GUJARAT NATIONAL LAW UNIVERSITY

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SEMESTER – IV
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 Constitutional Law II
Supreme Court Advocate on Record Association V. Union
of India, (2016) 5 SCC 1: Analysis of Majority Opinion

Continuous Internal Evaluation

SUBMITTED BY- Shivam Kaith (18B116), 2018-23, Gujarat National Law University

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SUBMITTED TO- Dr. Avinash Bhagi, Assistant Professor of Law, Gujarat National
Law University

SUPREME COURT ADVOCATE ON RECORD

ASSOCIATION

V.
UNION OF INDIA

(2016) 5 SCC 1

IN SUPREME COURT OF INDIA,

WRIT PETITION (CIVIL) NO. 13 OF 2015
UNDER ARTICLE 32 OF CONSTITUTION OF INDIA
16TH OF OCTOBER, 2015

BEFORE:
JUSTICE A.K GOEL,
JUSTICE J.S KHEHAR,
JUSTICE J. CHELAMESWAR,
JUSTICE MADAN B. LOKUR,
JUSTICE KURIAN JOSEPH 1

1
Supreme Court Advocate on Record Association V. Union of India, (2016) 5 SCC 1

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 KEY WORDS- Principles of Separation of Powers, collegium, Independence of the judiciary,
National Judicial Appointment Commission, 99TH Constitutional Amendment, Three judges’ case

INTRODUCTION OF THE CASE

The 99th Constitutional Amendment was passed by Parliament in exercise of its powers to
amend the Constitution under Article 368 of the Constitution. The majority of the judges in
Kesavananda Bharati v. State of Kerala2 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 Constitution3 and, therefore, the Constitutional Bench in the
NJAC case4 was called upon to decide whether Parliament while enacting the Constitution
Amendment Act and the National Judicial Appointments Commission Act 2014 (NJAC Act)
affected the independence of judiciary.
At the beginning of 2015, the Supreme Court Advocates-on-Record Association and the
Senior Advocates filed writ lawsuits before the Supreme Court challenging the
constitutionality of the Ninth Amendment and the NJAC Act. The petitions claimed, inter
alia, that the NJAC violated the basic structure of the Constitution by compromising the
independence of the judiciary.

BACKGROUND
Collegium, this is the method of selecting and transferring judges that has formed through
Supreme Court decisions, and not by a legislative act or a constitutional provision. The
collegium of the Supreme Court is headed by India's chief justice and includes four other
senior most of the court's judges. A collegium of the High Court is chaired by its chief justice
and four other senior judges of that court.
Names recommended for selection by a collegium of the High Court shall only reach the
government after ratification by the CJI and the collegium of the Supreme Court. Judges of
Higher Judiciary are selected only by the collegium method and the government only plays a
part after names have been determined by the collegium.
The position of the government is restricted to having an investigation from the Intelligence
Bureau (IB) whether a lawyer is to be appointed as a judge at a High Court or at the Supreme

2
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
3
Supreme Court Advocates on Record Association and ors. v. Union of India (1993) 4 SCC 441 [421];
Registrar (Admin) High Court of Orissa Cuttack v. Sisir Kanta Sathpathy (1999) 7 SCC 725 [1]
4
Supreme Court Advocates on Record Association and anr. v. Union of India (2016) 5 SCC 1

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Court. One can even raise concerns and demand clarifications regarding the choices taken by
the collegium, but if the collegium reiterates the same names, the government is bound to
nominate them as judges under Constitution Bench judgments.

ISSUES BEFORE THE COURT

The primary issue before the court was-

 Whether the Constitution (Ninety-ninth Amendment) Act, 2014 and The
National Judicial Appointments Commission Act, 2014 are violative of the
‘Principles of Separation of Powers’ or not? 

The Constitution Amendment Act sought to change this position by amending Article 124 so
as to provide that the President shall appoint Judges of the Supreme Court on the
recommendation of National Judicial Appointments Commission (NJAC). The Constitution
Amendment Act introduced Articles 124A, 124B, and 124C which relate to the composition
and functions of the NJAC and the regulations relating to the procedure that the NJAC has to
follow.5
The present case relied upon, Supreme Court Advocates-On-Record Association and Others
v. Union of India (1993), (Hereinafter: Second Judge’s Case)6 Where it was held that
independence of judiciary was held to be a part of The Doctrine of Basic Structure. The court
evaluated the Three Judges cases which established the current collegium system and
concluded the judgement by striking down the 99th Amendment Act and Declaring NJAC as
Unconstitutional and Void.
The SC has upheld the legal validity of the current collegium system, and the Constitution of
India has the following two Articles related to this issue:

Article 124(27):
"Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years. Provided that in the case of

5
Justice Patnaik A, “A Critique of the NJAC Judgement” (2015) 3 Journal of National Law University Delhi 17
6
Ibid, Note 3.
7
Constitution of India, Art 124 (2)

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appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always
be consulted."

And Article 2178:

“Every Judge of a High Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High
Court.”

ARGUMENTS ADVANCED

RESPONDENTS
For the Present case, the Respondents relied upon the first Judge’s case, I.E. S.P Gupta V.
Union of India9. However, The Supreme Court rejected the stance adopted by the respondents
as the case was overruled by a larger bench in second judge’s case 10 And later the stance of
Second Judge’s case was ratified by Third Judge’s Case11, I.e., In Re: Special Reference No.1
of 1998.
Counsel representing the respondents, adopted the only course open to them, namely, to seek
reconsideration of the decisions rendered by the Supreme Court in the Second and Third
Judges cases.
The learned Attorney General commenced his response by asserting, that there was no
provision in the Constitution of India, which contemplated, that Judges would appoint Judges
to the higher judiciary. It was accordingly asserted, that the appointment of Judges by Judges
was foreign to the provisions of the Constitution.
Attorney General remarked that “The Constitution has devised a structure of power
relationships with checks and balances wherein limits are placed on the power of every
authority or instrumentality under the constitutional scheme”12
There was a question arising here that, whether it is Ultra-vires if the appointment of two
eminent persons from a non-judicial background will undermine the pillar of the
independence of the judiciary?

8
Constitution of India, Art 217
9
S.P Gupta V. Union of India 1981 (Supp) SCC 87
10
Ibid. Note 3
11
In Re: Special Reference No.1 of 1998 (1998) 7 SCC 739
12
Ibid. Note 1

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Seeking diversity in the process of selecting judges, under Article 124A of the NJAC, two
eminent persons, not from a judicial background, will form part of a six-member committee
for the selection of judges. This provision was strongly questioned by those defending the
collegium system because it would, for the first time, give power to an individual to make a
decision on the selection of judges, which until now has been seen as a mere judicial
decision.
AG also Relied upon the fact that reconsideration of the decision rendered in the First Judges
case arose in Subhash Sharma v. Union of India 13, wherein the questions considered were,
whether the opinion of the Chief Justice of India, in regard to the appointment of Judges to
the Supreme Court and High Courts, as well as, transfer of High Court Judges, was entitled to
primacy, and also, whether the matter of fixation of the judge-strength in High Courts, was
justiciable?
The Supreme Court asserted that these questions were already determined by the Court in
Second and Third Judge’s Case with a Nine Judge Bench. The Attorney General also
contended that-
“Primacy of judiciary in appointments was recognized by erroneous interpretation of
unamended provisions of the Constitution and by way of amendment such interpretation
has been corrected and thus there is no violation of basic structure. Alternatively, larger
Bench be constituted to correct the earlier interpretation”

PETITIONERS
Consequently, the petitioner in this case relied upon The Second Judge’s Case 14 and The
Third Judge’s Case15. The general principles enunciated by the Supreme Court based on the
concept of independence of the judiciary Would prevail. The petitioner in the present case
contended that-
“The concept is all pervasive and whenever that situation arises, the Court would, in the
same manner as it did in the Second Judges’ case, interpret the present Article 124-A.
This would mean that the principle of independence underlying the appointment of
judges of the higher judiciary would require that the views of the three judges of the
Commission, speaking with a single voice would have primacy.”
This would be the result because the concept of judicial independence applicable in the case
of appointment of judges to the higher judiciary would be applicable wherever and whenever
13
Subhash Sharma v. Union of India 1991 AIR 631
14
Ibid. Note 3
15
Ibid. Note 11

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a situation arose where no explicit provision in the Constitution gave primacy to the judicial
wing.
In such cases, the validity of the constitutional provision would be upheld and legitimized
exactly on the same basis as the concept was evolved in the Second Judges’ case.
As a result, the 99th amendment to the Constitution, would always be deemed to have been a
valid exercise of Constituent power. In the absence of the existence of a ‘veto’, if the three
Judges speak with a single voice, their decision would prevail. The President would then have
to issue the warrant of appointment.
Further, petitioners also contended that the term ‘eminent person’ is too broad and that the
appointment of eminent persons who have nothing to do with the law and who are not aware
of the working of the judicial system would result in a violation of the principle of judicial
independence. ‘The rule of purposive interpretation’ can be applied to this provision. By
application of this rule, the Court can interpret eminent persons to mean only ‘persons trained
in law’ or ‘eminent jurists’16

The Petitioners also contended that Irrespective of the nine Judges’ Bench judgment, certain
concepts in law exist in the matter of the functioning of the judiciary in a democracy. The
existence of an independent judiciary is a sine qua non for democracy to flourish. Here, we
are concerned with the issue of appointment of judges to the higher judiciary. Whether, the
power is executive or not, it cannot be gainsaid that it impinges on the independence of the
judiciary in case the executive were to exclusively have the power to appoint the judges. Such
a system of appointment could result in brining into existence judges who are subservient to
the will of the Government, which would be a major litigant in the Courts. Independence
therefore, would stand affected.

16
P. Vaikunta Shenoy v. P. Hari Sharma (2007) 14 SCC 297

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 JUDGEMENT

The Judgement was authored by Justice A.K Goel. In the 1042 pages long Judgement, the
court explained the stances of both petitioner and respondents and further explained the
constitutionality of the Amendment. In the Judgment, the majority, relying on Supreme Court
Advocates-On-Record Association and Others v. Union of India (1993), held that since the
composition of the NJAC includes three non-judicial members and three members of the
judiciary, the primacy of the judiciary in the appointment and transfer of judges is affected.
Since primacy of the judiciary is crucial for independence of the judiciary, the Constitution
Amendment Act violates independence of the judiciary which is a basic structure of the
Constitution. The majority also held that clause(c) of Article 124A (1) which includes the
Union Minister in charge of Law and Justice as Member, ex-officio of NJAC will bring in
political influence in the appointment and transfer of Judges and is, therefore, violative of the
independence of judiciary.17 The Judgement Majority of 4:1, with Dissenting opinion from
Justice Chelameswar

17
Ibid. Note 1

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DISSENT OF JUSTICE CHELAMESHWAR

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. Justice Chelameswar also held that the Law
Minister represents the 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 Court sand to eliminate the executive from the
process of selection would be inconsistent with the foundational premise that the Government
comprise selected representatives of the people in a democracy. 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.18

POINTS EVALUATED IN THE MAJORITY JUDGEMENT-

 CONCEPT OF BASIC FEATURES – AS LIMITATION ON POWER OF THE

PARLIAMENT TO AMEND THE CONSTITUTION
The Court evaluated the stance of Kesavananda Bharati v. State of Kerala, which is
well established that “Article 368 does not enable Parliament to alter the basic
structure or framework of the Constitution” 19 The conclusion was based on
interpretation of the word ‘amendment’. It was observed that the word was capable of
wide as well as narrow meaning and while wide meaning was to be preferred but
consistent with the intention of Constitution makers and the context. It could not be
given too wide meaning so as to permit damage to the constitutional values which
depict the identity of the Constitution.20

18
Justice Patnaik A, “A Critique of the NJAC Judgement” (2015) 3 Journal of National Law University Delhi
19
Ibid. Note 2.
20
Ibid.

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 it was concluded that a constitutional amendment has to pass the test of basic
structure. Whether or not the basic structure was violated has to be finally determined
by this Court from case to case.

 INDEPENDENCE OF JUDICIARY AND PRIMACY OF JUDGES IN

JUDICIAL APPOINTMENTS
The Judges unanimously upheld the fact that primacy and requirement of independent
judiciary is absolute essential and in fact a part of basic structure of the constitution.
The Judges remarked that-
“The judiciary is required to be separate from the executive control. Judiciary has
to inspire confidence of the people for its impartiality and competence. It has not
been disputed by learned Attorney General that independence of judiciary is part of
the basic structure. It is also undisputed that judicial review is part of basic
structure. The decisions of this Court expressly lay down that independence of
judiciary and judicial review are part of basic structure.”21
But here the question arises, Can the independence of judiciary be maintained even if
the appointment of Judges is controlled directly or indirectly by the executive? and to
what extent primacy of judiciary in appointment of judges is part of unamendable
basic feature of the Constitution?
The judges evaluated this point with the help of Second and Third Judge’s Case.
The court held that primacy of judiciary and limited role of the Executive in
appointment of judges is part of the basic structure of the Constitution. The primacy
of judiciary is in initiating a proposal and finalizing the same. The Executive is at
liberty to give suggestions prior to initiation of proposal and to give feedback on
character and antecedents of the candidates proposed and object to the appointment
for disclosed reasons as held in Second and Third Judges’ cases.22

 WHETHER THE IMPUGNED AMENDMENT ALTERS OR DAMAGES THE

BASIC STRUCTURE
In the above background, the only question which remains to be considered is whether
under the impugned amendment the basic feature of primacy of judiciary in
appointment of judges has been altered or damaged.

21
Supreme Court Advocate on Record Association V. Union of India, (2016) 5 SCC 1
22
Ibid.

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 The Judges concluded that 99th Amendment Act diluted the power of the executive
with the Independent Role of Judiciary in the Indian Constitution. The judges also
concluded that the veto power with the Law Minister or with a non-judge member, as
against a Supreme Court Judge who is the member of the collegium, may involve
interference with the independence of judiciary. Justice A.K Goel Concluded that
“…the new scheme damages the basic feature of the Constitution under which
primacy in appointment of judges has to be with the judiciary. Under the new
scheme such primacy has been given a go-bye. Thus, the impugned amendment
cannot be sustained.”23

 After evaluating the above points, the 99th Amendment act and NJAC Act was
declared unconstitutional and Void. The Provisions of the legislation were found to be
violative of the basic structure of the constitution.

CONCLUSION AND REMARKS

The Court relying upon Second and Third Judge’s case upheld the Independence of Judiciary
and found NJAC to be Unconstitutional. It is agreeable that the primacy of independence of
judiciary is to be maintained, However, The Supreme Court lost an opportunity to introduce a
more transparent way of judicial appointments. The present collegium system of appointment
of Judges is not regulated by the provisions of the Constitution or by an Act of Parliament or
by any statutory regulations. Instances since 1994 has shown that it has not established
transparent processes of appointment of judges to the Supreme Court and to the High Courts
and of transfer of judges.24

23
Ibid.
24
Justice Patnaik A, “A Critique of the NJAC Judgement” (2015) 3 Journal of National Law University Delhi

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 ******

REFERENCES
 https://www.livemint.com/Politics/F54M8MGUsvxkiYkKvaJoXL/The-arguments-
that-led-to-Supreme-Courts-NJAC-verdict.html
 https://www.slideshare.net/abhinandanray/supreme-court-advocate-on-record-
association-v-union-of-india-1993
 http://lawtimesjournal.in/supreme-court-advocates-on-record-association-vs-union-of-
india/
 https://indiankanoon.org/doc/66970168/
 http://d1.manupatra.com/ShowPDF.asp?
flname=A_CRITIQUE_OF_THE_NJAC_JUDGMENTJNLUD_2COM677976.pdf
 https://cjp.org.in/supreme-court-advocates-on-record-association-v-union-of-india-
2015/

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  https://bnblegal.com/landmark/supreme-court-advocates-record-v-s-union-india-part-
iv/
 https://www.advocatekhoj.com/library/judgments/announcement.php?WID=6716
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2744838
 https://www.scconline.com/blog/post/2016/06/06/2016-scc-vol-5-may-28-2016-part-
1/
 https://en.wikipedia.org/wiki/Three_Judges_Cases
 https://www.business-standard.com/article/current-affairs/njac-vs-collegium-the-
arguments-and-counter-arguments-115101601449_1.html

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