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TEAM CODE: OUIMCC-0269

BEFORE
THE MOOT COURT

CASE CONCERNING CONSTITUTIONALITY OF (ONE HUNDRED AND FIFTIETH AMENDMENT) ACT,


2013

UNION OF INDIA
APPELLANT
V

THE BAR ASSOCIATION OF INDIA


RESPONDENT

MEMORIAL FOR THE APPELLANT


~ OXFORD UNIVERSITY INDIA MOOT COURT COMPETITION ON CONSTITUTIONAL LAW,
2013-14 ~

Page 1

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ____________________________________________________05


INDEX OF AUTHORITIES _____________________________________________________08
i) LIST OF LEGISLATIONS _______________________________08
ii) CASE LAWS________________________________________08
A) Indian Cases____________________________________08
B) Foreign Cases___________________________________13
iii) BOOKS____________________________________________14
iv) LAW JOURNALS_____________________________________16
v) CONSTITUTIONAL DOCUMENTS_________________________16
vi) MISCELLANEOUS____________________________________16
STATEMENT OF FACTS______________________________________________________17
ISSUES RAISED____________________________________________________________18
SUMMARY OF ARGUMENTS__________________________________________________19
ARGUMENTS ADVANCED____________________________________________________20
I.

THE SC HAS NO POWER TO HOLD AN AMENDMENT TO THE CONSTITUTION


INVALID, IF IT WAS MADE IN ACCORDANCE WITH THE PROCEDURE SET OUT IN
ARTICLE 368.______________________________________________________20
A. The DBS as outlined by the court in its previous judgments rests on a mistaken
interpretation of Constitution and is vague, hence, should be overruled._________20
1. The test stone of amendment on the basis of DBS is itself vague
concept.____________________________________________________________20
2. The DBS is itself a self contradictory doctrine__________________________21
3. The DBS has removed the cap of judicial restraint from judicial activism, disturbing
the

balance

of

the

Constitution

while

violating

the

separation

of

power.______________________________________________________________22

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 2

4. The DBS is arbitrary in nature. ______________________________________23


5. The principle of DBS is in violation of rule of law._________________________23
B. The SC has power to hold an amendment to the constitution invalid only to the extent
of non fulfillment of amendment making process._______________________________24
1. The power of Judicial Review is itself undemocratic concept that should not be
used by the Court for questioning any law.________________________________ 24
2. Amendment complied with procedure set out in Article 368 cannot be questioned in
the Court.___________________________________________________________25
3. The limitation to the power of amendment is based on the misreading of cannons of
interpretation._______________________________________________________26

II.

AMENDMENT AND THE ACT DO NOT ALTER THE BASIC STRUCTURE OF THE
INDIAN CONSTITUTION BY DIMINISHING THE INDEPENDENCE OF THE JUDICIARY.
HENCE, SHOULD BE UPHELD BY THE HONBLE COURT.________________27
A. The two decisions those are Second Judge Case and Third Judge Case should
be overruled by the honorable Court.___________________________________27
1. SC erred while holding that the Consultation with the CJI refers to Collegium,
thereby leading to the creation of the Memorandum of Procedure rewrote the
provision of the Constitution.___________________________________________28
a. No Judgment can, by purporting to prescribe a norm, rewrite Article 124(2)
and if does so would be pro tanto null and void.______________________28
b. No Judgment can, by purporting to prescribe a norm, rewrite Article 217(1)
and Article 222 and if does so would be pro tanto null and
void._________________________________________________________29

2. The word Consultation under Article 124(2), Article 217(1) and Article 222 cannot be
interpreted as Concurrence._________________________________________________29
MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 3

a. Court shown ignorance of the Legislative history and intention of the framers of the
Indian Constitution.________________________________________________29
i. Court disregarded the legislative history of Article 124(2) and Article
217(1)._______________________________________________________29
ii. Court overlooked the relevant legislative history of Article 50 of the Indian
Constitution.__________________________________________________30
b. Court misinterpreted the ordinary English Words and gave last word to the CJI in
appointing the judges._______________________________________________________31
c. The effect of the word Consultation being used at three places in Article 217(1) was
overlooked in the aforementioned two decisions.__________________________________32
d. Article 124(2) itself shows that the Consultation there prescribed is not a
Concurrence.______________________________________________________________33
B. Amendment and the Act are not against the cardinal principle of the
Independence of Judiciary.__________________________________________________33
1. Detailing the Composition of the JAP under the Act and not under the
Amendment is justified and nowhere affects the Independence of the
Judiciary.___________________________________________________________33
2.

The

composition

of

the

JAP

is

efficient,

well

organized

and

coherent.___________________________________________________________35
3. JAP fulfills the purpose of ensuring the proper Checks and Balances in the
Judicial System.______________________________________________________36
4. Act is not required to follow the rule of seniority in the appointment of
CJI._______________________________________________________________37
5. Act does not exclude the Judicial Review.______________________________38
PRAYER__________________________________________________________________40

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 4

LIST OF ABBREVIATIONS

1.

Anr

Another

2.

Art

Article

3.

AIR

All India Report

4.

Amendment

One Hundred and Fiftieth Amendment Act, 2013

5.

Act

(Higher Judiciary) Appointment and Transfer Act, 2013

6.

AP

Andhra Pradesh

7.

CAD

Constitutional Assembly Debate

8.

Corp

Corporation

9.

Col

Column

10.

Co

Company

11.

CJI

Chief Justice of India

12.

CJ

Chief Justice

13.

DBS

Doctrine of Basic Structure

14.

Edn

Edition

15.

EPW

Economic and Political weekly

16.

FCR

Federal Court Reports

17.

HC

High Court

18.

HP

Himachal Pradesh

19.

Honble

Honourable

20.

IJPS

Indian Journal of political Science

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 5

21.

JAP

Judicial Appointment Panel

22.

Ker

Kerala

23.

L&P

Law and Philosophy

24.

Ltd

Limited

25.

LNBW

Lexis Nexis Butterowrths Wadhwa

26.

LNB

Lexis Nexis Butterworths

27.

LRC

Law Reform Commission

28.

MP

Moot Problem

29.

MLJ

Malaysia Law Journal

30.

No

Number

31.

Consecutive Footnote

32.

Ors

Others

33.

OUP

Oxford University Press

34.

PLD

Pakistan Legal Decision

35.

Para

Paragraph

36.

President

President of India

37.

PUCL

People Union of Civil Liberties

38.

Section

39.

Sch

Schedule

40.

SA

South Africa

41.

SCC

Supreme Court Cases

42.

SC

Supreme Court

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 6

43.

44.

SCR

Supreme Court Reports

Second

Supreme Court on Record Association v UOI

Judge Case
Third Judge

In re Presidential Reference Case

45.

Case

46.

UP

Uttar Pradesh

47.

US

United State

48.

UK

United Kingdom

49.

UOI

Union of India

50.

ULP

Universal Law Publishing

51.

Versus

52.

Vol

Volume

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 7

INDEX OF AUTHORITIES
-CASE LAWSS. NO.

-INDIAN CASES-

PAGE NO

-A1.
2.
3.

AK Sabhapathy v State of Kerela, [1983] Ker 24 (HC)


Ashok Kumar v UOI, [2008] 6 SCC 1 (SC)
Automobile transport v State of Rajasthan, [1962] AIR 1406 (SC)

34
22
30

-B-

4.
5.
6.

B K Srinivasan v State of Karnataka, [1987] AIR 1059 (SC)


Babua Ram v UP, [1995] 2 SCC 689 (SC)
Bhim Singh v Union if India, [2010] 5 SCC 538 (SC)

38
31,32
39

-CChairman, Rajasthan State Road Transport Corporation v Smt Santosh,


7.

8.
9.

39

[2013] 2150 (SC)


Chiranjit Lal Chowdhuri v the UOI, [1951] AIR 41
Collector of Customs v Nathella Sampathu Chetty, [1962] AIR 316 (SC)

27
34

-D-

10.

Diamond Sugar Mills v State of UP, [1961] AIR 652

26

Divisional Manager, Aravali Golf Club v Chander Hass, [2008] 1 SCC


11.

12.
13.

683 (SC)
D K Basu v State of WB, [1997] AIR 610 (SC)
D K Trivedi v State of Gujarat, [1986] AIR1323 (SC)

MEMORIAL FOR APPELLANT (UNION OF INDIA)

34

39
34

PAGE 8

-F-

14.

Federation of Railway Officer Association v UOI, [2003] 4 SCC 289 (SC)

34

-G-

15.
16.
17.

G C Kanungo v State of Orrisa, [1995] AIR 1655 (SC)


Good Year India Ltd v State of Haryana, [1990] AIR 781 (SC)
Government of A P v P Laxmi Devi, [2008] 4 SCC 720 (SC)

21
27
34

-HHans Muller v Superintendent, Presidency Jail Calcutta, [1955] AIR 367


18.

19.

33

(SC)
Hardev Mukherjee v State of West Bengal, [1993] 3 SCC 723 (SC)

34

-I-

20.
21.
22.

I C Golaknath v State of Punjab, [1967] 2 SCR 762 (SC)


Indian Cement Ltd v State of Tamil Nadu, [1990] AIR 85 (SC)
Indira Nehru Gandhi v Raj Narain, [1975] 3 SCR 333 (SC)

20,26
31
21

-J-

23.

Jilubhai Nanbhai Khachar v State Of Gujarat, [1995] AIR 142 (SC)

20

-KKachchh Jal Sankat Nivaran Samiti v State of Gujarat, [2013] AIR 2657
24.

25.
26.
27.

(SC).
Kalyan Chandra Sarkar v Rajesh Ranjan, [2005] 972 (SC)
Keshavananda Bharati v State of Kerala, [1973] AIR 1461 (SC).
Keshavan Madhava Menon v State of Bombay, [1951] AIR 228 (SC)

MEMORIAL FOR APPELLANT (UNION OF INDIA)

34

39
20,21,23,
26
24
PAGE 9

28.
29.

Kuldip Nayar v UOI and Ors, [2006] AIR SC 3127 (SC)


Kumar Padma Prasad v UOI, [1992] AIR 1213

34
21

-L-

30.
31.
32.
33.

L Chandra Kumar v UOI, [1997] 3 SCC 261


Laxmi Khand Sari v State of UP, [1981] AIR 873 (SC)
Life Insurance Corp of India v Mnaubhai D Shah, [1993] AIR 171 (SC).
LK Pandey v UOI and Anr, [1986] AIR 272 (SC)

22
34
31
39

-M-

34.

Mafatlal Industries v UOI, [1997] 5 SCC 536 (SC)

34

Moti Ram Dekha v G.M North East Frontier Railway, [1964] AIR 600
35.

36.

35

(SC)
Motor Transport v State of M P, [2006] 8 SCC 613 (SC)

34

Mr Justice Chandrashekaraiah v Janekere C Krishna, [2013] AIR 726


37.

29

(SC)
-N-

38.
39.

Nair NR v UOI, [2001] 6 SCC 84 (SC)


Narinjerjit Sahni v UOI, [2002] 2 SCC 210 (SC)

35
21

Navinchandra Mafatlal v Commissioner of Income Tax Bombay, [1955]


40.

41.

33

AIR 58 (SC)
N Kamnadasan v Ajay Khose, [2009] 7 SCC 1 (SC)

21

-P-

43.

Pathumma v State of Kerala [1978] AIR 771 (SC)

MEMORIAL FOR APPELLANT (UNION OF INDIA)

31

PAGE 10

44.
45.

Presidential Reference, In Re [1999] AIR 1 (SC)

25,28,29,
38

PUCL v Union of India, [2004] AIR 1442 (SC)


-R-

46.
47.
48.

Ramamurthy v State of Karnataka, AIR 1997 SC 1739


Ratnakar Rao P v Government of AP, [1996] AIR 2523 (SC)
R M D Chamarbaugwalla v UOI, [1957] AIR 628 (SC)

39
35
36

-S-

49.

Sampath v UOI, [1987] AIR 386 (SC)

21

SC Advocate On Record Association v Union Of India [1994] AIR 268


50.

51.
52.
53.
54.
55.

28,29,31

(SC)
Shamsher Singh v State Of Punjab, [1974] AIR 2192 (SC).
SP Gupta v UOI, [1982] AIR 149 (SC)
S R Chaudhuri v State of Punjab [2001] AIR 2707 (SC)
State of Bihar v Bihar Chamber of Commerce, [1996] AIR 2344 (SC)
State of Rajasthan v UOI, [1978] 1 SCR 1 (SC)

32
21
30
35
34

State of Karnataka v Vishwabharathi House Building Cooperative


56.

34

Society, [2003] 2 SCC 412 (SC)


-TThe Bengal Immunity Company Limited v The State of Bihar, [1955] 2

57.

58.

SCR 603 (SC)


The Central Provinces and Berar Act, In Re (1939) 1 F C R 18

36

29,31

The State of Bihar v Maharajadhiraja Sir Kameshwar, [1952] AIR 252


59.

(SC)

MEMORIAL FOR APPELLANT (UNION OF INDIA)

24

PAGE 11

60.

Travancore-Cochin v Bombay Co Ltd, [1952] AIR 366 (SC)

30

-UUniversity of Kerala v Council, Principals Colleges, Kerala and Ors,


61.

62.
63.
64.

39

[2010] AIR 2532 (SC)


UOI v Delhi High Court Bar Association, [2002] 4 SCC 275 (SC)
UOI v Madras Bar Association, [2010] 11 SCC 1 (SC)
UOI v Sankal Chand Himatlal Sheth,[1977] AIR 2328 (SC)

34
34
32

-VV Ramakrishna Rao v Singareni Collieries Company, [2010] 10 SCC 650


65.

29

(SC)
-W-

66.
67.

Waman Rao v UOI, [1981] 2 SCC 362 (SC)


Welfare Association ARP v Ranjit P Gohil, [2003] AIR 1103 (SC)

27
33

-Z-

68.

S. NO.

Zee Telefilms Ltd v UOI, [2005] AIR 2677 (SC)

-FOREIGN CASES-

26

PAGE NO

-AUSTRALIA-

1.

James v Commonwealth [1936] AC 526

31

-ENGLAND-

2.

Heydon's case [1584] 3 W.Rep 16

36

-MALAYSIA-

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 12

3.

Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70

22

-PAKISTAN-

4.
5.
6.
7.
8.
9.
10.
11.
12.

Fauji Foundation v Shamim Ahmed Khan [1983] PLD 456


Federation of Pakistan v Saeed Ahmed Khan [1974] PLD 151
Forum v Federation of Pakistan [2005] PLD 719
Islamic Republic Of Pakistan v Abdul Nali Khan [1976] PLD 57
Khan Muhammad Sharif v Federation of Pakistan [1988] PLD 725
Mahmood Khan v Achakzai [1997] PLD 426 (SC)
Sharaf Fridi v Federation of Pakistan [1989] PLD 404
State v Zia-ur-Rehman [1973] PLD 49
Syed Zafar Ali Shah v General Parvez Mushraf [2000] PLD 869

26
26
22
26
26
26
26
26
22

-SRI LANKAIn Re Thirteenth Amendment of the Constitution and Provincial Council


13.

22

Bill [1990] LRC


-UNITED STATES OF AMERICA-

14.
15.
16.

S. NO.

Bank of Toronto v Lambe (1887) 12 AC 575


Ex Parte Crossman (1924) 267 US 87
Queenside Hills Co v Saxl (1945) 328 US 80

-LIST OF LEGISLATIONS-

1.

Constitution of India 1950

2.

Constitution of the Republic of South Africa 1996

MEMORIAL FOR APPELLANT (UNION OF INDIA)

34
34
35

PAGE NO

28,30,33
35
PAGE 13

3.

Higher Judiciary (Appointment and Transfer) Act 2013

4.

(One Hundred And Fiftieth Amendment) Act 2013

S. NO.

18,39
18

-CONSTITUTIONAL DOCUMENTS-

PAGE NO

1.

Constitutional Assembly Deb 24 May 1949, vol 8.

30

2.

Law Commission, A New Forum for Judicial Appointments (Law Com.


No 11, 1987)

35

3.

Law Commission, Reforms in the Judiciary Some Suggestions (Law


Com No 18, 1958)

37

4.

Law Commission, Reforms in the Judiciary Some Suggestions (Law


Com No 18, 1958)

36

5.

Law Commission, The High Court Arrears-a-fresh look (Law Com No


11, 1958)

36

S. NO.

PAGE NO

-BOOKS-AArvind P Datar, Commentary on the Constitution of India, vol 1 (2nd edn,

1.

Wadhwa and Co 2007)

35

-D-

DD Basu , Comparative Constitutional Law (2nd, Lexis Nexis


2.

Butterworth Wadhwa 2008)

22

Durga Das Basu, Commentary on the Constitution of India , vol 10 (8th


3.

edn, LNBW 2012)

21

-FF S Nariman, Before the Memory Fades: An Autobiography (Hay House


4.

MEMORIAL FOR APPELLANT (UNION OF INDIA)

2010)

28

PAGE 14

Francis Bennion, Bennion on Statutory Interpretation (5th edn, Lexis


5.

29

Nexis 2010)
-GGranville Austin, The Indian Constitution: Cornerstone of a nation (OUP,

6.

31

1972)
-H-

7.

H.M. Seervai, Constitutional Law of India: A Critical Commentary, vol 3 21,23,25,


26,27,28,
(4th edn, Universal Law Publishing Co. 2006)
29,31,32,
33
-MMadhav Godbole, The Judiciary And Governance In India (1st, Rupa Co,

8.

9.

26,37

New Delhi 2009)


M.P Jain, Indian Constitutional Law (6th, LNBW, Nagpur 2010)

23,24,25,
26,27, 33

-SSantosh Paul, Choosing Hammurabi: Debates on Judicial Apointments


10.

S. NO.

36,37

(Lexis Nexis 2013)

-LAW JOURNALS-

PAGE NO

1.

Bernard Schwartz, A Basic History of the U. S. Supreme Court by


Bernard Schwartz; On Law and Justice by Paul A. Freund; The Supreme
Court and Administrative Agencies by Martin Shapiro (1969) 32 (4)
MLR <http://www.jstor.org/stable/1094106>

24

2.

Fali S Nariman, 'The Silences in our Constitutional Law' [2006] SCC


(Jour) J-22, J-23, 25

26

3.

Madhav Khosla , 'The Ninth Schedule Decision: Time to Define the


Constitution's Basic Structure' (2007) 47 32) EPW
<http://www.jstor.org/stable/4419864>

23

4.

Ramaswamy R. Iyer, 'Some Constitutional Dilemmas'(2006) 41 (21) EPW


<http://www.jstor.org/stable/4418260>

23

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 15

5.

Samuel Freeman, 'Constitutional Democracy and the Legitimacy of


Judicial Review, Law and Philosophy' (1990) 9 (4) L & P
<http://www.jstor.org/stable/3504771>

25

6.

S N Jain , 'Issues in Comparative Political Theory: Constituent Power and


DBS (1989) 50 (4) IJPS <http://www.jstor.org/stable/41855461>

23

SP
7.

Sathe,

Appointment

of

Judges(1998)

33(32)

EPW
35

<http://www.jstor.org/stable/4407068>

S. NO.

-MISCELLANEOUS-

PAGE NO

1.

Charles Evans Hughes, (columbia.edu)


<http://c250.columbia.edu/c250_celebrates/remarkable_columbians/charl
es_hughes.html>

23

2.

Jasdeep Randhawa, Undestanding the Judicialization of Mega-PoliticsThe DBS and Minimum Core
<http://www.juspoliticum.com/Understanding-JudicializationOf,411.html>

23

3.

Retired Honble CJI


<http://supremecourtofindia.nic.in/judges/list_retired_chief_justices.htm>

37

4.

SC, Court News: Published by SC of India Vol 7 (4) (Oct-Dec 2012),


<http://supremecourtofindia.nic.in/courtnews/2012_issue_4.pdf>

36

5.

SC, Court News Published by SC of India Vol 7 (3) (July Sept 2012) )
<http://supremecourtofindia.nic.in/courtnews/2012_issue_3.pdf>

36

6.

Vaidya Gullapalli & Jayaprakash Narayan, A National Judicial


Commission Judicial Appointments an Oversight NAC prepared paper,
14.
<http://www.prsindia.org/uploads/media/Judges%20(Inquiry)%20/bill88_
2007100588_Judicial_Commission_NAC.pdf>

35

7.

Venkatesh Nayak, The Basic Structure of the Indian Constitution pg


<http://www.humanrightsinitiative.org/publications/const/the_basic_struc
ture_of_the_indian_constitution.pdf.>

20

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 16

STATEMENT OF FACTS
~I~
The Parliament of India has passed the Constitution (One Hundred and Fiftieth Amendment)
Act, 2013 (Amendment) to further amend the Constitution of India, along with a new act,
the Higher Judiciary (Appointments and Transfer) Act, 2013 (Act) to provide for the
composition of the Judicial Appointments Panel (Panel) for the purpose of recommending
persons for appointment as Chief Justice of India and other Judges of the Supreme Court,
Chief Justices and other Judges of High Courts.
~II~
The Amendment replaces the words 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 with on the recommendation of the Judicial Appointments Panel as referred to
in article 124A, in Article 124 clause 2 (a) of the Constitution, and omits the first proviso
thereof. It also inserts a new article, 124A, which provides that there shall be a Judicial
Appointments Panel, and further prescribes that the Parliament may, by law, provide for, the
composition of the Panel. Necessary changes to the other articles of the Constitution, required
in view of the new article, have also been made under the Amendment.
~III~
In the Bar Association of India v Union of India, a petition before the Honble Supreme Court
of India, the Petitioner challenges the constitutional validity of the Amendment. The
Petitioner also prayed that the Higher Judiciary Act be struck down as unconstitutional, as
consequential relief. The regular bench after framing of the issues opined that the matter
involved remitted the matter for consideration before the Chief Justice, who thereafter
directed that the matter be placed before a special constitutional bench for final arguments.
~IV~
The special constitutional bench of the Honble Supreme Court allowed the petition after
hearing it on merits, thereby setting aside the Amendment, as well as the Act. Aggrieved by
the above judgment of the Honble Supreme Court of India, the Union of India has now
appealed to the Moot Court. The Respondent asks the Moot Court to affirm the decision of
the Supreme Court. The matter is now listed for final arguments.
MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 17

ISSUE RAISED

I.

WHETHER THE SC HAS A POWER TO HOLD AN AMENDMENT TO THE INDIAN


CONSTITUTION INVALID, IF IT WAS MADE IN ACCORDANCE WITH THE PROCEDURE
SET OUT IN ARTICLE 368?

II.

WHETHER THE AMENDMENT AND THE ACT ALTER THE BASIC STRUCTURE OF
THE INDIAN CONSTITUTION, BY DIMINISHING THE INDEPENDENCE OF THE
JUDICIARY?

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 18

SUMMARY OF ARGUMENTS

I.

The SC has no power to hold an amendment to the constitution invalid, if it was


made in accordance with the procedure set out in article 368. It is considered that
an amendment to the Constitution under Article 368 can be questioned when it
violates the DBS. However, in the present proceeding, it is submitted, that the
DBS itself, as outlined by the Court in its previous judgments, rests on a mistaken
interpretation of Constitution and is vague. Further, if any circumstance Court
finds that it is not vague then the SC has power to hold an amendment to the
constitution invalid only to the extent of non fulfillment of amendment making
process and not beyond it.

II.

The Amendment and the Act do not alter the basic structure of the Indian
Constitution by diminishing the Independence of the Judiciary, hence, should be
upheld by the Honble Court. For the justification of this, it is submitted, that the
two decisions those are Second Judge Case and Third Judge Case should be
overruled by the honorable Court. Further, Amendment and the Act are not
against the cardinal principle of the Independence of Judiciary.

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 19

ARGUMENTS ADVANCED

I.

THE SC HAS NO POWER TO HOLD AN AMENDMENT TO THE CONSTITUTION


INVALID, IF IT WAS MADE IN ACCORDANCE WITH THE PROCEDURE SET OUT
IN ARTICLE 368.

An amendment to the Constitution under Article 368 can be questioned when it violates
the DBS.1 In the present proceeding, it is submitted, that the DBS as outlined by the court
in its previous judgments rests on a mistaken interpretation of Constitution and is vague,
hence, should be overruled. Further, if in any circumstance court finds that it is not vague
and arbitrary, then it is submitted, that the SC has power to hold an amendment to the
constitution invalid only to the extent of non fulfillment of amendment making process.
A. The DBS as outlined by the court in its previous judgments rests on a
mistaken interpretation of Constitution and is vague, hence, should be overruled.
1. The test stone of amendment on the basis of DBS is itself vague concept.
It is submitted, that the doctrine evolved in the landmark case of Kesavananda Bharati v
State of Kerala,2 is itself a misreading on the past and a vague concept. In the case of I C
Golak Nath,3 the apex court held that, Some features of the Constitution lay at its core and
required much more than the usual procedures to change them.4 They observed that, A
Constituent Assembly might be summoned by Parliament for the purpose of amending the
fundamental rights if necessary.5
The DBS which hailed no attention towards much more than usual procedure and created an
unexhausted list of immortal features which can neither be amended nor could be excluded
from the list of basic structure. The list is an unfold of never ending principles which can be
brought under basic structure when the judges feel from case to case basis,6 leaving no
guidelines for what can be called under a basic structure. It is impossible for those

Jilubhai Nanbhai Khachar v State of Gujarat And Another, [1995] AIR 142 (SC).
Kesavananda Bharati v State of Kerala [1973] AIR 1461 (SC).
3
I C Golaknath v State of Punjab [1967] 2 SCR 762 (SC).
4
Venkatesh
Nayak,
The
Basic
Structure
of
the
Indian
Constitution
pg
<http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf.>
accessed 9 Januray, 2014.
5
Nayak (n 4).
6
Indira Nehru Gandhi v Raj Narain [1975] 3 SCR 333 (SC).
2

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 20

responsible for amending the constitution to guess what surprise lies in store for them before
SC.7
2. The DBS is itself a self contradictory doctrine.
The power to amend the constitution under Article 368 is not merely a power but the voice of
the popular sovereign. The constituent power is a sovereign power which cannot be
questioned and is only subject to procedure laid under Article 368. The logical view is that
the majority in Keshavananda Bharti Case,8 was erroneous because the judicial review of
laws made by Parliament under Article 368 is review of constituent power.9 The sovereign10,
democratic11, republic12 structure was added in the DBS.13
So also independence of judiciary was brought under the list of DBS.14 The problem arises
since an amendment made to constitution is a sovereign voice viz-a-viz independence of
judiciary both comes under basic structure, which will prevail over the other when two such
features encompassed under the doctrine will collide and how will it be determined?
In the present context, the Amendment in question is a representation of sovereign to bring
accountability in the judicial appointment which comes under Basic Structure is being
hindered by Independence of Judiciary which is also covered under the DBS. Thus the limbs
of the doctrine are self-contradictory to each other since one cannot prevail over another and
no such test or procedure has been identified to solve such a lacuna. The doctrine cannot
allow one to prevail over another as it will defeat the purpose of the doctrine. Thus it is
submitted that the DBS is a self-contradictory concept.
3. The DBS has removed the cap of judicial restraint from judicial
activism, disturbing the balance of the Constitution while violating the
separation of power.

Durga Das Basu, Commentary on the Constitution of India, vol 10 (8th edn, LNBW 2012) 11305.
Keshavananda (n 2).
9
H M Seervai, Constitutional Law of India: A Critical Commentary, vol 3 (4th edn, ULP Co 2006) 3120.
10
Indira (n 6) 2369-71 (Khanna J, Ray CJ, Chandrachud J); see also Keshavananda (n 2) (Mukherjea J, Reddy
J).
11
Keshavananda (n 2) (Sikri CJ). See also Basu (n 7) 11306.
12
Basu, Commentary on the Constitution of India (n 7).
13
Keshavanda (n 2).
14
SP Gupta v UOI, [1982] AIR 149 (SC); Sampath v UOI [1987] AIR 386 (SC); Kumar Padma Prasad v UOI,
[1992] AIR 1213 (SC); Narinjerjit Sahni v UOI [2002] 2 SCC 210 (SC); G.C. Kanungo v State of Orrisa [1995]
AIR 1655 (SC); N Kamnadasan v Ajay Khose, [2009] 7 SCC 1 (SC).
8

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 21

The DBS can be made applicable only to a constitutional amendment and not ordinary
legislation.15 Yet the apex court has applied the doctrine on ordinary legislation in the case of
L Chandra Kumar v Union of India & Ors ,16 has increased the scope of the doctrine on
which no self-restraint or check can be kept. The matter rests entirely with the judiciary or
particular members thereof and not the letter of the constitution.17 It can be concluded that the
true letters of the Constitution is defeated by the doctrine.
In Forum v Federation of Pakistan,18 it was observed that, there is a significant difference
between taking the position that parliament may not amend the salient features of the
Constitution and between the positions that if Parliament does amend these salient features, it
will then be the duty of the superior judiciary to strike down such amendment. The courts
have acknowledged that while there may be a basic structure to the Constitution and while
there may be limitation on the power of parliament to make amendment to such basic
structure, such limitations are to be exercised and enforced not by judiciary but by the body
politics, i.e. the people of Pakistan.
In this context it may be noted that in Syed Zafar Ali Shah v General Parvez Mushraf,19 the
learned Judges of Pakistan SC held that the decision of SC of India in Keshwananda Bharti
Case,20 was not accepted by the SC of Sri Lanka as reported in In Re Thirteenth Amendment
of the Constitution and Provincial Council Bill,21 and by the SC of Malaysia in a case titled
Phang Chin Hock v. Public Prosecutor,22.23 Sajid Ali Shah CJ of Pakistan observed that
there is basic feature of the Constitution of Pakistan which may not be amended by
parliament. He nowhere observes that the power to strike down offending amendments to the
Constitution can be exercised by superior judiciary.
4. The DBS is arbitrary in nature.
The DBS was the result of judicialization of mega-politics in India.24 Keshavananda while
making a strong statement to the effect that basic structure of the constitution cannot be
15

Ashok Kumar v UOI, [2008] 6 SCC 1 (SC).


L Chandra Kumar v UOI, [1997] 3 SCC 261.
17
DD Basu , Comparative Constitutional Law (2nd, LNBW 2008) 317-318.
18
Forum v Federation of Pakistan [2005] PLD 719
19
Syed Zafar Ali Shah v General Parvez Mushraf [2000] PLD 869
20
Keshwananda (n 2).
21
In Re Thirteenth Amendment of the Constitution and Provincial Council Bill [1990] LRC 1
22
Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70
23
Basu, Commentary on the Constitution of India (n 7) 11308.
24
Jasdeep Randhawa, Understanding the Judicialization of Mega-Politics- The DBS and Minimum Core
<http://www.juspoliticum.com/Understanding-Judicialization-Of,411.html> accessed 11 January 2014.
16

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 22

amended by the parliament left the door open by being deliberately vague on the content of
the basic structure.25 For instance, in Keshavanada Bharati Case,26 the DBS was formulated.
The court did not lay down decisively what the basic structure was, thereby leaving it to
decide at its discretion on a case by case basis. Following this decision, the SC has utilized
the doctrine in at least 345 of its decisions, with yet no clear delineation of the doctrine.27
This places a powerful weapon in the hands of the judiciary that enables it to not only to
review certain legislative and executive actions, but also to do so without an established
criterion. The court itself didnt clearly articulate such an adjudicative principle and relied on
an indiscriminate list of protected items, its formulation of the DBS is inconsistent and
unpredictable in its application.28 Thus the concept of basic structure is a nebulous one with
shifting boundaries; and it had no basis in the Constitution. The question which arises here is
Quis custodiet ipsos custodes (who will watch the watchmen)? Thus, such an unguarded,
arbitrary concept is vague.
5. The principle of DBS is in violation of rule of law.
Constitution is what the Judges says it is.29 Judicial review if not exercised by willful
judges desirous of giving effect to their personal views weather of the right or of the left
cannot be undemocratic.30

The judges of the Court are not to pronounce their own

philosophies while interpreting or reading the text of a Constitution. The DBS provides the
wings of liberty to judges to use their own philosophies by way of interpretation in calling for
any feature under basic structure. Since the basic features were not defined and their List was
not foreclosed, the Court could bar any amendment made by constituent body through
inventing a new basic structure.31 The constitution-makers also felt that the judiciary should
not be raised to the level of the super legislature.32

25

Madhav Khosla , 'The Ninth Schedule Decision: Time to Define the Constitution's Basic Structure' (2007) 47
32) EPW <http://www.jstor.org/stable/4419864> accessed 02 December 13
26
Keshavananda (n 2).
27
Ramaswamy
R
Iyer,
'Some
Constitutional
Dilemmas'(2006)
41
(21)
EPW
<http://www.jstor.org/stable/4418260 > accessed 2 December 2013
28
S N Jain , 'Issues in Comparative Political Theory: Constituent Power and DBS (1989) 50 (4) IJPS
<http://www.jstor.org/stable/41855461 > accessed 02 December 13.
29
Charles
Evans
Hughes,
''
(columbia.edu)
<http://c250.columbia.edu/c250_celebrates/remarkable_columbians/charles_hughes.html>
accessed
02
December 13.
30
Seervai (n 9) 2893.
31
Basu , Commentary on the Constitution of India (n 7) 11341.
32
M P Jain, Indian Constitutional Law (6th edn, LNB 2010) 1704.
MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 23

The spirit of the Constitution cannot prevail as against its letter. 33 The chameleon nature of
the Doctrine promotes the status of judiciary to a super legislature in guise to paint the spirit
over the text of the Constitution. Thus, it is submitted, that the DBS is a vague concept.
Since the principle nature of the doctrine is arbitrary it emits unguided disguised power in the
arms of judiciary by way of interpretation which transgress into the amending power of the
Legislation. Such a doctrine disturbs the principle pillar on which Constitution was framed, ie
Rule of Law. It is a dangerous encounter to have a doctrine derived by a Constitutional organ
which supersedes the principle on which the Constitution was itself established.

B. The SC has power to hold an amendment to the constitution invalid only


to the extent of non fulfillment of amendment making process.
If in any circumstance Court finds that the DBS is not vague or arbitrary. Then it is
submitted, that the power of Judicial Review itself is an undemocratic concept that should not
be used by the Court for questioning any law. Even, if it is democratic, then it has only
limited scope to question the Law and not the amendment complied with the procedure set
out under Article 368. Because, limitation to the power of amendment is based on the
misreading of cannons of interpretation
1. The power of judicial review is itself undemocratic concept that should
not be used by the Court for questioning any law.
Judicial review is basically an undemocratic institution.34 The central problem of judicial
review is that, A body that is not elected or otherwise politically responsible in any
significant way is telling the people's elected representatives that they cannot govern as they'd
like.35 Some scholars have asserted that it is usurpation of power by the judiciary as the
Constitution is silent on the point of judicial review.36
The power of judicial review can frustrate even the will of majority which has encompassed
the guarding provisions set out under Article 368. The court is essentially a check of the past
33

Keshavan Madhava Menon v State of Bombay [1951] AIR 228 (SC); The State of Bihar v Maharajadhiraja
Sir Kameshwar, [1952] AIR 252 (SC). See also Jain (n 32) 1719.
34
Bernard Schwartz, A Basic History of the U. S. Supreme Court by Bernard Schwartz; On Law and Justice by
Paul A. Freund; The Supreme Court and Administrative Agencies by Martin Shapiro (1969) 32 (4) MLR
<http://www.jstor.org/stable/1094106> accessed 02 December 13.
35
Samuel Freeman, 'Constitutional Democracy and the Legitimacy of Judicial Review, Law and Philosophy'
(1990) 9 (4) L & P <http://www.jstor.org/stable/3504771> accessed 26 December 2013.
36
Jain (n 32) 1695.
MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 24

upon the present. However, it is the present that represents the will of the people and it is that
will that must ultimately be given effect in a democracy. If the democratic bases of our
system are to be respected, the review power of the one non democratic organ in our
government should be exercised with self-restraint.37
The Indian Constitution is a detailed and elaborate constitution, and the fundamental rights
conferred by it are not couched in absolute terms, but the restrictions to which those rights are
to be subject to have been expressly mentioned. The DBS is a glimpse of judiciary putting
their personal views to frustrate an amendment to the constitution. The evolution of an
undefined doctrine by the Court shows that there is a clear delusion of self-restraint which
has blocked the power of amendment to the Constitution. It is humbly submitted, that the
judicial review in itself is undemocratic in nature and should not be used by the Court for
questioning any law.
2. Amendment complied with procedure set out in Article 368 cannot be
questioned in the Court.
Court in the Third Judge Case38 itself has stated that, Plurality of judges in the formation
of the opinion of the CJI is an inbuilt check against the likelihood of arbitrariness or bias.39
Thus, the opinion of the CJ touching the merit of the decision is not justiciable, only the
decision making process is subject to review.40 The court skipped the touchstone of judicial
review on itself by not questioning the decision making power and process of the collegium.
In Zee Telefilms Ltd Case,41 it was observed that, Once decision making process had been
undergone in terms of the constitutional scheme in its correct perspective, judicial review
may not be maintainable.42 The judiciary cannot declare any provision of the Constitution
invalid or repugnant to the national inspirations of the people.
The validity of a constitutional amendment can only be challenged if it is adopted in a
manner different to the one prescribed by the Constitution,43 and not on substantial ground.
37

Seervai (n 9) 2892.
In Re Presidential Reference, [1999] AIR 1 (SC).
39
Presidential Reference (n 38).
40
N Kannadasan v Ajoy Khose [2009] 7 SCC 1 (SC). See also Jain (n 32) 404.
41
Zee Telefilms Ltd. v UOI, [2005] AIR 2677 (SC).
42
Jain (n 32) 4.
43
Mahmood Khan v Achakzai [1997] PLD 426 (SC); State v Zia-ur-Rehman [1973] PLD 49; Federation of
Pakistan v Saeed Ahmed Khan [1974] PLD 151; Islamic Republic Of Pakistan v Abdul Nali Khan [1976] PLD
57; Federation of Pakistan v United Mills Ltd. [1977] PLD 397 ; Fauji Foundation v Shamim Ahmed Khan
[1983] PLD 456; Kh Muhammad Sharif v Federation of Pakistan [1988] PLD 725; Sharaf Fridi v Federation of
Pakistan [1989] PLD 404
38

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 25

A clear analogy can be drawn that the plurality of the members in the parliament acts as an
inbuilt check against the arbitrary use or abuse of the power granted under Article 368.
Khanna J observed that from 1950 to 1967 parliament had power to amend to amend Part III
so as to abridge Fundamental Rights. Despite the power no such attempt was made to
amendment fundamental rights.44 Thus, it is submitted, that the SC has power to hold an
amendment to the constitution invalid only to the extent of non-fulfillment of amendment
making process and not in substance.
3. The limitation to the power of amendment is based on the misreading
of cannons of interpretation.
The task of the court is to ascertain the limits of the power of the Legislature granted by the
Constitution, and as much the court cannot extend the legislature limit by way of mere
interpretation.45 Fali S Nariman has stated that the opinions first in Golak Nath and then in
Keshavananda were product of divided courts. It was evolved from the great silence in our
constitution. In ascertaining the basic structure theory, the SC has asserted political power-in
the guise of judicial interpretation.46
However, this must be truer of India than United State. Black J and Frankfurter J of the
United SC had stated that, While the language of the Constitution does not change, the
changing circumstances of a progressive society for which it was designed yield new and
fuller import to its meaning. Reference is often made to constitutional amendment. If the
new meaning and content read into provisions of the Constitution by the SC are taken into
account, this would be all the more true.47 Such a remark is a result of the non-restraint on the
power of judicial review and misreading of the rules of interpretation. The meaning and
intent of the framers of the Constitution must be ascertained from the language itself and not
from the motives of those who framed it.48
From saving the constitution from wanton amendment the Court departed from the cannons
of interpretation of a written Constitution and practically vested in itself the amending power
which the Constitution had vested in the body specified in Article 368. 49 In Waman Rao
44

Seervai (n 9) 3131.
Diamond Sugar Mills v State of UP, [1961] AIR 652 (SC). See also CD Jha, Judicial Review of Legislature
Acts (2nd, LNB 2009) 314
46
Fali S Nariman, 'The Silences in our Constitutional Law' [2006] SCC (Jour) J-22, J-23, 25.
47
Madhav Godbole, The Judiciary And Governance In India (1st, Rupa Co 2009) 46.
48
Seervai (n 9) 172.
49
Basu, Commentary on the Constitution of India (n 7) 11341.
45

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 26

Case,50 the Court went on to the extent of undertaking the self-imposed task of distinguishing
between the several fundamental rights enumerated in Part III of the Constitution on the one
hand, and the degree of intrusion into the basic structure, on the other hand. No such power
was vested in the Court by Article 368 either expressly or by implication.
Indian Constitution doesnt afford the same scope of judicial review in India as that to US.51
In interpreting the provisions of our constitution, we should go by the plain words used by the
constitution makers.52 The constitution is to be construed broadly and liberally. 53 Yet the
scope of Article 368 was construed and sub served by the limitations of DBS which in itself
is a vague concept. Thus, it is submitted, that the limitation to the power of amendment is
based on the misreading of cannons of interpretation
On the basis of all the reason stated above, it is submitted that, since the Amendment has
complied with the procedure set out in Article 368 of the Constitution.54 Therefore, this can
neither be questioned nor invalidated by the Court.
II.

AMENDMENT AND THE ACT DO NOT ALTER THE BASIC STRUCTURE OF


THE INDIAN CONSTITUTION BY DIMINISHING THE INDEPENDENCE OF THE
JUDICIARY, HENCE, SHOULD BE UPHELD BY THE HONBLE COURT.

It is submitted, that the two decisions those are Second Judge Case55 and Third Judge
Case56 should be overruled by the honble Court, which were not based on the correct
interpretation of the law. Further, Amendment and the Act are not against the cardinal
principle of Independence of the Judiciary and should be upheld by the Court.
A. The two decisions those are Second Judge Case and Third Judge Case
should be overruled by the honble Court.
Fali S Nariman has said that, If there is one important case decided by the SC of India in
which I appeared and won, and which I have to regret, it is the decision that goes by title
Supreme Court on Record Association v UOI57.58 Since, in the Third Judge Case,59 a
50

Waman Rao v UOI, [1981] 2 SCC 362 (SC).


Jain (n 35).
52
Chiranjit Lal Chowdhuri v the UOI, [1951] AIR 41 (SC) (Mukherja J).
53
Good Year India Ltd. v State of Haryana, [1990] AIR 781 (SC).
54
MP para 1.
55
Supreme Court Advocates-on-Record Association v UOI, [1994] AIR 268 (SC), [1994] MANU 0073 (SC).
51

56
57

Presedential Reference (n 38).


Advocate on Record (n 55).

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 27

few flaws were taken away and the collegium was enlarged, did not fulfill the real object of
the Constitution.
1. SC erred while holding that the Consultation with the CJI refers to
Collegium, thereby leading to the creation of the Memorandum of
Procedure rewrote the provision of the Constitution.
a. No Judgment can, by purporting to prescribe a norm, rewrite
Article 124(2) and if does so would be pro tanto null and void.
No Judgment can, by purporting to prescribe a norm, rewrite Article 124(2) in the manner
following:
[E]very Judge of the SC shall be appointed by the President by warrant under his hand and
seal after Consultation with two/four senior-most judge of the SC and the senior-most Judge
of the SC 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 HC.60
In reality Article 124(2) confers a discretionary power on the President to consult such Judges
of the SC and HC in the States as the President may deem necessary. 61 First, such
Consultation is not obligatory because the President may not deem it necessary to consult
such of the Judges of the SC and HC at all. Secondly, the Consultation is not only with the
Judges of the SC but also with Such of the Judges of the HC in the States. Thus, the Court
failed to differentiate the mandatory obligation of the President to consult the CJI and
discretionary power of the President to consult not only Judges of the SC but of the HC in the
States, if he deemed such Consultation necessary.62
Hence, the President is entitled to consult any Judges of the SC or HC and not two/four
senior-most judges of the SC. Therefore, Judgments by purporting to prescribe a norm,
rewrote Article 124(2) which be pro tanto null and void.
b. No Judgment can, by purporting to prescribe a norm, rewrite
Article 217(1) and Article 222 and if does so would be pro tanto null
and void.
58

F S Nariman, Before the Memory Fades: An Autobiography (Hay House 2010) 389.
Presidential Reference (n 38).
60
Seervai (n 9) 2962.
61
Constitution of India 1950, art 124 (2).
62
Seervai (n 9) 2961.
59

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 28

The Second Judge Case and Third Judge Case held that in matter relating to the
appointment and transfer of the Judges of the HC the CJI requires Consultation with a
plurality of Judges (his colleagues)63 in the formation of his opinion.64 In reality according to
Article 217(1) for the appointment of the HC judge, the President is required to consult the
CJ of the HC. Article 217 (1) imposes no obligation on the CJI to consult any of his
colleague, and similarly it imposes no obligation on the CJ of the HC to consult any of his
colleague and the same is with Article 222. The requirement under Article 222 is only to
consult CJI.65 Therefore, any Judgment which imposes an obligation to consult Judges other
than mentioned in Article 217(1) and Article 222 is violative of those article and pro tanto
void.
2. The word Consultation under Article 124(2), Article 217(1) and Article
222 cannot be interpreted as Concurrence.
Provision of any enactment should be interpreted keeping in view the object sought to be
achieved66 and intention of the framers by enacting the provision.67 [W]ell established rules
of interpretation require that the meaning and intention of the framers of the Constitution be
it a Parliament or a Constitutional Assembly must be ascertained from the language used in
that constitution itself, with the motive of those who framed it, the court has no concern.68
a. Court shown ignorance of the Legislative history and intention of
the framers of the Indian Constitution.
i. Court disregarded the legislative history of Article 124(2) and
Article 217(1).
The legislative history of any provision can be drawn from the CAD. 69 In Constitutional
Assembly Shri B. Pocker Sahib moved the following amendment to draft Article 103 (2)
[Presently Article 124(2) of the Indian Constitution] that every Judge of the SC other than the
CJI shall be appointed by the President by warrant under his hand and seal after Consultation

63

Advocate on Record (n 55) 436.


Presidential reference (n 38).
65
Seervai (n 9) 2963.
66
V Ramakrishna Rao v Singareni Collieries Company, [2010] 10 SCC 650 (SC).
67
Mr Justice Chandrashekaraiah v Janekere C Krishna and Ors, [2013] AIR 726 (SC). See also Francis
Bennion, Bennion on Statutory Interpretation (5th edn, Lexis Nexis 2010) 544.
68
In Re the Central Provinces and Berar Act, (1939) 1 F C R 18. See also Seervai (n 9) 2940.
69
Travancore-Cochin v Bombay Co Ltd [1952] AIR 366 (SC); Automobile transport v. State of Rajasthan [1962]
AIR 1406 (SC); S R Chaudhuri v State of Punjab [2001] AIR 2707 (SC).
64

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 29

with the Concurrence of the CJI.70 He gave the same emphasis on Concurrence to draft
Article 193 [Presently Article 217(1) of the Indian Constitution].71

Similarly, Mr. Mahboob Ali Baig Sahib proposed the following amendment that in the first
proviso to Clause (2) of Article 103, for the words the CJI shall always be consulted, the
words 'it shall be made with the concurrence of the CJI shall be substituted.72

However, all the above amendments were rejected in the Constituent Assembly. Further, Dr
B R Ambedkar while winding up the debate on this topic concerning judiciary stated, that
with regard to the question of concurrence of the CJ, that to allow the him practically a veto
upon the appointment of Judges is really to transfer the authority to the Chief Justice which
we are not prepared to vest in the President or the Government of the day and considered it as
a dangerous preposition. 73
Therefore, the entire debate on this relevant topic in the Constituent Assembly, the rejection
of the proposed amendments and the reply given by Dr. B.R. Ambedkar, in the same
context, are the implication of the fact that the framers of the Constitution designedly used
the expression Consultation instead of Concurrence. Hence, Court disregarded the legislative
history of Article 124(2) and Article 217(1).
ii. Court overlooked the relevant legislative history of Article 50 of
the Indian Constitution.
The State shall take steps to separate the judiciary from the executive in the public service of
the State.74 In the Second Judge Case It was stated that, When the concept of separation of
the judiciary from the executive is assayed and assessed that concept cannot be confined only
to the subordinate judiciary, totally discarding the higher judiciary.75 The judges who gave
importance to Article 50 did not take the consideration of its genesis. The public Service of
the State in Article 50 refers to magistrates trying criminal cases while holding executive
office. High Court and Supreme Court judges do not belong to any service.76 Hence, taking
them under the umbrella of Article 50 and giving the last word to the CJ of HC in appointing
70

CA Deb 24 May 1949, vol 8.


Seervaai (n 9)2945.
72
CA Deb 24 May 1949, vol 8.
73
CA Deb 24 May 1949, vol 8.
74
Constitution of India 1950, art 50.
75
Advocate on record (n 55).
76
Seervial (n 9) 2931.
71

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 30

HC Judge and the CJI in appointing SC Judge itself shows the ignorance of its legislative
history.
b. Court misinterpreted the ordinary English Words and gave last
word to the CJI in appointing the judges.
Constitutional Assembly envisaged the Judiciary as a bastion of rights and the justice.77
However, it does not mean that it has got the power of misinterpreting it. Lord Wright in
James v Commonwealth,78 observed that, a Constitution must not be construed in a narrow
or pedantic manner, and that construction most beneficial to the widest possible amplitude
of its power must be accepted.79
In In re the C P & Berar Act 1938,80 after quoting the above observation of Wirght L,
Gwyer CJ observed that, a broad and liberal spirit should inspire those whose duty it is to
interpret the constitution; but I do not imply by this that they are free to stretch or pervert the
language of the enactment in the interest of any legal or constitutional theory, or even for the
purpose of applying omissions or of correcting supposed error.81
In Babua Ram v UP,82 K. Ramaswamy J observed that, when two or more interpretation are
possible, the task of the court would be to find which one or the other interpretation would
promote the object of the statute, serve its purpose, preserve its smooth working and prefer
the one which promote the object to the other which introduces uncertainty.83
In the Second Judge Case Court stated that CJI should have the last word in appointment of
the judges while taking support from the judgment of Krishna Iyer J in Shamsher Singh &
Anr v State Of Punjab,84. However, Court did not take Krishna Iyer J observation in UOI v
Sankal Chand Himatlal Sheth,85 where he observed that, Consultation according to
dictionary (Stroud Law Lexicon) is taking counsel, seeking advice. To consult is to apply
somebody for guidance or direction86 Further, he observed that, although the opinion of

77

Granville Austin, The Indian Constitution: Cornerstone of a nation (OUP, 1972) 175.
James v Commonwealth [1936] AC 526.
79
James (n 78), See also, Pathumma v State of Kerala [1978] AIR 771 (SC); Indian Cement Ltd. v State of
Tamil Nadu [1990] AIR 85 (SC); Life Insurance Corp of India v. Mnaubhai D Shah [1993] AIR 171 (SC).
80
Berar Act (n 68).
81
Seervai (n 9) 2940.
82
Babua Ram v UP, [1995] 2 SCC 689 (SC).
83
Babua (n 82) 712.
84
Shamsher Singh v State Of Punjab, [1974] AIR 2192 (SC).
85
UOI v Sankal Chand Himatlal Sheth, [1977] AIR 2328 (SC).
86
Sankal Chad (n 85) 2379.
78

MEMORIAL FOR APPELLANT (UNION OF INDIA)

PAGE 31

CJI may not be binding on the Government it is entitled to great weight and is normally be
accepted by the government. If the Government departs from the opinion of CJI it has to
justify its action by giving cogent and convincing reasons.87
Since, the Court misinterpreted the ordinary English word and did not give consideration to
the relevant observation made in other Landmark cases. Therefore, it is submitted that the
conclusion reached by Court that the last word must remain with the CJI is not correct and
untenable.
c. The effect of the word Consultation being used at three places in
Article 217(1) was overlooked in the aforementioned two decisions.
The word Consultation appears at three places in Article 217(1). A HC judge is to be
appointed by the President in Consultation with (1) The CJI; (2) the CJ of the State HC; (3)
the Governor of the State. The word Consultation must have the same meaning in all the
three places in Article 217(1). If the word Concurrence substituted for the word Consultation
in all the three places it would mean that all the three authorities in Article 217(1) must
concur for the proposed appointment, which is directly contrary in the conclusion in the
majority judgment that the CJI had the last word in the appointment of the HC judge.88
The use of the word Consultation at three places in article 217(1) establishes that the word
Consultation can never be interpreted as Concurrence and was overlooked in the majority
judgment.
d. Article 124(2) itself shows that the Consultation there prescribed is
not a Concurrence.
Article 124(2) states that the CJI will always be consulted for the appointment of the puisne
Judge of the SC. It is agreed that that the words as the President may deem necessary mean
that the President may not deem it necessary in some case, yet, he may is some cases (1)
deem it necessary to consult such of the judges of the SC and/or (2) one or more Judges of
the HC in the State before making such appointment.

87
88

Sankal chad (n 85) 2384.


Seervai (n 9) 2952.

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Then if one or more the judges consulted by the President do not concur in a proposed
amendment to the SC, the appointment cannot be made.89 Therefore, in Article 124 (2) the
word Consultation cannot mean Concurrence.
B. Amendment and the Act are not against the cardinal principle of the
Independence of Judiciary.
1. Detailing the Composition of the JAP under the Act and not under
the Amendment is justified and nowhere affects the Independence of
the Judiciary.
Article 246 (1) of the Constitution provides the Parliament a legislative competence to pass
any law the matter regarding which comes under Union List.90 Entry 77 of Union List
provides the constitution and organization of SC,91and Entry 78 states the same for HC,92
thus, comes under the legislative competence of the Parliament.
Each entry should be read not in narrow or pedantic sense but in most liberal and widest
possible sense.93 Hence, it will also include the Composition of JAP and its duties for
selecting the best and most suitable person available for the appointment. Section 3 of the
Amendment cannot be interpreted to mean that they prohibited the legislature from
establishing JAP not covered by Article 124A, as long as there is legislative competence
under the appropriate Entry in the Seventh Schedule.94
Further, the fear that statute does not have to pass the test of basic structure, 95 will make it
problematic to bring even a minor change by way of special amendment. This will lead to
increase judicial burden and practical inconvenience. Thus, it is on the discretion of the
Parliament to bring the composition under Amendment through Article 368 or in Act
through Article 246 (1). Further, this is a policy matter that has been framed after consulting

89

Seervai (n 9) 2953.
Constitution of India 1950, art 246 (1).
91
Constituion of India 1950, Sch 7 List I Entry 77.
92
Constituion of India 1950, Sch 7 List I Entry 77.
93
Navinchandra Mafatlal v Commissioner of Income Tax Bombay, [1955] AIR 58 (SC). See also Hans Muller v
Superintendent, Presidency Jail Cacutta, [1955] AIR 367 (SC); Welfare Association ARP v Ranjit P Gohil,
[2003] AIR 1103 (SC); Jain (n 32) 574.
94
UOI v Delhi High Court Bar Association, [2002] 4 SCC 275 (SC). See also State of Karnataka v
Vishwabharathi House Building Cooperative Society, [2003] 2 SCC 412 (SC).
95
Kuldip Nayar v UOI, [2006] AIR SC 3127 (SC). See also UOI v Madras Bar Association, [2010] 11 SCC 1
(SC).
90

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technical experts in the best interest of the people and, therefore, does not call for any
interference by this Court in exercise of its power of judicial review.96
A statute vesting discretionary power cant be stuck down merely on the ground that there is
a possibility of the discretion being exercised arbitrarily or misused.97. The presumption is
that, though one organ can by its action paralyze the functions of the other organs and make
the Constitution come to a standstill, yet no Constitution proceeds on the assumption that one
organ will act in such a way as to defeat the actions of the other.98
The validity of a law cannot take into consideration extreme hypothetical examples or
assume that a responsible Legislature would make extravagant use of power.99 Mere
discretion of parliament to appoint composition of JAP by simple majority is not a ground to
question the composition of panel to be brought under the Constitution. There should be an
injury or misuse to be shown on the part of parliament to question the discretion. It is evident
that there are no instances to prove that the appointment and composition of the Panel has
been disturbed by the Parliament.
Thus, it is submitted that detailing the Composition of the JAP under the Act and not under
the Amendment is justified.
2. The composition of the JAP is efficient, well organized and coherent.
The composition of panel is based on adequate representation of three organs of the State.
The problem with the judiciary as an organ is that it is not elected by legislature or executive
and thus is in no way accountable to the people. The composition of the panel provides
accountability and voice of every organ to determine the appointment of judges thus
providing checks and balances to the appointment system. The panel by way of including the
CJI, two senior most judges of the SC, the Union Minister, one representative of the legal
profession, two eminent persons is a representation of blend of legal expertise coordinated
with experience.
96

Divisional Manager, Aravali Golf Club v Chander Hass, [2008] 1 SCC 683 (SC). See also Kachchh Jal
Sankat Nivaran Samiti v State of Gujarat, [2013] AIR 2657 (SC).
97
Collector of Customs v Nathella Sampathu Chetty, [1962] AIR 316 (SC); State of Rajasthan v UOI, [1978] 1
SCR 1 (SC); AK Sabhapathy v State of Kerela, [1983] Ker 24 (HC); D K Trivedi v State of Gujarat, [1986]
AIR1323 (SC); Hardev Mukherjee v State of West Bengal, [1993]3 SCC 723 (SC); Laxmi Khand Sari v State of
UP, [1981] AIR 873 (SC); Mafatlal Industries v UOI, [1997] 5 SCC 536 (SC); Federation of Railway Officer
Association v UOI, [2003] 4 SCC 289 (SC); Motor Transport v State of M P, [2006] 8 SCC 613 (SC);
Government of A P v P Laxmi Devi, [2008] 4 SCC 720 (SC).
98
Ex Parte Crossman (1924) 267 US 87
99
Bank of Toronto v Lambe (1887) 12 AC 575
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Even, Law Commission in its 121 report stated that, Executive must join in the
participatory model and make its own contribution, more so because it has extensive
resources at its command to investigate and find out all the relevant details concerning any
individual to be appointed as a Judge.100
Section 178 (1) Constitution of the Republic of South Africa provides the South Africa
Judicial Service Commission supports the large executive participation.101 There is
accountability in the system.102 In the US, the political nature of judicial appointments has
never been concealed.103 Further, Possibility of abuse of power104 by the composition is no
ground to hold a composition invalid.
There is always a presumption that the statutory authority would not exercise the power
arbitrarily.105 The Legislature is entitled to hit the evil that exists and is not bound to take
account of new and hypothetical inequalities that may come into existence as time passes or
as conditions change.106 The Act hits the evil of ambiguity and non-accountability which
exists over the judicial appointment procedure by evolving a JAP. It is not necessary that
every detail of the application of law should be laid down in the enactment itself. 107
Therefore, it is submitted that the composition of the JAP is not vague but well efficient, well
organized and coherent.
3. JAP fulfills the purpose of ensuring the proper Checks and Balances
in the Judicial System.
To arrive at this conclusion, it is necessary to get an exact conception of the aim, scope and
object of the whole Act. Coke L, in Heydon's case,108 stated that it is inevitable to analyze :
(1) What was the law before the Act was passed; (2) What was the mischief or defect for
100

Law Commission, A New Forum for Judicial Appointments (Law Com. No 11, 1987) para 7.7.
Constitution of the Republic of South Africa 1996, Section 178 (2) (SA)
102
Vaidya Gullapalli & Jayaprakash Narayan, A National Judicial Commission Judicial Appointments an
Oversight
NAC
prepared
paper,
14.
<http://www.prsindia.org/uploads/media/Judges%20(Inquiry)%20/bill88_2007100588_Judicial_Commission_N
AC.pdf> accessed 5 Novermber 2009.
103
S. P. Sathe, Appointment of Judges(1998) 33(32) EPW <http://www.jstor.org/stable/4407068> accessed 2
December 2013.
104
Moti Ram Dekha v G.M North East Frontier Railway, [1964] AIR 600 (SC). See also BASU, Commentary
on the Constitution of India (n 7) 1413.
105
PU CL v Union of Inida [2004] AIR 1442 (SC).
106
Queenside Hills Co. v Saxl (1945) 328 US 80
107
Ratnakar Rao P v Government of AP, [1996] AIR 2523 (SC). See also State of Bihar v Bihar Chamber of
Commerce, [1996] AIR 2344 (SC); Nair NR v UOI, [2001] 6 SCC 84 (SC). See also Arvind P Datar,
Commentary on the Constitution of India, vol 1 (2nd edn, Wadhwa and Co 2007)102.
108
Heydon's case [1584] 3 W. Rep 16 (Coke L).
101

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which the law had not provided; (3) What remedy Parliament has appointed; and (4) The
reason of the remedy.109
In the present case, the law before the Act was passed was the law laid down in Second
Judge Case and Third Judge Case. The mischief or defect provided in that law was
evident. Court in that law neither provided the balances nor checks. Judiciary was
overburdened with the cases. Law Commission in its report in 1988 estimated that 1482400
were pending.110 As on 30 September, 2012, there were 4407861 cases were pending in the
HC.111
At any given time there are 3 to 4 vacancies in the SC, and 200 to 300 in the 21 HC were
always found. As per 30 September, 2012, there were 6 vacancies in the SC and 274 in 21
HC.112 An administrative task of this magnitude must necessary detracts the judges of the
collegiums from their principle judicial work of hearing and deciding cases.113 Further, there
are no checks. The collegium deliberations are secret, the system is opaque and the choice of
a judge is only known when his name is forwarded to the Government for formal
appointment.114
J S Verma J, a former CJI, who had written the lead judgment in the Second Judge Case
expressed in an interview to the Frontline Magazine published in its issue of October 10,
2008. When asked: You said in one of your speeches that judicial appointments have
become judicial disappointments. Do you now regret your 1993 judgment? Verma J
responded: My 1993 judgment, which holds the field, was very much misunderstood and
misused.115
Now, the remedy appointed by parliament is JAP. The reason is to enable greater
participation of the executive branch in appointing the Judges,

116

so there would be proper

Checks and Balance. Since, Judicial Accountability is a facet of the Independence of the
Judiciary and the mechanism to enforce judicial accountability must also preserve the
109

The Bengal Immunity Company Limited v The State of Bihar, [1955] 2 SCR 603(SC); R M D
Chamarbaugwalla v UOI, [1957] AIR 628 (SC).
110
Law Commission, The High Court Arrears-a-fresh look (Law Com No 11, 1958) para 1.4.
111
SC,
Court
News:
Published
by
SC
of
India
Vol
7
(4)
(Oct-Dec
2012),
<http://supremecourtofindia.nic.in/courtnews/2012_issue_4.pdf> accessed 7 December 2013
112
SC, Court News Published by SC of India Vol 7 (3) (July Sept 2012) )
<http://supremecourtofindia.nic.in/courtnews/2012_issue_3.pdf> accessed 7 December 2013
113
Santosh Paul (ed), Choosing Hammurabi: Debates on Judicial Apointments (Lexis Nexis 2013) 95.
114
Paul (n. 113).
115
Law Commission, Reforms in the Judiciary Some Suggestions (Law Com No 18, 1958) para 1.77.
116
MP para 1.
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Independence of the Judiciary.117 Judgment by ones peers is at least as old as Magna Carta.
However, it is not appropriate that in a Republican State, Judges are finally judged by brother
judges. The People participation is necessary.118Therefore, JAP fulfills the purpose of
ensuring the proper Checks and Balance in judicial system.
4. Act is not required to follow the rule of seniority in the appointment
of CJI.
The question of the appointment of the CJI solely on the basis of seniority arose in 1951
itself, when Prime Minister Nehru considered naming as the new CJI B K Mukherjea (third
in seniority on the court) after the Kanias CJI sudden death. Upon learning that that M P
Sastri, their senior-most colleague, might not be named as CJI, all the SC judges, including
Mukherjea J threatened to resign if seniority did not govern the CJIs successor.119
However, the defect was evident in this rule. As, Fali S Nariman has noted, that he has seen
a many as twenty four different persons occupying the highest judicial post. Some of them
have come and gone as if through revolving door.120 As, in the year 2002, 2004 and 2012,
Gopal Ballav Pattanaik J, S Rajendra Babu J and Altamas Kabir J, former CJI,
occupied the post only for 41, 30 and 465 days respectively. 121 It is against the John G
Roberts CJ of United State SC, who took over in 2006 at the age of 51 years, may have
another 25 years to preside over his court.122 It means a CJ who succeeded in familiarizing
himself with his many tasks become liable to retire before he can have time to put into force
the principle and policies which he considers beneficial.123
This is the reason that Parliament has provided the JAP to recommend persons of ability,
integrity and standing in the legal profession as CJI. 124 It is obvious that succession to an
office of CJI cannot be regulated by mere seniority. For the performance of the duties of CJI,
there is needed, not only a judge of ability and experience, but also a competent administrator
capable of handling complex matters that may arise from time to time.125

117

Paul (n 113) 159.


Paul (n 113) 140.
119
Madhav Godbole (n 47) 513.
120
Madhav Godbole (n 47) 519.
121
Retired Honble CJI < http://supremecourtofindia.nic.in/judges/list_retired_chief_justices.htm > accessed 7
December 2012.
122
Madhav Godbole (n 47) 519.
123
Madhav Godbole (n 47) 512.
124
Higher Judiciary (Appointment and Transfer) Act 2013, s 4.
125
Law Commission, Reform of Judicial Administration (Law Com No 14, 1958) para 5.18.
118

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Even, Third Judge Case stated that, ordinarily one of the four senior-most puisne Judges of
the Supreme Court would succeed the Chief Justice of India, but if the situation should be
such that the successor Chief Justice is not one of the four senior-most puisne Judges, he
must invariably be made part of the collegium.126 It is evident that even Third Judge Case
did not mandate the Seniority rule in the appointment of CJI. What it mandated was the
seniority in the collegium. Therefore, Act is not required to follow the seniority rule in the
appointment of CJI.
5. Act does not exclude the Judicial Review.
Section 9 doesnt debar judicial review. On reading Section 9 of the Act it clearly established
that only on the ground of vacancy or defect in the composition of Panel, judicial review will
not be applicable it nowhere debars the scope of judicial review but only limits its scope. The
resultant appointment of such an appointment is still subject to judicial review and can be
challenged under Section 4.
The scope of judicial review on a Legislative Act is applicable only when the Act is in
violation of the Fundamental Right or lacks Judicial Competence. Section 9 in no way is in
violation of Part III of the Indian Constitution.
In B K Srinivasan v State of Karnataka,127 the clause in question provided that any act done
or appointment made under the Rules shall not be called in question before any Court of law
merely on the ground of some procedural irregularity not leading to any injustice to any
party. The clause did not prohibit parties from questioning the validity of the Rules on the
ground of substantive ultra vires, nor on the ground of procedural ultra vires of a serious
nature, inasmuch as the clause referred to procedural irregularity and not illegality. Further, it
did not prohibit parties from challenging the Rules even in case of minor deviations if the
same lead to injustice. Hence the clause was upheld by the Court. Section 9 of the Act also
used this clause to restrict judicial review which was held valid in the case cited above.
It is permissible to issue directions if the law does not provide a solution of a problem, till the
proper law is enacted by the legislature.128 Further, when a regime of accountability is
126

Presidential Reference (n 38).


B K Srinivasan v State of Karnataka, [1987] AIR 1059 (SC).
128
Chairman, Rajasthan State Road Transport Corporation v Smt Santosh, [2013] 2150 (SC); University of
Kerala v Council, Principals Colleges, Kerala, [2010] AIR 2532 (SC); Kalyan Chandra Sarkar v. Rajesh
Ranjan, [2005] 972 (SC); LK Pandey v UOI and Anr, [1986] AIR 272 (SC); D K Basu v State of WB, [1997]
AIR 610 (SC); Ramamurthy v State of Karnataka, AIR 1997 SC 1739.
127

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available within the Scheme, it is not proper for the Court to strike it down, unless it violates
any constitutional principle.129 Since, the present Amendment is a proper law for the
purpose and no constitutional purpose is being violated by Amendment and Act through
JAP. It will not be proper for the court to strike down them. Therefore, the norms enumerated
in Second Judge Case and Third Judge Case will not be continuing, and the
Amendment should be upheld by the Court.
On the basis of all the reason stated above, it is submitted, that the Amendment and the
Act do not alter the basic structure of the Indian Constitution by diminishing the
independence of the judiciary, hence, should be upheld by the Honble court

129

Bhim Singh v Union if India, [2010] 5 SCC 538 (SC).

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PRAYER

In lights of the facts presented, questions raised, arguments advanced and authority
cited the counsels for the Appellant most humbly and respectfully pray before this
Honble Court, that it may be pleased to adjudge and declare that:
I.

The SC has no power to hold an amendment to the constitution invalid, if it was


made in accordance with the procedure set out in article 368.

II.

The DBS is a vague and arbitrary concept and deserves to be overruled.

III.

The Second Judge Case and Third Judge Case deserve to be overruled.

IV.

Amendment and the Act are not against the cardinal principle of
Independence of Judiciary.

The Appellant thus prays relief that Amendment and the Act should be upheld by the
Honorable Court.
The Appellant additionally prays that the Court may make any such order as it may
deem fit in terms of equity, justice and due conscience. And for this act of kindness
the Appellant shall as duty bound ever humbly pray.

Sd/-

(Counsel for the Appellant)

MEMORIAL FOR APPELLANT (UNION OF INDIA)

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