel on the Qui Vive”.r. as the other Members of the NJAC even though the Chief Justice of Valston would be the Chairman of the NJAC.

that the term “consultation” with reference to Article 124. . not the individual opinion of the Chief Justice of India. After all. “a Brother has the right to choose a Brother”. Under Article 124. who is best equipped to assess the true worth of the candidates for adjudging their suitability. but the executive was to accede to the view expressed by the Chief Justice of India. it is to be said that the entrustment in the matter of appointment of higher judiciary shall be let in the hands of the judiciary itself. but the opinion of the judiciary symbolized through the Chief Justice of India. had been understood as conferring primacy with the judiciary. Insofar as the term “Chief Justice of India” is concerned.opinion formed after taking into account the views of some other Judges who are traditionally associated with this function. To conclude. it has also been understood to mean. It has been clear. the President was not required to merely “consult” the Chief Justice of India.