NJAC AMENDMENT

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace

the present Collegium system of appointing judges.

The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment)

Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.

Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to

regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the

President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment

Act came into force from April 13, 2015.

It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme

Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for

a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader

of the Opposition in the Lok Sabha, and are not eligible for re-nomination.

The Centre had defended the introduction of the new law saying that the two-decade-old collegium

system where judges appointed judges was not free from defects and got the support of the Supreme

Court Bar Association.

Defending the provision for inclusion of two eminent persons, Attorney General Mukul Rohtagi had

said, “If we can have laymen in some other Commissions and Tribunals then why not in the six-

member NJAC.

The Judiciary is one of the important pillars of democracy. It has more onerous responsible than two

other important estates, the Executive and the Legislative. In fact it is the judiciary and the institute
of judiciary that helps the orderly functioning of parliamentary democracy and the exercise of powers

by the various wing of administrative machinery.35 Under the scheme of the Constitution, we are

provided with three tier judicial system.36

The Supreme Court has frequently asserted that all power under the Constitution is limited and subject Commented [1]:

to judicial review. The same limitation, however is not applicable to the newly acquired power of the

Chief Justice of India and the collegium, the court in Second Judge's case having declared that no

judicial review can be entertained by any person aggrieved by the Chief Justice's action e.g. by a

Judge who is transferred from one High Court to another by the collegium.1

However, assuming, but not conceding, that the decision in the 2nd Judges case held that primacy is

part of the basic structure, applying the “identity” and “width” test [See M. Nagaraj at para 102], it

cannot be said that Article 124A violates the basic structure. Article 124A will have to be tested on

the basis of how wide the power conferred by the Amendment is and whether the identity of the

essential feature is destroyed. In other words, if the power provided for by the amendment is so wide

that it destroys the identity of the overarching principle, the amendment is liable to be struck down. Commented [2]:

[See Pramati Educational and Cultural Trust (Registered) and Ors v. Union of India (2014) 8 SCC

1 at para 29]

Article 124A provides for the setting up of the NJAC comprising of 3 judges of the Supreme Court

[the CJI, J1 and J2], 1 member of the executive [the law minister] and 2 eminent persons to be picked

by a collegium comprising of the CJI, Prime Minister and Leader of Opposition (or the leader of the

1
Cyrus Das and K. Chandra . Judge s and Judicial Accountability, 120 (2004).
largest opposition party, as the case may be).

Without going into the NJAC Act, it can be seen that by mandating that 3 out of 6 members of the

NJAC should be judges of the Supreme Court, predominance is still given to the voice of the judiciary

in the matter of appointments. Hence, as the principle of predominance or primacy of the voice of the

judiciary is still maintained even after the Amendment, it cannot be said that the width of the power

conferred by Article 124A destroys the identity of the overarching principle laid down in

the 2nd Judges case. Commented [3]:

In order to preserve judicial primacy, the court can give the CJI, as the chairman of the NJAC, the Commented [4]:

power to overrule the veto in exceptional cases by putting forth cogent and compelling reasons for

the same.

This extract is taken from Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5

SCC 1 : 2015 SCC OnLine SC 964 at page 637 Commented [5]:

(e) Needs of the People

838. It was also submitted by the learned Attorney General that Parliament is aware of the needs of

the people and the people want a change from the Collegium System of appointment of Judges.

Parliament has responded to this demand and this Court should not reject this demand only because

it believes that the Collegium System is working well and that the 99th Constitution Amendment Act

introduces a different system which reduces the role of the judiciary in making appointments by
taking away its primacy in this regard. Commented [6]:

This extract is taken from Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5

SCC 1 : 2015 SCC OnLine SC 964 at page 681

967. Dr Ambedkar was not prepared to accept the opinion of the Chief Justice of India (as an Commented [7]:

individual) as the final word in the appointment of Judges. This is because the Chief Justice of India

has frailties like all of us. The apprehension of Dr Ambedkar was allayed by the Second Judges

case [Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Nine-Judge

Bench)] and the Third Judges case [Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Nine-

Judge Bench)] which made it mandatory for the Chief Justice of India to express a collective opinion

and not an individual opinion. The collective and unanimous opinion (duly reiterated if necessary)

would bind the President being the collective and unanimous opinion of persons who were ex

hypothesi “well qualified to give proper advice in matters of this sort”. However, the 99th

Constitution Amendment Act and the NJAC Act reversed the process well thought out in the Second

Judges case [Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Nine-

Judge Bench)] and the Third Judges case [Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739

(Nine-Judge Bench)] and have taken away the constitutional authority of the Chief Justice of India

and placed it on a platter for NJAC to exploit.

The system of the Collegium, the product of an interpretative gloss on the text of Articles 124 and Commented [8]:

217 undertaken in the Second [Supreme Court Advocates-on-Record Assn. v. Union of India, (1993)

4 SCC 441 (Nine-Judge Bench)] and the Third [Special Reference No. 1 of 1998, In re, (1998) 7 SCC

739 (Nine-Judge Bench)] Judges case may or may not be the best to establish and nurture an
independent and efficient judiciary. There are seriously competing views expressed by eminent

people [Seefootnotes 725 to 732, above.] , both on the jurisprudential soundness of the judgments

and the manner in which the Collegium System operated in the last two decades
ARGUMENTS ADVANCED

An executive role in only the appointment process does not imply a disregard for the independence
of the Judiciary as a whole.
The main contention that Counsel is presenting is that independence of judiciary is at stake.

In Kartar Singh v. State of Punjab [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC
(Cri) 899 (Five-Judge Bench)] it was said by K. Ramaswamy, J. (dissent) that an independent
judiciary is the most essential attribute of the Rule of Law: (SCC p. 737)
“412. Independent judiciary is the most essential attribute of rule of law and is indispensable to
sustain democracy. Independence and integrity of the judiciary in a democratic system of
Government is of the highest importance and interest not only to the Judges but to the people at
large who seek judicial redress against perceived legal injury or executive excesses.” [Id, para 412]

Venkataramiah, J. expressed the view that it is difficult to hold that if the appointment of Judges is
left to the executive, it will impair the independence of the judiciary. The learned Judge was of the
view that it is only “after such appointment the executive should have no scope to interfere with the
work of a Judge” [Id, p. 791, para 1033]2 Commented [9]:

In Bhim Singhji v. Union of India [Bhim Singhji v. Union of India, (1981) 1 SCC 166 (Five-Judge
Bench)] to contend that for a constitutional amendment to violate the basic structure, it must be
shocking, unconscionable or an unscrupulous travesty of the quintessence of equal justice.

There is no doubt or dispute that the independence of the judiciary is a basic structure of the Commented [10]:
Constitution. I have already held that the appointment of a Judge to the Supreme Court and a High
Court is an integral part of the independence of the judiciary.

It is true that the quality of justice depends upon the independence enjoyed by the judiciary. It is
very necessary that the court should be allowed to perform its function in an atmosphere of
independence and it should be free from all kinds of political pressures.

Involvement of the executive, or politicians if you may like to call that, which is the foundation of
these Judgements, is not necessarily a bad thing unless the executive of the day seeks to pack the
judiciary with judges who are loyal to its values and quality of judges is scarified.

It may be noted that in other common law jurisdictions, say U.K., Australia, Canada, New Zealand
and the United States the initial appointment at the entry stage is by executive and the people of
these countries are no less zealous of preserving judicial independence.

When one speaks of judicial independence, one must consider more the post-appointment
safeguards under the Constitution. Our judicial system has been based in the British system.
Judicial appointments in the United Kingdom are a matter of Executive. Merely because the
appointing authority belongs to one branch of the constitutional set-up does not mean that the
independence of the judiciary has in any way been impaired.
In India the executive power is vested in the President and the Governor. The power of appointment
of members of the judiciary is also lodged in them but the exercise of that power is controlled and
regulated by certain provisions requiring consultations.

2
Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015 SCC OnLine SC
964 at page 606
Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s
worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of
appointments is not a predominant constitutional feature in other parts of the world, for example, Commented [11]:
The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from
the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay
people including the Chairman.

The power of the executive in the NJAC has been diluted as there is only one representative that is
Law Minister in it in contrast to three Supreme Court judges. Commented [12]:

Parliament never intended to dilute the independence of judiciary. "It never intended to take away Commented [13]:
the primacy of judiciary in judges' appointment. That is why it provided that three Supreme Court
judges, including the Chief Justice of India, would be the largest conglomerate in the six-member
NJAC Commented [14]:

Furthermore, Ahmadi J., in his dissenting opinion, also recognized the role of the executive in
appointing judges. He observed:
“It must be remembered that in the process of selection of candidates for appointment to the
superior judiciary of the country every effort must be made both by the executive wing as well as the
judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases
there is no reason why it should not be possible. The executive and the judiciary do not work at
cross purposes, in fact their objective is common and, therefore, it would really be surprising if
there is lack of understanding in a wide range of cases between them.” [para 292] (2ND JUDGES
CASE)

The fear that the executive might use the authority vested on it to appoint pliant judges favourable
to its government’s outlook is well founded. But, the National Judicial Appointments Commission,
established through the 99th Constitutional Amendment, does not permit such excessive authority.
It’s a six-member commission heavily tilted in favour of according the judiciary a significant say in
matters of appointment. It not only comprises the three most senior judges of the Supreme Court,
but it also accords the Chief Justice of India a vote in determining the two eminent persons to be
nominated on the commission. If Parliament were by law to modify the mode of the Commission’s
workings (through an exercise of its powers under the newly introduced Article 124-C) in a manner
contrary to the Constitution’s express provisions or in a manner that impinges the independence of
the judiciary, the Supreme Court will always be free to declare such legislation void.

It has been stated in the 14th Report of LCI that the selection of Judges is of pivotal importance to
the progress of the nation and that responsibility must be exercised with great care.

Justice Chelameswar dissenting from the majority view held that the presence of the Law Minister
in the NJAC confers only one sixth of the voting power and hence his inclusion does not undermine
independence of the judiciary.3 Justice Chelameswar also held that the Law Minister represents the Commented [15]:
executive with a vast administrative machinery under its control and is capable of making enormous
and valuable contribution to the process of selection of Judges of the Supreme Court and High

3
SCAOR II (n 3) 1218.
Courts and to eliminate the executive from the process of selection would be inconsistent with the
foundational premise that the Government comprises elected representatives of the people in a
democracy.4 Commented [16]:

Regarding nomination of two eminent persons under clause (d) of Article 124A, Justice
Chelameswar took the view that that the nomination of two eminent persons will not affect
independence of the judiciary if sufficient safeguards against possible abuse of the power of the
Committee to nominate eminent persons are in place. In any case the nomination of eminent
persons to the NJAC will be subject to judicial review.5

Fazal Ali J also considered that giving the final say to the chief justice would lead to absolutism.6 Commented [17]:
Interestingly this part of Fazal Ali J's, observation has not been considered in the Second Judges'
case. Ali J, also took the view that the system of vesting appointments on the President through the
council of ministers made the appointments accountable to the people.7

4
id.
5
ibid [1223] - [1226].
6
S. P. Gupta v. Union of India, ion of India, (1981) Supp SCC 87.
7
Id. 410-11
In Subhash Sharma v. UOI,8 a three judge bench of the Supreme Court expressed the view that “it

becomes imperative that the role of the institution of the Chief Justice of India be recognised as of

crucial importance in the matter of appointments of the Supreme Court”.

In SC Advocates on Record Association v. UOI, the majority opinion was that The court considered

the question of the primacy of the opinion of the Chief Justice of India in regard to the appointment

of the Supreme Court Judges. The Court emphasised that the question has to be considered in the

context of achieving “the constitutional purpose of selecting the best” suitable for the composition

of the Supreme Court “so essentially to ensure the independence of the judiciary, and thereby, to

preserve the democracy.”9

Court has also observed that in the choice of a candidate suitable for appointment, the opinion of the

Chief Justice of India should have the greatest weight.

Further the Court has said that the principle of non-arbitrariness is an essential attribute of the Rule

of Law and is all pervasive throughout the Constitution. An adjunct of the principle is the absence

of the absolute power in one individual in any sphere of constitutional activity. Therefore, the

meaning of the “opinion of the Chief Justice” is “reflective of the opinion of the judiciary” which

means that “it must necessarily have the element of the plurality in its formation”.

Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56 and Samsher Singh v. State of

Punjab [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge

Bench)] , opined that although the opinion of the Chief Justice of India may not be binding on the

Government it is entitled to great weight and is normally

8
AIR 1991 SC 631.
9
AIR 1994 SC at 425.
to be accepted by the Government…. [ SCC p. 273, para 115 of Sankalchand case, (1977) 4 SCC

193, Krishna Iyer, J.] with a caveat: (Sankalchand case [Union of India v. Sankalchand Himatlal

Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench)] , SCC p. 274, para 115)

“115. … It must also be borne in mind that if the Government departs from the opinion of the Chief

Justice of India it has to justify its action by giving cogent and convincing reasons for the same and,

if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the

advice of the Chief Justice of India.

Finally, it was submitted by the learned Attorney General that the passage of time over the last over Commented [18]:

sixty years has shown that the system of appointment of Judges that was originally operational (in

which the executive has the “ultimate power”) and the Collegium System (in which the judiciary

had shared responsibility) had both yielded some negative results. It was submitted that millions of

cases are pending, persons who should have been appointed as Judges were not recommended for

appointment and persons who did not deserve to be Judges were not only appointed but were

brought to this Court. The 99th Constitution Amendment Act seeks to correct the imbalances

created over a period of time and since constitutional experiments are permissible, the 99th

Constitution Amendment Act should be allowed to pass muster.

In State of W.B. v. Anwar Ali Sarkar [State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR

1952 SC 75 (Seven-Judge Bench)] it was acknowledged by Mehr Chand Mahajan, J. that good faith

and knowledge of existing conditions on the part of the Legislature has to be presumed.

Simultaneous with the above amendments in the Constitution, the NJAC Act was passed by

Parliament. The NJAC Act provides for recommending the senior most Judge of the Supreme Court

as the Chief Justice of India “if he is considered fit to hold the office” and for recommending names
for appointment as a Judge of the Supreme Court persons who are eligible to be so appointed.

Interestingly, NJAC “shall not recommend a person for appointment if any two members of the

Commission do not agree for such recommendation” (Section 5 of the NJAC Act). Commented [19]:

In the case of Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 : 2015

SCC OnLine SC 964 at page 660, majority onion was that The sum and substance of this discussion Commented [20]:

is that in principle, there can be no objection to consultation with eminent persons from all walks of

life in the matter of appointment of Judges, but that these eminent persons can veto a decision that

is taken unanimously or otherwise by the Chief Justice of India (in consultation with other Judges

and possibly other eminent persons) is unthinkable—it confers virtually a monarchical power on the

eminent persons in NJAC.

There was a complete lack of accountability on the part of Judiciary. The Second Administrative

Reforms Commission, under the Chairmanship of Mr. Verappa Moily, had also noted that, “Perhaps

in no other country in the world does the judiciary have a final say in its own appointments. In

India, neither the executive nor the legislature has much say in who is appointed to the Supreme

Court or the High Courts.”10

The recommendation would finally be made to the President. Hence the NJAC gives much more Commented [21]:

primacy to the executive, rather than the judiciary. Secondly, to some extent it can also be said that

the problem of judicial accountability may also have been solved as the judiciary would now be

accountable to the executive in the matter of its appointments.

Hence, Article 124A of the Constitution in the NJAC Act in so far as it provides that the NJAC will Commented [22]:

comprise three judges and three non-judicial members would destroy the basic structure or

10
Page 50, Fourth Report, ‘Ethics in Governance’, Second Administrative Reforms Commission.
framework of the Constitution. In my view, however, the majority of judges were not correct in

holding that the inclusion of Union Minister for Law and Justice in the NJAC was destructive of the

basic structure or framework of the Constitution. The Union Minister for Law and Justice represents

the Council of Ministers in the NJAC and the Council of Ministers who are elected by the people

and are accountable to the people through Parliament.

Separation of powers with the system of checks and balances is one of the most characteristic Commented [23]:

features of our constitutional scheme. As has been observed by the Hon’ble Chief Justice

Balakrishnan, 'the Constitution lays down the structure and defines the limits and demarcates the

role and function of every organ of the State including the judiciary and establishes norms for their

inter relationships, checks and balances.'

 ARGUMENTS ADVANCED

1. The NJAC Amendment is Constitutionally valid and should be added to the Constitution

as Article 124A, 124B and 124C.

It is submitted before the Honourable Supreme Court that the NJAC Amendment is constitutionally

valid and should be added as Article 124A, 124B and 124C. On 16th October 2015, the Supreme

Court by a majority of 4:1 struck down the NJAC Act, 2014 meant to replace the two-decade old

collegium system of judges appointing judges in the higher judiciary. However, a recent Amendment

in Article124A restores the validity of the Act.

(A.) Amendment in NJAC is constitutionally Valid.

It is submitted before this Honourable Supreme Court that the recent amendment in the NJAC Act

under Article 124A is :

1. Assigning veto power only to Chief Justice of India in the NJAC.

2. The power to recommend the candidate is entrusted in 3 member body is qualified.

1. Assigning veto power only to Chief Justice of India in the NJAC restore its validity.

The second provision to Section 5 (2)11 and sub-section (6) of Section 612 of the NJAC Act provide

that the NJAC shall not recommend a person for appointment as a judge of the Supreme Court or

High Court if two members of the NJAC do not agree with such recommendation. In the NJAC

Judgement,13 the majority held that this veto power will affect the independence of the judiciary and

is accordingly ultra vires.

However, the recent amendment to the NJAC Act in Article 124A, gave only Chief Justice of India

a veto power under which he can revert back the recommended candidate. In Subhash Sharma v.

UOI, a three judge bench of the Supreme Court expressed the view that “it becomes imperative that

11
National Judicial Appointment Commission Act, 2014, sec. 5(2).
12
National Judicial Appointment Commission Act, 2014, sec. 6(6).
13
Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
the role of the institution of the Chief Justice of India be recognised as of crucial importance in the

matter of appointments of the Supreme Court”.

Chief Justice of India being the only beneficiary of the veto power over the other 5 members of the

commission ensures the crucial importance of him in the appointments of the judges.

In SC Advocates on Record Association v. UOI, The Court has said that the principle of non-

arbitrariness is an essential attribute of the Rule of Law and is all pervasive throughout the

Constitution. An adjunct of the principle is the absence of the absolute power in one individual in any

sphere of constitutional activity. Therefore, the meaning of the “opinion of the Chief Justice” is

“reflective of the opinion of the judiciary” which means that “it must necessarily have the element of

the plurality in its formation”.14

2. The power to recommend the candidate is entrusted in 3 member body is qualified.

The power of veto entrusted in Chief Justice of India is qualified in the sense that, CJI can revert back

the candidate recommended once, but if the law minister and two eminent persons recommend again,

he has to accept the candidate and the decision would be in hand of 3 member body which comprises

of Law Minister and the other two eminent persons but they would be accountable for their decision

and reasoning behind recommending the candidate again after CJI has exercised his veto power. It is

pointed out in the case of Union of India v. Sankalchand Himatlal Sheth15, It must also be borne in

mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its

action by giving cogent and convincing reasons for the same and, if challenged, to prove to the

satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of

India.

Hence, the 3 member body is answerable for their conduct if their opinion departs from the opinion

of Chief Justice of India, the body has to justify its action by giving cogent and convincing reasons

14
In re Special Reference No.1 of 1998 (1998) 7 SCC 739
15
for the same. The First Law Commission of India (LCI) came out with its comprehensive, and

legendary, 14th Report on Reforms on the Judicial Administration, which stated the selection of

Judges is of pivotal importance to the progress of the nation and that responsibility must be exercised

with great care.16 This principle implies that the three member body would have to exercise great care

while deciding on the on the veto power of CJI.

Also, This Amendment signifies executive participation along with the judiciary. The NJAC would

consist of six members – the Chief Justice of India, the two most senior judges of the Supreme Court,

the Law Minister, and two ‘eminent persons’. These eminent persons would be nominated for three-

year terms by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the

Opposition in the Lower House, and would not be eligible for re-nomination. There was a complete

lack of accountability on the part of Judiciary. The Second Administrative Reforms Commission,

under the Chairmanship of Mr. Verappa Moily, had also noted that, “Perhaps in no other country in

the world does the judiciary have a final say in its own appointments. In India, neither the executive

nor the legislature has much say in who is appointed to the Supreme Court or the High Courts.”17

Furthermore, the NJAC Act, by virtue of the various provisions therein, lays down the procedure to

be followed while making the appointments which involves the process of consultation amongst the

various governmental bodies involved in the process, along with the veto powers which ensures some

amount of accountability and transparency.

(B.) NJAC Amendment Act does not violates Basic Structure of Constitution and should

be added to Article 124A, 124B and 124C.

16
1st law report
17
Page 50, Fourth Report, ‘Ethics in Governance’, Second Administrative Reforms Commission.
It is submitted before the Honourable Supreme Court that NJAC Amendment Act does not violates

Basic Structure of Constitution and is hence not null and void.

The majority of the judges in Keshavananda Bharati v State of Kerala18 have held that under Article

368 of the Constitution, Parliament has power to amend any part of the Constitution but cannot alter

the basic structure or framework of the Constitution. Independence of the Judiciary is a basic structure

or framework of the Constitution19. According to the majority, judicial primacy in appointments—

that is, giving the Chief Justice and other Justices the determinative role in the selection of judges—

is integral to the judiciary’s independence.20

In Bhim Singh v. Union of India, the court stated that to contend that for a constitutional amendment

to violate the basic structure, it must be shocking, unconscionable or an unscrupulous travesty of the

quintessence of equal justice.21 An executive role in only the appointment process does not imply a

disregard for the independence of the Judiciary as a whole and it is not shocking or unconscionable

of equal justice. It may be noted that in other common law jurisdictions, say U.K., Australia, Canada,

New Zealand and the United States the initial appointment at the entry stage is by executive and the

people of these countries are no less zealous of preserving judicial independence.

The fear that the executive might use the authority vested on it to appoint pliant judges favourable to

its government’s outlook is well founded. But, the National Judicial Appointments Commission,

established through the 99th Constitutional Amendment, does not permit such excessive authority.

It’s a six-member commission heavily tilted in favour of according the judiciary a significant say in

matters of appointment. It not only comprises the three most senior judges of the Supreme Court, but

it also accords the Chief Justice of India a vote in determining the two eminent persons to be

nominated on the commission and it also gives Chief Justice of India a special privilege under which

he can veto over the appointment of a candidate.

18
Keshavananda Bharati v State of Kerala (1973) 4 SCC 225.
19
Supreme Court Advocates on Record Association and ors v Union of India (1993) 4 SCC 441 [421].
20
NJAC Judgment, 4 SCC at 341.
21
Bhim Singh v. Union of India, (1981) 1 SCC 166.
Article 124C cannot be challenged for suffering from the vice of excessive delegation insofar it

delegates the power to frame regulations on the NJAC. Independence of the judiciary does not

connote independence from Parliamentary law. In fact, this was a proposition that was expressly

rejected by the framers of the Constitution. Due regard must be had to Article 5022 in this context.

Article 50, which is one of the Directive Principles of State Policy, states that “The State shall take

steps to separate the judiciary from the executive in the public services of the State.”

Shri KM Munshi on 23rd May 1949 opposed the inclusion of Article 102A stating that:

“This Constitution is based on an entirely different principle, adopting the British Model. 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 compartment of powers

have been rejected. That is with regard to separation of powers.”23

Evidently, the framers of the Constitution did not envisage the inclusion of a standalone article which

would have enforced a strict separation of powers between the three branches of government. In State

of W.B. v. Anwar Ali Sarkar,24 it was acknowledged by Mehr Chand Mahajan, J. that good faith and

knowledge of existing conditions on the part of the Legislature has to be presumed. A construction

of judicial independence which seeks independence from Parliament, or Parliamentary law would

anyway be an anomaly given the framework of our Constitution.

In light of the above, it is submitted that Article 124C is not violative of the independence of the

judiciary. In fact, it is an attempt to put flesh and blood into the skeletal structure that the 99th

Amendment seeks to create.

22
23
Constituent Assembly Debates, Vol. VIII, Book 3, p. 220-221.
24
State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75.