Supreme Court

Supreme Court
Introduction - Judiciary
• Unified Judiciary
• Important role to play in a
Constitutional/Federal/Democracy
• Interpretation of the Constitution
• Safeguarding the supremacy of the Constitution
• To decide federal disputes
• Protection of fundamental rights
Supreme Court of India
• Composition (Art. 124 (1))
• Chief Justice of India
• Other judges – number to be decided by a Parliamentary law
• Supreme Court (Number of Judges)Act, 1956 – 2019 Amendment – 33
excluding the CJI
• Seat of Supreme Court (Art. 130)

• The Supreme Court shall sit in Delhi or in such other place or places, as
the Chief Justice of India may, with the approval of the President, from
time to time, appoint.
• Union of India v. S. P. Anand (1998) – Only an enabling provision – not
mandatory
Supreme Court of India
• Qualification for appointment as a Judge Article 124 (3)
• A person shall not be qualified for appointment as a Judge of the
Supreme Court unless he is a citizen of India and—
• (a) has been for at least five years a Judge of a High Court or of two or
more such Courts in succession; or
• (b) has been for at least ten years an advocate of a High Court or of
two or more such Courts in succession; or
• (c) is, in the opinion of the President, a distinguished jurist.
Appointment and Transfer of
Judges
Appointment and Transfer of Judges
• Appointment of Supreme Court Judges (Art. 124 (2))
• Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal on the
recommendation of the National Judicial Appointments
Commission referred to in article 124A (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 that purpose) and shall hold office
until he attains the age of sixty-five years
• Appointment of High Court Judges (Article 217 (1))
• Every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal on the recommendation of the
National Judicial Appointments Commission referred to in article 124A
(after consultation with the Chief Justice of India, the Governor of the
State, and, in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of the High Court), and shall hold office, in the
case of an additional or acting Judge, as provided in article 224, and in
any other case, until he attains the age of sixty-two years:
• Transfer of High Court Judges (Article 222 (1))
• The President may, on the recommendation of the National Judicial
Appointments Commission referred to in article 124A (after
consultation with the Chief Justice of India), transfer a Judge from one
High Court to any other High Court.
• Position prior to 1993
• The views of the CJI was not considered as binding
• The president used to act on the advice of the Council of Ministers
(Law Ministry)
• Position changed after 1993 with the Supreme Court Advocates
on Record Association case
• The collegium system was established
• Clarified in In re Special Reference No. 1 of 1998 (1998)
• NJAC introduced by the 99th Constitutional Amendment, 2014
• Struck down in Supreme Court Advocates on Record Association (2015)
• Union of India v. Sankal Chand Himatlal Sheth (1977)
• Whether the consent of the judge proposed to be transferred is
necessary?
• What does ‘consultation with the CJI’ mean?
• “The head of the Judiciary does not appear to have taken into consideration
all the relevant data when he was consulted and therefore, it is an
inescapable conclusion .... that the transfer order for want of consultation as
required by the Constitution is void” Guj HC
• During the pendency, the parties reached a settlement by which Justice Sheth
was transferred back to the Gujarat HC, and he withdrew the writ petition
• The power to transfer a High Court Judge is conferred by the Constitution in
public interest and not for the purpose of providing the executive with a
weapon to punish a Judge who does not toe its line or who, for some reason
or the other, has fallen from its grace.
• The extraordinary power which the Constitution has conferred on the
President by Article 222(1) cannot be exercised in a manner which is
calculated to defeat or destroy in one stroke the object and purpose of the
various provisions conceived with such care to insulate the judiciary from the
influence and pressures of the executive.
• The power to punish a High Court Judge, if one may so describe it, is to be
found only in article 218 read with articles 124(4) and (5) of the Constitution
• Since a High Court Judge cannot be transferred as a matter of punishment
and only in public interest, it is needless, in a broad sense, to cut down the
width of the words used in article 222(1) by making the power of transfer
dependent on the consent of the Judge himself.
• It may be stated that when the consent of a High Court Judge was thought
necessary, the Constitution has said so – Art. 224A
• The transfer of a High Court Judge to another High Court cannot become
effective unless the Chief Justice of India is consulted by the President in
behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of
effectiveness, because the transfer of a High Court Judge to another High
Court is unconstitutional unless, before transferring the Judge, the
President consults the Chief Justice of India.
• Article 222(1) which requires the President to consult the Chief
Justice of India is founded on the principle, that in a matter which
concerns the judiciary vitally, no decision ought to be taken by the
executive without obtaining the views of the Chief Justice of India
who, by training and experience, is in the best position to consider
the situation fairly, competently and objectively.
• Consultation within the meaning of article 222(1), therefore, means
full and effective, not formal or unproductive, consultation.
• while consulting the Chief Justice, the President must make the relevant
data available, to him on the, basis of which he can offer to the president
the benefit of his considered opinion.
• If the facts necessary to arrive at a proper conclusion are not made
available, to the Chief justice, he must ask for them because, in casting on
the President the obligation to consult the Chief Justice, the Constitution at
the same time must be taken to have; imposed a duty on the Chief Justice
to express his opinion on nothing less than a full consideration of the
matter on which he is entitled to be consulted.
• The fulfilment by the President, of his constitutional obligation to place full
facts before the Chief Justice and the performance by the latter, of the duty
to elicit facts which are necessary to arrive at a proper conclusion are parts
of the same process and are complementary to each other.
• Union of India v. Sankal Chand Himatlal Sheth (1977) – Minority
(Bhagwati J)
• Now, transfer of a Judge may be consensual, i.e., with consent, or
compulsory, i.e., without consent, and the word 'transfer' according
to its plain natural meaning would include both kinds of transfer.
• Having regard to the manifest intent of the constitution-makers to
secure the independence of the superior Judiciary and the context
and the setting of the provision in which the word 'transfer' occurs, it
should be given a narrower meaning limited only to consensual
transfer.
• Personal inconvenience and bar on practicing in two HCs
• We hope and trust that in his fight against an overbearing executive,
the Judge will not be waging a one or unequal battle. The ink on
recent history is still not dry and its pages contain a tribute to the
gentlemen standing in black robes who, though small in number,
championed public causes with a courage which dumbfounded even
that world in which Martin Luther King and Lord Coke had lived and
died. In fact, the missionary zeal of Mr. Sheth's counsel is by itself
enough assurance that Judges in distress, in their unequal contest
with the executives will not fail to receive the assistance and attention
of the illustrious at the bar.
• Chandrachud J.
• Union of India v. Sankal Chand Himatlal Sheth (1977) –
Summary
• Transfer only in public interest, not as a punishment
• Consent of the judge is not necessary
• Consultation with the CJI must be full and effective
• All relevant material to be made available to the CJI
• CJI in turn has a duty to ask for relevant material
• S. P. Gupta v. President of India (1981) I Judges Case
• While the President is bound to consult the authorities mentioned
therein and take into consideration their opinions, he is not bound by
their opinions. Ordinarily one does not expect the President to make an
appointment by ignoring all the adverse opinions expressed by the
functionaries mentioned in Article 217
• The opinion of each of the three constitutional functionaries is entitled to
equal weight and it is not possible to say that the opinion of the Chief
Justice of India must have primacy over the opinions of the other two
constitutional functionaries. If primacy were to be given to the opinion of
the Chief Justice of India, it would, in effect and substance, amount to
concurrence, because giving primacy would mean that his opinion must
prevail over that of the Chief Justice of the High Court and the Governor
of the State, which means that the Central Government must accept his
opinion
• The consultation has to be meaningful, purposeful, result oriented and of
substance. … All the parties involved in the process of consultation must
put all the material at its command relevant to the subject under
discussion before all other authorities to be consulted. Nothing can be
kept back. Nothing can be withheld. Nothing can be left for the eye of
any particular constitutional functionary
• It is difficult to hold that merely because the power of appointment is
with the executive, the independence of the judiciary would become
impaired. The true principle is that after such appointment the executive
should have no scope to interfere with the work of a Judge
• Transfer
• Consent is not necessary
• Subject to two conditions:
• Public interest
• Effective consultation with the CJI
• Origins of collegium system
• We would rather suggest that there must be a collegium to make
recommendation to the President in regard to appointment of a Supreme
Court or High Court Judge. The recommending authority should be more
broad based and there should be consultation with wider interests. If the
collegium is composed of persons who are expected to have knowledge
of the persons who may be fit for appointment on the Bench and of
qualities required for appointment and this last requirement is absolutely
essential — it would go a long way towards securing the right kind of
Judges, who would be truly independent in the sense we have indicated
above and who would invest the judicial process with significance and
meaning for the deprived and exploited sections of humanity.
• Bhagwati J
• S. P. Gupta - Summary
• The opinion of the constitutional functionaries whom the
President is bound to consult is not binding
• There is no primacy to the opinion of the CJI
• The consultation has to be meaningful, purposeful, result oriented
and of substance
• Consent of the judge is not necessary for transfer
• Transfer to be only in public interest and after effective
consultations with the CJI
• PIL would lie in matters relating to appointment and transfer of
judges
• Subhash Sharma v. Union of India, (1990)
• The view taken (in S. P. Gupta), in our opinion, not only seriously detracts
from, denudes the primacy of the position, implicit in the constitutional
scheme, of the Chief Justice of India in the consultative process but also
whittles down the very significance of "consultation" as required to be
understood in the constitutional scheme and context.
• Consistent with the constitutional purpose and process 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 to the
Supreme Court and the High Court of the States. We are of the view that
this aspect dealt with in Gupta's case requires re-consideration by a larger
bench.
• Subhash Sharma v. Union of India, (1990)
• The points which require to be re-considered relate to and arise from
the views of the majority opinion touching the very status of
"consultation" generally and in particular with reference to
"consultation" with Chief Justice of India and, secondly, as to the
primacy of the role of the Chief Justice of India.
• There is yet another aspect as to the right to initiate the
appointments of Judges. In regard to this aspect, in practice, there
appears to have been a distortion of the scope of the observations of
the majority, even to the extent these observations go.
• S.C. Advocates on Record Association v. Union of India (1993)
• II Judges Case
• (1) Primacy of the opinion of the Chief Justice of India in regard to
the appointments of Judges to the Supreme Court and the High
Court, and in regard to the transfers of High Court Judges/Chief
Justices; and
• (2) Justiciability of these matters, including the matter of fixation
of the Judge-strength in the High Courts
• These questions have to be considered in the context of the independence
of the judiciary, as a part of the basic structure of the Constitution, to
secure the 'rule of law' essential for the preservation of the democratic
system, the broad scheme of separation of powers adopted in the
Constitution, together with the directive principle of 'separation of
judiciary from executive' even at the lowest strata, provide some insight to
the true meaning of the relevant provisions in the Constitution relating to
the composition of the judiciary. The construction of those provisions must
accord with these fundamental concepts in the constitutional scheme to
preserve the vital and promote the growth essential for retaining the
Constitution as a vibrant organism.
• It is instructive to recall the prophetic warning of Dr. Rajendra Prasad in his
speech, President of the Constituent Assembly, while moving for adoption
of the Constitution of India. He said : We have prepared a democratic
Constitution. But successful working of democratic institutions requires in
those who have to work them willingness to respect the viewpoints of
others, capacity for compromise and accommodation. Many things which
cannot be written in a Constitution are done by conventions. Let me hope
that we shall show those capacities and develop those conventions. The
way in which we have been able to draw this Constitution without taking
recourse to voting and to divisions in lobbies strengthens that hope.
• It is well known that the appointment of superior Judges is from amongst
persons of mature age with known background and reputation in the legal
profession. By that time the personality is fully developed and the
propensities and background of the appointee are well known. The
collective wisdom of the constitutional functionaries involved in the
process of appointing superior Judges is expected to ensure that persons of
unimpeachable integrity alone are appointed to these high offices and no
doubtful persons gain entry. It is not unlikely that the care and attention
expected from them in the discharge of this obligation has not been
bestowed in all cases. It is, therefore, time that all the constitutional
functionaries involved in the process of appointment of superior Judges
should be fully alive to the serious implications of their constitutional
obligation and be zealous in its discharge in order to ensure that no
doubtful appointment can be made. This is not difficult to achieve.
• It is with this perception that the nature of primacy, if any of the
Chief Justice of India, in the present context, has to be examined in
the constitutional scheme. The hue of the word 'consultation', when
the consultation is with the Chief Justice of India as the head of the
Indian Judiciary, for the purpose of composition of higher judiciary,
has to be distinguished from the colour the same word 'consultation'
may take in the context of the executive associated in that process to
assist in the selection of the best available material.
• It must be seen who is best equipped and likely to be more correct in
his view for achieving the purpose and performing the task
satisfactorily. In other words, primacy should be in him who qualifies
to be treated as the 'expert' in the field. Comparatively greater weight
to his opinion may then be attached
• Government of India Acts of 1919 and 1935 did not provide for
consultation with the Chief Justice
• When the Constitution was being drafted, there was general agreement that the
appointments of Judges in the superior judiciary should not be left to the
absolute discretion of the executive, and this was the reason for the
provision made in the Constitution imposing the obligation to consult the
Chief Justice of India and the Chief Justice of the High Court. This was done
to achieve independence of the Judges of the superior judiciary even at the
time of their appointment, instead of confining it only to the provision of
security of tenure and other conditions of service after the appointment
was made. It was realised that the independence of the judiciary had to be
safeguarded not merely by providing security of tenure and other
conditions of service after the appointment, but also by preventing the
influence of political considerations in making the appointments, if left to
the absolute discretion of the executive as the appointing authority. It is
this reason which impelled the incorporation of the obligation of
consultation with the Chief Justice of India and the Chief Justice of the High
Court in Articles 124(2) and 217(1). The Constituent Assembly Debates
disclose this purpose in prescribing for such consultation, even though the
appointment is ultimately an executive act.
• It is obvious, that the provision for consultation with the Chief Justice
of India and, in the case of the High Courts, with the Chief Justice of
the High Court, was introduced because of the realisation that the
Chief Justice is best epuipped to know and assess the worth of the
candidate, and his suitability for appointment as a superior judge; and
it was also necessary to eliminate political influence even at the stage
of the initial appointment of a judge, since the provisions for securing
his independence after appointment were alone not sufficient for an
independent judiciary.
• At the same time, the phraseology used indicated that giving absolute
discretion or the power of veto to the Chief Justice of India as an individual
in the matter of appointments was not considered desirable, so that there
should remain some power with the executive to be exercised as a check,
whenever necessary. The indication is, that in the choice of a candidate
suitable for appointment, the opinion of the Chief Justice of India should
have the greatest weight; the selection should be made as a result of a
participatory consultative process in which the executive should have
power to act as a mere check on the exercise of power by the Chief Justice
of India, to achieve the constitutional purpose. Thus, the executive element
in the appointment process is reduced to the minimum and any political
influence is eliminated. It was for this reason that the word 'consultation'
instead of 'concurrence' was used, but that was done merely to indicate
that absolute discretion was not given to any one, not even to the Chief
Justice of India as individual, much less to the executive, which earlier had
absolute discretion under the Government of India Acts.
• However, it need hardly be stressed that the primacy of the opinion
of the Chief Justice of India in this context is, in effect, primacy of the
opinion of the Chief Justice of India formed collectively, that is to say,
after taking into account the views of his senior colleagues who are
required to be consulted by him for the formation of his opinion.
• SUMMARY OF THE CONCLUSIONS
• (1) The process of appointment of Judges to the Supreme Court and
the High Courts is an integrated 'participatory consultative process'
for selecting the best and most suitable persons available for
appointment; and all the constitutional functionaries must perform
this duty collectively with a view primarily to reach an agreed
decision, subserving the constitutional purpose, so that the occasion
of primary does not arise.
• (2) Initiation of the proposal for appointment in the case of the
Supreme Court must be by the Chief Justice of India, and in the case
of a High Court by the Chief Justice of that High Court; and for
transfer of a Judge/Chief Justice of a High Court, the proposal had to
be initiated by the Chief Justice of India. This is the manner in which
proposals for appointments to the Supreme Court and the High
Courts as well as for the transfers of Judges/Chief Justices of the High
Courts must invariably be made.
• (3) In the event of conflicting opinions by the constitutional
functionaries, the opinion of the judiciary 'symbolised by the view of
the Chief Justice of India and formed in the manner indicated, has
primacy.
• (4) No appointment of any Judge to the Supreme Court or any High
Court can be made, unless it is in conformity with the opinion of the
Chief Justice of India.
• (5) In exceptional cases alone, for stated strong cogent reasons,
disclosed to the Chief Justice of India, indicating that the
recommendee is not suitable for appointment, that appointment
recommended by the Chief Justice of India may not be made.
However, if the stated reasons are not accepted by the Chief Justice
of India and the other Judges of the Supreme Court who have been
consulted in the matter, on reiteration of the recommendation by the
Chief Justice of India, the appointment should be made as a healthy
convention.
• (6) Appointment to the office of the Chief Justice of India should be of
the seniormost Judge of the Supreme Court considered fit to hold the
office.
• (7) The opinion of the Chief Justice of India has not mere primacy, but
is determinative in the matter of transfers of High Court judges/Chief
Justices.
• (8) Consent of the transferred Judge/Chief Justice is not required for
either the first of any subsequent transfer from one High Court to
another.
• (9) Any transfer made on the recommendation of the Chief Justice of
India is not to be deemed to be punitive, and such transfer is not
justiciable on any ground.
• (10) In making all appointments and transfers, the norms indicated
must be followed. However, the same do not confer any justiciable
right in any one.
• (11) Only limited judicial review on the grounds specified earlier is
available in matters of appointments and transfers.
• (12) The initial appointment of Judge can be made to a High Court
other than that for which the proposal was initiated.
• (13) Fixation of Judge-strength in the High Courts is justiciable, but
only to the extent and in the manner indicated.
• Collegium system
• Appointment to the SC – Two senior most judges, and the views of
the senior-most Judge of the Supreme Court whose opinion is likely to be
significant in adjudging the suitability of the candidate, by reason of the
fact that he has come from the same High Court
• Appointment to the HC - the Chief Justice of a High Court to consult his
two senior-most puisne Judges before recommending a name for
appointment to the High Court. In forming his opinion in relation to such
appointment the Chief Justice of India is expected "to take into account the
views of his colleagues in the Supreme Court who are likely to be
conversant with the affairs of the concerned High Court. The Chief Justice
of India may also ascertain the views of one or more senior Judges of that
High Court". Same collegium – CJI and two senior most judges
• Non-appointment
• A person not recommended by the CJI cannot be appointed.
• Non-appointment of a person because of unsuitability - such non-appointment
"must be for good reasons, disclosed to the Chief Justice of India to enable him to
reconsider and withdraw his recommendation on those considerations. If the
Chief Justice of India does not find it necessary to withdraw his recommendation
even thereafter, but the other Judges of the Supreme Court who have been
consulted in the matter are of the view that it ought to be withdrawn, the non-
appointment of that person for reasons to be recorded, may be permissible in the
public interest However, if after due consideration of the reasons disclosed to the
Chief Justice of India, that recommendation is reiterated by the Chief Justice of
India with the unanimous agreement of the Judges of the Supreme Court
consulted in the matter, with reasons for not withdrawing the recommendation,
then that appointment as a matter of healthy convention ought to be made
• Inter-se seniority among High Court Judges
• inter se, seniority amongst Judges in their High Court and their combined
seniority on all India basis" should be kept in view and given due weight
while making appointments from amongst High Court Judges to the
Supreme Court. Unless there be any strong cogent reason to justify a
departure, that order of seniority must be maintained between them while
making their appointment to the Supreme Court
• The legitimate expectation of the High Court Judges to be considered for
appointment to the Supreme Court, according to their seniority must be
duly considered. The statement made thereafter is very important; it is :
• Transfer: Collegium – two senior most judges - In the formation of his
opinion, the Chief Justice of India, in the case of transfer of a Judge
other than the Chief Justice, is expected to take into account the
views of the Chief Justice of the High Court from which the Judge is to
be transferred, any Judge of the Supreme Court whose opinion may
be of significance in that case, as well as the views of at least one
other senior Chief Justice of a High Court, or any other person whose
views are considered relevant by the Chief justice of India
• Judicial Review
• The primacy of the judiciary in the matter of appointments and its determinative
nature in transfers introduces the judicial element in the process, and is itself a
sufficient justification for the absence of the need for further judiciary review of
those decisions, which is ordinarily needed as check against possible executive
excess or arbitrariness. Plurality of Judges in the formation of the opinion of the
Chief Justice of India, as indicated, is another inbuilt check against the likelihood
of arbitrariness or bias, even subconsciously, of any individual. The judicial
element being predominant in the case of appointments, and decisive in
transfers, as indicated, the need for further judicial review, as in. other executive
actions, is eliminated. The reduction of the area of discretion to the minimum,
the element of plurality of Judges information of the opinion of the Chief Justice
of India, effective consultation in writing, and prevailing norms to regulate the
area of discretion are sufficient checks against arbitrariness.
• Judicial Review
• Except on the ground of want of consultation with the named
constitutional functionaries or lack of any condition of eligibility in the
case of an appointment, or of a transfer being made without the
recommendation of the Chief Justice of India, these matters are not
justiciable on any other ground, including that of bias, which in any
case is excluded by the element of plurality in the process of decision
making.
• Transfer is not justiciable on any ground
• CJI
• Senior most judge to be appointed as the Chief Justice of India
• Presidential Reference No. 1 of 1998 (1998) – III Judges Case
• Whether individual opinion of the CJI constitute consultation
• Extent of judicial review – transfer
• Whether collegium to be expanded
• Whether CJI can act solely in his individual capacity – non-
appointment
• When seniority is overlooked for strong and cogent reasons –
whether reasons to be recorded for each of the judge overlooked
• Whether the recommendation of the CJI not complying with the
norms binding on the President
• The sole, individual opinion of the Chief Justice of India does not
constitute "consultation" within the meaning of the said Articles.
• The transfer of puisne Judges is judicially reviewable only to this
extent: that the recommendation that has been made by the Chief
Justice of India in this behalf has not been made in consultation with
the four senior-most puisne Judges of the Supreme Court and/or that
the views of the Chief Justice of the High Court from which the
transfer is to be effected and of the Chief Justice of the High Court to
which the transfer is to be effected have not been obtained.
• The Chief Justice of India must make a recommendation to appoint a
Judge of the Supreme Court and to transfer a Chief Justice or puisne
Judge of a High Court in consultation with the four senior-most
puisne Judges of the Supreme Court. Insofar as an appointment to
the High Court is concerned, the recommendation must be made in
consultation with the two senior-most puisne Judges of the Supreme
Court.
• The Chief Justice of India is not entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme
Court, in respect of materials and information conveyed by the
Government of India for non-appointment of a judge recommended
for appointment.
• "Strong cogent reasons" do not have to be recorded as justification
for a departure from the order of seniority, in respect of each senior
Judge who has been passed over. What has to be recorded is the
positive reason for the recommendation.
• The Chief Justice of India is obliged to comply with the norms and the
requirement of the consultation process in making his
recommendations to the Government of India. Recommendations
made by the Chief Justice of India without complying with the norms
and requirements of the consultation process are not binding upon
the Government of India.
• There is no doubt that the decision in the Second Judges Case
virtually rewrote some provisions of the Constitution - D. D. Basu
• Some kind of rethink is necessary.. the appointment process is
basically a joint or participatory exercise between the executive and
the judiciary, both taking part in it – J. S. Verma
• Within two decades, we have moved from one extreme to the other:
from judiciary controlled by the will of the executive to a judiciary
with theoretically unbridled and unchecked power – Zia Mody
• A case I won – But which I would prefer to have lost
• Fali S Nariman
• I don’t see what is so special about the first five judges of the
Supreme Court. They are only the first five in seniority of
appointment – not necessarily in superiority of wisdom or
competence… I would suggest that the closed circuit network of five
judges should be disbanded.
• National Judicial Appointments Commission (NJAC)
• 121st Law Commission Report – 1987
• 67th Constitutional Amendment Bill, 1990
• Ram Jethmalani (Bill) 1990
• 98th Constitutional Amendment Bill, 2004
• National Judicial Appointments Commission (NJAC)
• 99th Constitutional (Amendment) Act, 2014
• 124A. National Judicial Appointments Commission.—(1)
There shall be a Commission to be known as the National
Judicial Appointments Commission consisting of the
following, namely:—
• (a) the Chief Justice of India, Chairperson, ex officio;
• (b) two other senior Judges of the Supreme Court next
to the Chief Justice of India––Members, ex officio;
• (c) the Union Minister in charge of Law and Justice––
Member, ex officio;
• (d) two eminent persons to be nominated by the committee
consisting of the Prime Minister, the Chief Justice of India and the
Leader of Opposition in the House of the People or where there is
no such Leader of Opposition, then, the Leader of single largest
Opposition Party in the House of the People––Members:
• Provided that one of the eminent person shall be nominated from
amongst the persons belonging to the Scheduled Castes, the
Scheduled Tribes, Other Backward Classes, Minorities or Women:
• Provided further that an eminent person shall be nominated for a
period of three years and shall not be eligible for renomination.
• (2) No act or proceedings of the National Judicial Appointments
Commission shall be questioned or be invalidated merely on the
ground of the existence of any vacancy or defect in the constitution
of the Commission.
• 124B. Functions of Commission.––It shall be the duty of the National
Judicial Appointments Commission to—
• (a) recommend persons for appointment as Chief Justice of India,
Judges of the Supreme Court, Chief Justices of High Courts and other
Judges of High Courts;
• (b) recommend transfer of Chief Justices and other Judges of High
Courts from one High Court to any other High Court; and
• (c) ensure that the person recommended is of ability and integrity.
• 124C. Power of Parliament to make law.––Parliament may, by law,
regulate the procedure for the appointment of Chief Justice of India
and other Judges of the Supreme Court and Chief Justices and other
Judges of High Courts and empower the Commission to lay down by
regulations the procedure for the discharge of its functions, the
manner of selection of persons for appointment and such other
matters as may be considered necessary by it.
• National Judicial Appointments Commission Act, 2014
• Provided further that the Commission shall not recommend a person for
appointment if any two members of the Commission do not agree for such
recommendation. S. 5 (2) and 6 (6)
• Supreme Court Advocates on Record Association v. Union of
India (2015)
• 4:1 struck down the 99th Constitutional Amendment Act and the
NJAC Act
• J. S. Khehar, Madan B Lokur, Kurian Joseph, and Adarsh Kumar
Goel JJ
• J. Chelameswar J (Dissenting)
• The prayer for reference to a larger Bench, and for reconsideration

of the Second and Third Judges cases is rejected.
• The Constitution (Ninety-ninth Amendment) Act, 2014 is declared
unconstitutional and void.
• The National Judicial Appointments Commission Act, 2014, is
declared unconstitutional and void.
• The system of appointment of Judges to the Supreme Court, and
Chief Justices and Judges to the High Courts; and transfer of Chief
Justices and Judges of High Courts from one High Court, to another,
as existing prior to the Constitution (Ninety-ninth Amendment) Act,
2014 (called the “collegium system”), is declared to be operative.
• Judicial primacy in appointments was repeatedly accepted by the
Court
• Collegium system does not violate the constitutional scheme and
does not take away the role of the executive. The President can still
reject a nomination
• Constitutional scheme regards appointments as an integral part of
judicial independence
• The word ‘consultation’ has been used to curtail the powers of the
executive. The Collegium achieves the desired balance between the
two positions, by placing primacy in the hands of a plurality of judges.
• Consistent practice since Independence allowed the Chief Justice the
final say in judicial appointments
• Judicial appointments, being an integral facet of judicial independence, are
part of the basic structure.
• Judicial primacy in appointments is part of the basic structure of the
Constitution
• Collegium system allows executive participation while maintaining judicial
primacy in appointment process
• Judicial primacy is lost by the ‘veto’ provisions
• “We are therefore persuaded to accept, that Article 124A(1)(d) is liable to
be set aside and struck down, for having not laid down the qualifications of
eligibility for being nominated as “eminent persons”, and for having left the
same vague and undefined.”
• Ordinary law can be challenged on the basis of the basic structure doctrine
• Notwithstanding the declaration of unconstitutionality of the NJAC, I
believe its core functions are now being performed by a body minus
the two eminent persons. So, the recommendation and appointment
of judges has been taken over by a “new NJAC” and without any
apparent protest…It seems to me that the unconstitutional NJAC is
rearing its head and is now Frankenstein’s monster. The advice of the
two eminent persons postulated by the NJAC is no longer required.
Actually, there is now no need to amend the Constitution to bring
back the NJAC — it is already in existence with a vengeance. At the
present moment, silence on crunch issues is not golden.
• Justice (Rtd.) Madan B Lokur, Indian Express, 16 October 2019
• https://indianexpress.com/article/opinion/columns/govt-calling-the-
supreme-court-shots-narendra-modi-6070659/
• “It was only possible for the court to create and preserve collegium
system under conditions where it could claim that it was a better
custodian of judicial integrity and administration than the other
branches of the State. But with its legitimacy now greatly weakened,
and its capacity for self regulation in such deep crisis, the worry over
judicial accountability will outshine the concern for judicial
independence. The careful case for judicial independence made out
in the NJAC verdict will find few takers in the present climate. The
failure of internal accountability within the judiciary will naturally
further the case for external accountability, and the near future is
likely to witness a strong case for greater external management of the
judiciary.”
• Madhav Khosla
• Reasons for the decline of reputation of the Supreme Court
• The open evasion of several crucial and contentious legal
controversies
• SC’s evolving doctrine of Constitutional Evasion – Gautam
Bhatia
• The Court’s record on civil liberties has grown from bad to worse
• The judiciary has been noticeably vocal on matters where it

should, quite simply, stay silent
• Specific incidents that have been more damaging

• Madhav Khosla
Independence of Judiciary
• Independent judiciary is a sine qua non of a vibrant judiciary
• Basic feature of the Constitution
• Extends even to appointment and transfer – basic feature
• Security of tenure
• Art. 124 (2) – 65 years - SC/217 (1) - 62 years – HC
• Removal – Art. 124 (4) & 217 (1) Proviso (b)
• Salary
• Cannot be varied to his disadvantage – Art. 125 (2) Proviso/221 (2) Proviso
• Charged on the Consolidated Fund of India/State and not subject to vote in
legislature – Art. 112 (3) (d)/202 (3) (d)
• Parliament cannot curtail the jurisdiction of the S.C>, but can only
expand it
• Art. 138
• No discussion in the legislature on the conduct of the Judges
• Art. 121 (Parliament)/Art. 211 (State Legislature)
• Power to punish for contempt
• Art. 129 (Supreme Court)/Art. 215 (High Courts)
• Prohibition on Practice after retirement
• Art. 124 (7) – SC Judges/Art. 220 – HC judges
• Separation of Judiciary from the Executive
• Art. 50
• Appointment of Judges
• Post retirement appointments
• There is no explicit prohibition against judges accepting Rajya Sabha
nominations. But the presumption against these kinds of appointments was
strong; indeed, Justice Gogoi himself had authored a judgment which
acknowledged that post-retirement jobs could bring the judiciary into
disrepute. The very fact that a judge accepts such an appointment could cast
doubt on his judgements. It would signal that the judiciary is not
independent, but lives for crumbs thrown by the executive.
• A paper by Shubhankar Dam, Madhav Aney and Giovanni Ko, and earlier work
by Shylashri Shankar, collected systematic data to show how judges
proactively become pro-executive as they near retirement. It is often thought
that the solution to this problem requires explicit prohibition on any post-
judicial appointment, including commissions of inquiry.
• The authority of the Supreme Court of India rests squarely on two
things: The cogency of its reasoning, and the integrity of its judges
• Pratap Bhanu Mehta
• https://indianexpress.com/article/opinion/columns/ranjan-gogoi-supreme-
court-rajya-sabha-6320869/

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Supreme Court

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Supreme Court

• Seat of Supreme Court (Art. 130)

• The prayer for reference to a larger Bench, and for reconsideration

• The judiciary has been noticeably vocal on matters where it

• Specific incidents that have been more damaging

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