NJAC judgment

Supreme Court Advocates-on-Record -

Association and another … Petitioner(s)

versus

Union of India … Respondent(s)

Judicial pronouncements

103. The question of the appointment of judges (mainly of the High Courts) came up for consideration in this Court on three occasions. The decision rendered in each of these cases is not only of considerable importance but also indicates the complexity in the appointment of judges and the struggle by the Bar to maintain the independence of the judiciary from executive interference and encroachment. These three cases are referred to as the First Judges case,[264] the Second Judges case[265] and the Third Judges case.[266] There have been other significant pronouncements on the subject and they will be considered at the appropriate stage.

2 First judges case – 30.12.1981

104. The First Judges case is important for several reasons, but I am concerned with a few of them. These are: (1) The independence of the judiciary was held to be a part of the basic feature of the Constitution.[267] This was the first judgment to so hold. (2) The appointment of a judge is serious business and is recognized as a very vital component of the independence of the judiciary. ‘What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India.’[268] Justice Venkataramiah, however, was of the view that the independence of the judiciary is relatable only to post- appointment and that ‘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.’[269] (3) In the appointment of a judge of the Supreme Court or the High Court, the word ‘consultation’ occurring in Article 124(2) and in Article 217(1) of the Constitution does not mean ‘concurrence’.[270] However, for the purposes of consultation, each constitutional functionary must have full and identical facts relating to the appointment of a judge and the consultation should be based on this identical material.[271] (4) In the event of a disagreement between the constitutional functionaries required to be consulted in the appointment of a judge, the Union Government would decide whose opinion should be accepted and whether an appointment should be made or not. In such an event, the opinion of the Chief Justice of India has no primacy.[272] The ‘ultimate power’ of appointment of judges to the superior Courts rests with the Union Government.[273] (This is completely contrary to the view of the Constituent Assembly and Dr. Ambedkar).

(5) The extant system of appointment of judges is not an ideal system of appointment. The idea of a consultative panel (called a collegium or Judicial Commission) was floated as a replacement. This body was to consist of persons expected to have knowledge of persons who might be fit for appointment on the Bench and possessed of qualities required for such an appointment. Countries like Australia and New Zealand ‘have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary.’[274] Incidentally, we were informed during the course of hearing that even about 35 years after the decision in the First Judges case neither Australia nor New Zealand have established a Judicial Commission as yet.

105. On the meaning of ‘consultation’ for the purposes of Article 124(2) and Article 217(1) of the Constitution, Justice Bhagwati who spoke for the majority relied upon Union of India v. Sankalchand Himmatlal Sheth[275] and R. Pushpam v. State of Madras[276] to hold that:

“Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge.”[277]

106. The majority view in the First Judges case was overruled in the Second Judges case and it was held that ‘consultation’ in Article 217 and Article 124 of the Constitution meant that ‘primacy’ in the appointment of judges must rest with the Chief Justice of India.[278] The evolution of the collegium system and a Judicial Commission will be discussed a little later, although it must be noted that the seeds thereof were sown (apart from the Reports of the LCI) in the First Judges case.

107. I do not think it necessary to further discuss the First Judges case since it has been elaborately considered by Justice Khehar.

3 Subhash Sharma’s case

108. In a writ petition filed in this Court praying for filling up the vacancies of judges in the Supreme Court and several High Courts of the country, a three judge Bench was of the view that the First Judges case required reconsideration.[279] It was observed that the decision of the majority not only rejects the primacy of the Chief Justice of India but also whittles down the significance of ‘consultation’.

109. It was noted that the Constitution (Sixty-seventh Amendment) Bill, 1990 was pending consideration in Parliament and that the Statement of Objects and Reasons for the Amendment Act acknowledged that there was criticism of the existing system of appointment of judges (where the executive had the primacy) and that this needed change, hence the need for an Amendment Act.[280]

110. On the issue of executive interference in the appointment of judges, the Bench found that interference went to the extent of impermissibly re- opening the appointment process even though a recommendation for the appointment of a judge had been accepted by the Chief Justice of India. It was observed:

“From the affidavits filed by the Union of India and the statements made by learned Attorney General on the different occasions when the matter was heard we found that the Union Government had [pic]adopted the policy of reopening recommendations even though the same had been cleared by the Chief Justice of India on the basis that there had in the meantime been a change in the personnel of the Chief Justice of the High Court or the Chief Minister of the State. The selection of a person as a Judge has nothing personal either to the Chief Justice of the High Court or the Chief Minister of the State. The High Court is an institution of national importance wherein the person appointed as a Judge functions in an impersonal manner. The process of selection is intended to be totally honest and upright with a view to finding out the most suitable person for the vacancy. If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned.”[281]

111. Apart from the above, the Bench was of the view that the interpretation given by the majority in the First Judges case to ‘consultation’ was not correctly appreciated in the constitutional scheme. It was also felt that the role of the institution of the Chief Justice of India in the constitutional scheme had been denuded in the First Judges case. Keeping all these factors in mind, particularly the functioning of the appointment process and the acknowledgement of the Union Government that a change was needed, it was observed:

“The view taken by Bhagwati, J., Fazal Ali, J., Desai, J., and Venkataramiah, J., to which we will presently advert, in our opinion, not only seriously detracts from and 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. This bears both on the substance and the process of the constitutional scheme….. 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 Courts of the States. We are of the view that this aspect dealt with in Gupta case requires reconsideration by a larger bench.”[282]

112. The issues for consideration of a larger Bench were then formulated in the following words:

“The points which require to be reconsidered 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. The content and quality of consultation may perhaps vary in different situations in the interaction between the executive and the judicial organs of the State and some aspects may require clarification.”[283]

113. It was also observed that a view was expressed in the First Judges case that the government of the State could initiate a proposal for the appointment of a judge but that the proposal could not be sent directly to the Union Government, but should first be sent to the Chief Justice of the High Court.[284] Notwithstanding this clear exposition, the procedure was being distorted by the executive and a proposal for the appointment of judge of the High Court was being sent directly to the Union Government. It was said in this regard:

“But it has been mentioned that a practice is sought to be developed where the executive government of the State sends up the proposals directly to the Centre without reference to the Chief Justice of the State. This is a distortion of the constitutional scheme and is wholly impermissible. So far as the executive is concerned, the ‘right’ to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Courts or the Chief Justice of India. If the recommendation is to emanate directly from a source other than that of the Chief Justices of the High Courts in the case of the High Courts and the Chief Justice of India in the case of both the High Courts and the Supreme Court it would be difficult for an appropriate selection to be made. It has been increasingly felt over the decades that there has been an anxiety on the part of the government of the day to assert its choice in the ultimate selection of Judges. If the power to recommend would vest in the State Government or even the Central Government, the picture is likely to be blurred and the process of selection ultimately may turn out to be difficult.”[285]

114. By-passing the Chief Justice of the High Court in the matter of recommending a person for appointment as a judge of the High Court was an unhealthy practice that the political executive of the State was trying to establish since around the time of Independence. This ‘subterfuge’ was deprecated on more than one occasion, as noticed above.

115. Another practice that the political executive was trying to establish was to recommend persons for appointment as a judge of the High Court to the Chief Justice of that High Court. In this context, it was also stated in Subhash Sharma (as quoted above) that: ‘It has been increasingly felt over the decades that there has been an anxiety on the part of the government of the day to assert its choice in the ultimate selection of Judges.’[286] This unequivocally indicates that the malaise of executive interference in appointing judges to the superior judiciary, first highlighted in the Memorandum emanating from the Chief Justices Conference and then by the LCI in its 14th Report, continued in some form or the other through the entire period from Independence till the early 1990s. In addition, the recommendation given in the 14th Report of the LCI in Chapter 6 regarding the executive not being entitled to ‘propose a nominee of its own and forward it to the Centre’ was not given the due weight and consideration that it deserved from the executive.

116. Quite clearly, some complex issues arose in the matter of appointment of judges primarily due to the interference of the political executive and these needed consideration by a larger Bench. Well established and accepted constitutional conventions were sought to be disregarded by the political executive. If the independence of the judiciary was to be maintained and parliamentary democracy was to be retained, the First Judges case and the appointment process needed a fresh look.

4 Second Judges case – 6.10.1993

117. As mentioned above, the Second Judges case was the result of an acknowledgement that: (1) The existing system of appointment of judges in which the executive had the ‘ultimate power’ needed reconsideration since that ‘ultimate power’ was being abused; (2) The existing system of appointment of judges resulted in some appointments in which merit was overlooked due to executive interference or for extraneous considerations. The Chief Justice of the High Court was occasionally by-passed by the political executive and a recommendation for the appointment of a person as a judge of the High Court was made directly to the Union Government. This unfortunate situation had continued for more than 40 years and an attempt to bring about a change was made and so a Constitution Amendment Bill was introduced in Parliament, but it lapsed.

118. In the Second Judges case it was held by Justice Pandian: (1) The selection and appointment of a proper and fit candidate to the superior judiciary is one of the inseparable and vital conditions for securing the independence of the judiciary.[287] ‘The erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest...’[288] (2) Yet another facet of the independence of the judiciary is the separation between the executive and the judiciary (including the superior judiciary)[289] postulated by Article 50 of the Constitution.[290] (3) The Memorandum of Procedure for the selection and appointment of judges filed by the Union of India along with the written submissions relating to the pre First Judges case period and the extant procedure as mentioned in the 121st Report of the LCI relating to the post First Judges case period are more or less the same. They indicate that the recommendation for filling up a vacancy in the Supreme Court is initiated by the Chief Justice of India and the recommendation for filling up a vacancy in the High Court is initiated by the Chief Justice of the High Court. The Chief Minister of a State may recommend a person for filling up a vacancy in the High Court, but that is to be routed only through the Chief Justice of the High Court.[291] (4) Reiterating the view expressed in Sankalchand Sheth and the First Judges case it was held that for the purposes of consultation, the materials before the President and the Chief Justice of India must be identical.[292] (5) For the appointment of a judge of the Supreme Court (under Article 124(2) of the Constitution) or a judge of a High Court (under Article 217(1) of the Constitution) consultation with the Chief Justice of India is mandatory.[293] (6) In the process of constitutional consultation in selecting judges to the Supreme Court or the High Court and transfer of judges of the High Court, the opinion of the Chief Justice of India is entitled to primacy.[294] (7) Agreeing with the majority opinion written by Justice J.S. Verma, it was held that if there are weighty and cogent reasons for not accepting the recommendation of the Chief Justice of India for the appointment of a judge, then the appointment may not be made. However, if the ‘weighty and cogent’ reasons are not acceptable to the Chief Justice of India, and the recommendation is reiterated, then the appointment shall be made.[295] (8) The majority opinion in the First Judges case regarding the primacy of the executive in the matter of appointment of judges was overruled.[296]

119. Justice Ahmadi dissented with the opinion of the majority and concluded: (1) Judicial independence is ingrained in our constitutional scheme and Article 50 of the Constitution ‘illuminates it’.[297] (2) The First Judges case was not required to be overruled but on the question of primacy in the matter of appointment of judges, the opinion of the Chief Justice of India is entitled to ‘graded weight’.[298]

120. Justice Kuldip Singh agreed with the majority and laid great stress on constitutional conventions that had evolved over several decades. The learned judge held: (1) Security of tenure is not the only source of independence of the judiciary but ‘there has to be an independent judiciary as an institution.’[299] (2) Independence of the judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary. There cannot be an independent judiciary when the power of appointment of judges vests in the executive.[300] (3) The President is bound by the advice given by the Council of Ministers.[301] (4) A constitutional convention is established since the Government of India Act, 1935 (I would add the words ‘at least’) that the appointment of judges was invariably made with the concurrence of the Chief Justice of India. The opinion and recommendation of the Chief Justice of India in the matter of appointment of judges binds the executive.[302] (5) In the matter of appointment of judges, consultation with the Chief Justice of India is mandatory.[303] (6) In the consultation process under Article 124(2) and 217(1) of the Constitution, the advice and recommendation of the Chief Justice of India is binding on the executive and must be the final word. The majority view in the First Judges case does not lay down the correct law.[304] (7) For the purposes of Article 124(2) and 217(1) of the Constitution, the Chief Justice of India and the Chief Justice of the High Court mean the functionaries representing their respective Court.[305]

121. One of the more interesting facts pointed out by Justice Kuldip Singh is that from 1st January, 1983 (after the decision in the First Judges case) till 10th April, 1993 (that is during a period of ten years) the opinion of the Chief Justice of India was not accepted by the President in as many as seven cases. This is worth contrasting with a part of the period before the ‘ultimate power’ theory was propounded when the opinion of the Chief Justice of India was not accepted by the President only in one case and in that case, the opinion of the Chief Justice of the High Court (not the political executive) was accepted. This is what the learned judge had to say:

“Mr S.K. Bose, Joint Secretary, Department of Justice, Ministry of Law and Justice has filed an affidavit dated April 22, 1993 before us. In para 6 of the said affidavit it is stated as under:

“As regards the appointments of Judges made, not in consonance with the views expressed by the Chief Justice of India, it is respectfully submitted that since January 1, 1983 to April 10, 1993, there have been only seven such cases, five of these were in 1983 (2 in January 1983, 2 in July 1983, 1 in August 1983); one in September 1985 and one in March 1991, out of a total of 547 appointments made during this period.” It is thus obvious from the facts and figures given by the executive itself that in actual practice the recommendations of the Chief Justice of India have invariably been accepted.”[306]

122. Justice Verma speaking for the majority held: (1) Independence of the judiciary has to be safeguarded not only by providing security of tenure and other conditions of service, but also by preventing political considerations in making appointments of judges to the superior judiciary.[307] (2) In the matter of appointment of judges, primacy was given to the executive in the Government of India Act, 1919 and the Government of India Act, 1935 but in the constitutional scheme, primacy of the executive is excluded.[308] (3) The Chief Justice of India and the Chief Justice of the High Court are ‘best equipped to know and assess the worth of a candidate, and his suitability for appointment as a superior judge.’ In the event of a difference of opinion between the executive and the judiciary, the opinion of the Chief Justice of India should have the greatest weight. [This echoed Dr. Ambedkar’s view that consultation would be between persons who are well qualified to give advice in matters of this sort.] Therefore, since primacy is not with the executive, then in such a situation, it must lie with the Chief Justice of India.[309] This certainly does not exclude the executive from the appointment process. The executive might be aware (unlike a Chief Justice) of some antecedents or some information relatable to the personal character or trait of a lawyer or a judge which might have a bearing on the potential of a person becoming a good judge.[310] This might form the basis for rejecting a recommendation for the appointment of a person as a judge by the Chief Justice of India.[311] (4) Primacy of the opinion of the Chief Justice of India is not to his/her individual opinion but to the collective opinion of the Chief Justice of India and his/her senior colleagues or those who are associated with the function of appointment of judges.[312] Therefore, the President may not accept the recommendation of a person for appointment as a judge, if the recommendation of the Chief Justice of India is not supported by the unanimous opinion of the other senior judges.[313] The President may return for reconsideration a unanimous recommendation for good reasons. However, in the latter event, if the Chief Justice of India and the other judges consulted by him/her, unanimously reiterate the recommendation ‘with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.’[314] (The key word here is unanimous – both at the stage of the initial recommendation and at the stage of reiteration).

(5) For appointing a judge of the Supreme Court or the High Court, consultation with the Chief Justice of India or the Chief Justice of the High Court is mandatory.[315] (6) The President in Articles 124(2) and 217(1) of the Constitution means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head.[316] (7) The advice given by the Council of Ministers to the President should be in accord with the Constitution. Such an advice is binding on the President. Since the opinion of the Chief Justice of India (representing the Judiciary) has finality, the advice of the Council of Ministers to the President must be in accordance with the opinion of the Chief Justice of India.[317] (8) The convention is that the appointment process is initiated by the Chief Justice of India for the appointment of a judge to the Supreme Court and by the Chief Justice of the High Court for the appointment of a judge to the High Court. There is no reason to depart from this convention.[318] (9) The law laid down in the First Judges case is not the correct view.[319]

123. In his otherwise dissenting opinion, Justice Punchhi supported the view taken by Justice Verma to the extent that the executive could not disapprove the views of the Chief Justice of India or the views of the Chief Justice of the High Court (as the case may be) when a recommendation is made for the appointment of a judge to a superior court.[320]

124. The most significant feature of the Second Judges case is that it introduced what has come to be called a ‘collegium system’ of consultation for the appointment of judges of the Supreme Court and the High Courts. As far as the Chief Justice of India is concerned, the collegium system broad- based his/her role in the appointment of judges of the High Courts and the Supreme Court and (in one sense) diluted his/her role in the appointment process by taking it out of the individualized or personalized role of the Chief Justice of India as thought of by Dr. Ambedkar. The consultative role of the Chief Justice of India in Article 124 of the Constitution was radically transformed through a pragmatic interpretation of that provision. How did this happen?

125. In the Second Judges case certain norms were laid down by Justice Verma in the matter of appointment of judges. These norms were: For the appointment of judges in the Supreme Court, the Chief Justice of India must ascertain the views of the two senior-most judges of the Supreme Court and of the senior-most judge in the Supreme Court from the High Court of the candidate concerned. Through this process, the individual opinion of the Chief Justice of India was substituted by the collective opinion of several judges. In this sense the opinion of the Chief Justice of India in the consultative process was made broad-based and ceased to be individualized. At this stage it is worth recalling the words of Dr. Ambedkar that ‘the Chief Justice, despite his eminence, had all the failings, sentiments and prejudices of common people.’ The apprehension or fear that Dr. Ambedkar had in this regard in case the Chief Justice of India were to act in an individual or personal capacity was now buried.[321] A somewhat similar norm was laid down for consultation for the appointment of a judge of the High Court. This is what was said:

“This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two seniormost Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain 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, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

In matters relating to appointments in the High Courts, 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 whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two seniormost Judges of the High Court.”[322]

126. The importance of the role of the Chief Justice of India was acknowledged in that it was observed that the constitutional convention was that no appointment should be made by the President under Article 124(2) and Article 217(1) of the Constitution unless it was in conformity with the final opinion of the Chief Justice of India. It was said: “The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.”[323]

127. The ‘manner indicated’ was that if a recommendation is returned by the executive (for cogent reasons) to the Chief Justice of India and the Chief Justice of India reiterates the recommendation with the unanimous agreement of the judges earlier consulted, then the appointment should be made ‘as a matter of healthy convention’. This is what was said in this context:

“Non-appointment of anyone recommended, on the ground of unsuitability, 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. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. 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.”[324]

128. The norms took the form of conclusions that became binding on the Judiciary and the Executive. It is not necessary to reproduce the conclusions arrived at.

129. An important aspect of the appointment process, which was adverted to by Justice Verma, is the constitutional convention that the recommendation must be initiated by and must originate from the Chief Justice of the High Court (for appointment to the High Court) and from the Chief Justice of India (for appointment to the Supreme Court). In the event the Chief Minister of a State recommends a person for appointment as a judge of the High Court, it must be routed only through the Chief Justice of the High Court. It is then for the said Chief Justice to consult his colleagues (and others, if necessary) and decide whether or not the person should be formally recommended. If the Chief Justice of the High Court recommends that person, the procedure as mentioned in the Second Judges case would thereafter follow. If the Chief Justice of the High Court decides not to recommend that person for appointment, the matter stands closed and, therefore, the question of making an appointment without the consent of the Chief Justice of India simply does not and cannot arise. It is this constitutionally and conventionally accepted procedure, which is apparently not acceptable to the political executive, that has led to the political executive by-passing the Chief Justice of a High Court and directly recommending to the Union Government a person for appointment as a judge of the High Court. Be that as it may, the majority view expressed in the Second Judges case restored the constitutional position envisaged by Dr. Ambedkar by diluting the individual authority of the Chief Justice of India and conferring it on a collegium of judges, which is perhaps in consonance with the views of Dr. Ambedkar.

130. According to the learned Attorney-General, these conclusions turned Article 124(2) and Article 217(1) of the Constitution ‘on their head’ and even Justice Verma, the author of the judgment felt that the decision required a rethink. The reference was to an interview given by Justice Verma post his retirement. In that, it was said by Justice Verma: “My 1993 judgment which holds the field, was very much misunderstood and misused. It was in that context that I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore some kind of rethink is required.”[325]

131. It appears that the misunderstanding of the decision in the Second Judges case continues even today, especially by the political executive. The misunderstanding is not due to any lack of clarity in the decision rendered by this Court but due to the discomfort in the ‘working of the judgment’. I say this because it was submitted by the learned Attorney- General and learned counsel for some States that the Second Judges case left the executive with no role (or no effective role) to play in the appointment of a judge of the Supreme Court or the High Court particularly since the opinion of the executive is now rendered meaningless. Nothing can be further from the truth. The executive continues to have a vital role to play and in some cases, the final say in the appointment of a judge – the misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of judges, it is their way or the highway. The Constitution of India is a sacred document and not a Rubik’s cube that can be manipulated and maneuvered by the political executive any which way only to suit its immediate needs.

132. In an article found on the website of the Tamil Nadu State Judicial Academy, Justice Verma adverted to the appointment process in the Second Judges case and the role of the executive and said:

“The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive to make the appointment.

Some reported instances in the recent past of the executive failing to perform its duty by exercise of this power even when the recommendation of the judicial collegium was not unanimous and the then President of India had returned it for reconsideration, are not only inexplicable but also a misapplication of the decision, which the CJI, Balakrishnan rightly says is binding during its validity. Such instances only prove the prophecy of Dr. Rajendra Prasad that the Constitution will be as good as the people who work it. Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.”[326] A little later in the article Justice Verma says (and this is also adverted to in the interview referred to by the learned Attorney-General): “The recent aberrations are in the application of the Second Judge’s case in making the appointments, and not because of it. This is what I had pointed out in my letter of 5 December 2005 to CJI, Y.K.Sabharwal with copy to the two senior most judges, who included the present CJI, K.G.Balakrishnan.”

133. The misunderstanding is, therefore, of the political executive and no one else. However, as pointed out by the learned Attorney-General, the merits or demerits of the Second Judges case is not in issue after the 99th Constitution Amendment Act and therefore no further comment is made, although it must be said, quite categorically, that the political executive has completely misunderstood the scope and impact of the Second Judges case and the working of the collegium system.

5 Third Judges case – 28.10.1998

134. Special Reference No. 1 of 1998 is commonly referred to as the Third Judges case. The President sought the advisory opinion of this Court under Article 143 of the Constitution on the following, amongst other, questions: “(1) whether the expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles. (3) whether Article 124(2) as interpreted in the said judgment [Second Judges case] requires the Chief Justice of India to consult only the two seniormost Judges or whether there should be wider consultation according to past practice.

(4) whether the Chief Justice of India is entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court in respect of all materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment;”

135. At the outset, it must be noted that the learned Attorney-General stated at the hearing of the Presidential Reference that the Central Government was neither seeking a review nor a reconsideration of the Second Judges case. Therefore, the answers to the Presidential Reference do not depart from the conclusions arrived at by this Court in the Second Judges case. In that sense, this opinion did not take the substantive discussion much further though it substantially resolved some procedural issues and filled in the gaps relating to the process of appointment of judges to the superior judiciary. In any event, the answers to the three questions mentioned above are:

“1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.

3. 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 seniormost 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 seniormost puisne Judges of the Supreme Court.

4. 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.”[327]

136. The decision in the Second Judges case read with the opinion given by this Court to the various questions raised in the Presidential Reference or the Third Judges case fully settled the controversies surrounding the procedure to be adopted in the appointment of judges to the superior judiciary. Issues of primacy of views and consultation with the Chief Justice of India were all answered by the decision and the opinion.

137. It is important to note that the Third Judges case modified one important norm or conclusion of the Second Judges case. The modification was that the ‘collegium’ for appointment of judges in the Supreme Court was expanded to consist of the Chief Justice of India and four senior-most judges rather than the two senior-most judges as concluded in the Second Judges case. In this manner, the consultation with the Chief Justice of India was further broad-based. It was clarified in conclusion 9 as follows: “9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India.” This conclusion is important, but seems to have been ignored or overlooked by the President.

6 Samsher Singh’s case 8 138. For a complete picture of the judicial pronouncements on the subject, it is also necessary to refer to the decision rendered by this Court in Samsher Singh v. State of Punjab.[328]

139. This case related to the termination of the services of two officers of the subordinate judicial service by the Governor of the State. The issue was whether the Governor could exercise his discretion in the matter personally or should act on the advice of the Council of Ministers. The judicial officers contended that the Governor was obliged to exercise his personal discretion and reliance was placed on Sardari Lal v. Union of India[329] in which it was held that for invoking the ‘pleasure doctrine’ under Article 311(2) of the Constitution, the personal satisfaction of the President is necessary for dispensing with an inquiry under clause (c) of the proviso to Article 311(2) of the Constitution. On the other hand, the State contended that the Governor was obliged to act only on the advice of the Council of Ministers.

140. This Court speaking through Chief Justice A.N. Ray (for himself and four other learned judges) overruled Sardari Lal and held that the decision did not correctly state the law. It was held that under the Rules of Business, the decision of the concerned Minister or officer is the decision of the President or the Governor as the case may be. It was then concluded: “For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.”[330]

141. In a separate but concurring judgment authored by Justice Krishna Iyer (for himself and Justice Bhagwati) the view expressed by Chief Justice Ray was accepted in the following words:

“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.”[331]

142. An additional reason was given by the two learned judges for coming to this conclusion and that is also important for our present purposes. The additional reason relates to the independence of the judiciary. For this, reference was made to Jyoti Prokash Mitter v. Chief Justice, Calcutta.[332] The question in that case related to the determination of the age of a sitting judge of the High Court under Article 217(3) of the Constitution.[333] This Court held that the age determination should be by the President uninfluenced by the views of the executive. This was on the ground that were the executive to make the determination of the age of a sitting judge, it would ‘seriously affect the independence of the Judiciary.’ This view was subsequently reiterated in Union of India v. Jyoti Prokash Mitter.[334]

143. The learned judges then held, on the basis of the scheme of the Constitution that had already been adverted to, that the President means the Council of Ministers and the independence of the judiciary has been safeguarded by Article 217(3) of the Constitution by making mandatory the consultation with the Chief Justice of India in regard to age determination. This would prevent the possibility of extraneous considerations entering into the decision of the Minister if he/she departs from the views of the Chief Justice of India. It was held that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the executive and if there is a departure from the views of the Chief Justice of India, the Court can examine the issue in the light of the available facts. In such a ‘sensitive subject’ the last word should be with the Chief Justice of India. On this interpretation, it becomes irrelevant who formally decides the issue. This is what was held: “In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”[335]

144. This decision is important for three key reasons: (1) It recognized, judicially, the independence of the judiciary. (This was before the First Judges case which recognized that the independence of the judiciary was a basic feature of the Constitution). (2) It cleared the air by concluding that the President was obliged to act on the advice of the Council of Ministers, even on the issue of appointment of judges. This was ‘formalized’ by the Constitution (Forty-second Amendment) Act, 1976. (3) In a sense, this decision was a precursor to the primacy conclusion in the Second Judges case with the last word on the subject being with the Chief Justice of India.

145. There are two observations that need to be made at this stage. Firstly, Justice Krishna Iyer penned the decision in Samsher Singh on behalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did not refer to this decision in the First Judges case. The significance of this failure is that while in Samsher Singh it was held by Justice Bhagwati that the ‘last word’ must belong to the Chief Justice of India, in the First Judges case it was held by Justice Bhagwati that the ‘ultimate power’ is with the executive. This completely divergent view, though in different circumstances, is inexplicable since the underlying principle is the same, namely, the status of the Chief Justice of India with reference to the affairs concerning the judiciary. The second observation is that the ‘last word’ theory was not and has not been questioned by the executive in any case, even in the Second Judges case. Therefore, the ‘last word’ principle having been accepted, there is now no reason to go back on it or to repudiate it. It may be mentioned in the ‘last word’ context that ever since the Constitution came to be enacted, writes Granville Austin, quoting from Chief Justice Mehr Chand Mahajan’s ‘A Pillar of Justice’: “Nehru ‘has always acted in accordance with the advice of the CJI’, he recalled, except in rare circumstances, despite efforts by state politicians with ‘considerable pull’ to influence him.”[336] 9 Sankalchand Sheth’s case

146. Another decision of considerable significance is Union of India v. Sankalchand Himatlal Sheth.[337] That case pertained to the transfer of judges from one High Court to another and the interpretation of Article 222(1) of the Constitution.[338] Referring to the independence of the judiciary as also Article 50 of the Constitution it was said by Justice Y.V. Chandrachud:

“Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independence of the judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State.”

147. On the meaning of consultation by the President with the Chief Justice of India in the context of Article 222 of the Constitution, it was held that it has to be full and effective consultation and not formal or unproductive. It was said:

“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. But there can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that 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. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive, consultation.”[339]

148. It was observed that though ‘consultation’ did not mean ‘concurrence’ yet, as held in Samsher Singh consultation with the Chief Justice of India should be accepted and in such a sensitive subject the last word must belong to the Chief Justice of India. It was noted that if there is a departure from the counsel of the Chief Justice of India, the Court would have the opportunity to examine if any extraneous considerations entered into the decision.[340]

149. This view was reiterated by Justice Krishna Iyer (for himself and Justice Fazl Ali).[341] Significantly, it was added that: ‘It seems to us that the word, ‘consultation’ has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India.’[342]

150. The greater significance of Sankalchand Sheth lies in the conclusion, relying upon R. Pushpam, that for a meaningful consultation, both parties must have for consideration full and identical facts. It was said: “The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution”. In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.”[343]

151. This view was accepted in the First Judges case by Justice Bhagwati,[344] Justice Fazal Ali,[345] Justice V.D. Tulzapurkar[346] and Justice D.A. Desai.[347] It was also accepted in the Second Judges case by Justice Pandian.[348] Memorandum of Procedure – 30.6.1999

152. Following up on the decision and opinion rendered in the Second Judges case and the Third Judges case, the Minister for Law in the Government of India framed and prepared one Memorandum of Procedure for the appointment of a judge of the Supreme Court and another for the appointment of a judge of the High Court. These were shared with the Chief Justice of India. None of the each successive Chief Justices of India have complained or criticized any of the Memoranda or adversely commented on them, or at least we have not been told of any such complaint or objection. No one, including any successive Law Minister of the Government of India, complained that the Memoranda were unworkable or caused any hindrance or delay in the appointment of judges or did not correctly reflect the views of this Court in the two decisions mentioned above or that they did not conform to any provision of the Constitution, either in letter or in spirit or even otherwise, or at least we have not been told of any such constraint. These Memoranda remained operational and the appointment of judges to the superior judiciary made subsequent thereto has been in conformity with them. No one complained about the inability to effectively work any Memorandum of Procedure.

153. We were invited by Mr. Fali S. Nariman to mention the procedure for the appointment of judges both in public interest and for reasons of transparency. The Memorandum of Procedure for the appointment of judges of the Supreme Court and the High Court are available on the website of the Department of Justice of the Government of India[349] and therefore it is not necessary to make a detailed mention of the procedure. Similar Memoranda have been referred to in the Second Judges case by Justice Pandian.[350]

154. A reading of the Memoranda makes it explicit that a proposal recommending the appointment of a judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Although it is not clearly spelt out, it is implicit that the Chief Justice is not obliged to accept the suggestion of the Chief Minister.

155. It is also significant and important to note that in the Memoranda, consultation by the judges in the collegium with ‘non-judges’ for making an appointment to the Supreme Court is postulated and it is not prohibited for making an appointment to the High Court. That is to say, a ‘collegium judge’ is not prohibited from taking the opinion of any person, either connected with the legal profession or otherwise for taking an informed decision regarding the suitability or otherwise of a person for appointment as a judge of the High Court or the Supreme Court. That this is not unknown is clear from a categorical statement of Justice Verma in an interview that:

“For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult even lawyers belonging to the middle level. Similar consultation took place in the case of High Courts. I recorded details of every consultation. I wish all my correspondence is made public.”

156. Therefore, during the evolution of the system of appointment of judges four cobwebs were cleared. They were: (1) The role of the President – he/she was expected to act on the advice of the Council of Ministers even in the appointment of judges; (2) The initial recommendation for the appointment of a judge of a High Court was to originate from the Chief Justice of the High Court and for the appointment of a judge of the Supreme Court from the Chief Justice of India; (3) Consultation between the President and the Chief Justice of India is an integrated participative process with the result that the President has the final say in the appointment of a judge under certain circumstances and the Chief Justice of India (in consultation with and on the unanimous view of the other judges consulted by him/her) has the final say under certain circumstances; and (4) The Union of India accepted these propositions without hesitation in the Third Judges case.

Amendments to the Constitution

157. Apart from judicial discourses on the appointment of judges, Parliament too has had its share of discussions. On as many as four occasions, it was proposed to amend the Constitution in relation to the procedure for the appointment of judges of the Supreme Court and the High Courts. These proposed amendments are considered below.

1 (a) The Constitution (Sixty-seventh Amendment) Bill, 1990

158. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced in the Lok Sabha on 18th May, 1990 and it proposed to set up a National Judicial Commission (for short the NJC), though not in line with the recommendations of the LCI. The composition of the NJC was to vary with the subject matter of concern, namely, the appointment of a judge of the Supreme Court or the appointment of a judge of the High Court.

159. For the appointment of a judge of the Supreme Court, in terms of the proposed Article 307A of the Constitution, the NJC was to consist of the Chief Justice of India and two other judges of the Supreme Court next in seniority to the Chief Justice of India. For the appointment of a judge of the High Court, the NJC was to consist of the Chief Justice of India, the Chief Minister or Governor (as the case may be) of the concerned State, one other judge of the Supreme Court next in seniority to the Chief Justice of India, the Chief Justice of the High Court and the judge of the High Court next in seniority to the Chief Justice of the High Court. There was no provision for the appointment of the Chief Justice of India or the Chief Justice of the High Court.

160. The procedure for the transaction of business of the NJC was to be determined by the President in consultation with the Chief Justice of India and was subject to any law made by Parliament.

161. The Amendment Act also provided that in the event the recommendation of the NJC is not accepted, the reasons therefor shall be recorded in writing.

162. The Bill was criticized (in part) by the Arrears Committee which stated that:

“The Committee is unable to find any logic or justification for different commissions….Keeping in view the objects and reasons for the constitution of the commission, namely, to obviate the criticism of executive arbitrariness in the matter of appointment and transfer of High Court judges and to prevent delay in making appointments, there is no justification for the executive through the Chief Minister to be on the commission. Instead of removing the vice of executive interference which has vitiated the working of the present system the presence of the Chief Minister on the recommendatory body actual alleviates him from the status of a mere consultee to the position of an equal participant in the selection process of the recommendatory body. By making the Chief Minister an equal party when he is not equipped to offer any view in regard to the merit, ability, competency, integrity and suitability of the candidates for appointments, the scope of executive interference is enhanced.”[351]

2 The third preliminary objection and the separation of powers

194. The issue of the separation of powers has been the subject matter of discussion in several cases. Broadly, the consistent view of this Court has been that while the Constitution recognizes the separation of powers, it is not a rigid separation and there is some overlap.

195. In Ram Jawaya Kapur v. State of Punjab[364] it was held by Chief Justice Mukherjea speaking for this Court:

“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law.”[365]

196. The separation of powers in our Constitution is not as rigid as in the United States. One of the elements of the separation of powers is the system of checks and balances. This too is recognized by our Constitution and Article 226 and Article 32 (judicial review) is one of the features of checks and balances. It was so held in Kesavananda Bharati v. State of Kerala[366] where it was said by Justice Shelat and Justice Grover as follows:

“There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre- dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree as was found in Ranasinghe case.[367] The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances.”[368]

197. In Indira Nehru Gandhi v. Raj Narain[369] the constitutional validity of the Constitution (Thirty-ninth Amendment) Act, 1975 was challenged. By this Amendment Act, Article 39-A was inserted in the Constitution and the challenge was, inter alia, to clause (4) thereof.[370] While striking down the offending clause, it was held by Justice H.R. Khanna: “A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd., Municipal Corporation of the City of Ahmedabad v. New Shorock Spg. & Wvg. Co. Ltd. and State of Tamil Nadu v. M. Rayappa Gounder).”[371] (Internal citations omitted).

198. Justice Mathew held that ours is a cooperative federalism that does not contain any rigid separation of powers and there exists a system of checks and balances. Harold Laski was quoted as saying that ‘Separation of powers does not mean the equal balance of powers.’[372] In that context it was held that the exercise of judicial power by the Legislature is impermissible. The learned judge expressed the view that: “Montesquieu was the first to conceive of the three functions of Government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of Government involved a certain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As Holdsworth says, Montesquieu convinced the world that he had discovered a new constitutional principle which was universally valid. The doctrine of separation of governmental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three watertight compartments. Thus, legislative impeachment of executive officers or judges, executive veto over legislation, judicial review of administrative or legislative actions are treated as partial exceptions which need explanation.”[373]

199. Justice Y.V. Chandrachud made a distinction between the separation of powers as understood in the United States and Australia and as understood in India and expressed the following view in this regard: “The American Constitution provides for a rigid separation of governmental powers into three basic divisions, the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v. Ryan[374] the principle of separation of powers “is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety”. Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive, a host of rules and regulations are passed by non- legislative bodies, which have been judicially recognized as valid.”[375]

200. In Minerva Mills Ltd. v. Union of India[376] Justice Bhagwati opined that the Constitution has devised a structure for the separation of powers and checks and balances and held:

“It is clear from the majority decision in Kesavananda Bharati case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.”[377]

201. A little later, it was observed by the learned judge:

“It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of government are divided; the executive, the legislature and the judiciary. Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that “the concentration of powers in any one organ may” to quote the words of Chandrachud, J., (as he then was) in Indira Gandhi case ‘by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged’.”[378]

202. In I.R. Coelho v. State of Tamil Nadu[379] it was held by Chief Justice Sabharwal speaking for the Court that the doctrine of separation of powers is a part of the basic structure of the Constitution. It was held: “The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati case by the majority. Later, it was reiterated in Indira Gandhi case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.”[380]

203. In Bhim Singh v. Union of India[381] it was held that separation of powers is an essential feature of the Constitution and in modern governance strict separation is neither possible nor desirable. There is no violation of the principle of separation of powers if there is an overlap of the function of one branch of governance with another, but if one branch takes over an essential function of another branch, then there is a violation of the principle. It was observed by Justice Sathasivam speaking for the Court, while considering the constitutional validity of the Members of Parliament Local Area Development Scheme:

“The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government. While understanding this concept [of separation of powers], two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability.

Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability.”[382]

204. Finally, in State of Tamil Nadu v. State of Kerala[383] there is an elaborate discussion on the separation of powers with reference to several cases decided by this Court.[384] It was held therein that in view of the doctrine of the separation of powers (and for other reasons as well) the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala Legislature is unconstitutional since it seeks to nullify the decision of this Court in Mullaperiyar Environmental Protection Forum v. Union of India.[385]

Independence of the judiciary – its nature and content

303. What are the attributes of an independent judiciary? It is impossible to define them, except illustratively. At this stage, it is worth recalling the words of Sir Ninian Stephen, a former Judge of the High Court of Australia who memorably said: ‘[An] independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed.’[497] It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary.

304. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips[498] said: ‘In order to be impartial a judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.’

305. As far as individual independence is concerned, the Constitution provides security of tenure of office till the age of 65 years for a judge of the Supreme Court.[499] However, the judge may resign earlier or may be removed by a process of impeachment on the ground of proved misbehavior or incapacity.[500] To give effect to this, Parliament has enacted the Judges (Inquiry) Act, 1968. The procedure for the impeachment of a judge is that a motion may be passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than 2/3rd members of that House present and voting in the same session. To maintain the integrity and independence of the judiciary, the impeachment process is not a cake walk.

306. A judge’s salary, privileges, allowances, leave of absence and pension and such other privileges, allowances and rights mentioned in the Second Schedule of the Constitution are protected and will not be varied to his/her disadvantage after appointment.[501] To give effect to this, Parliament has enacted the Supreme Court Judges (Conditions of Service) Act, 1958.

307. The salary, allowances and pension payable to or in respect of a judge of the Supreme Court is charged to the Consolidated Fund of India.[502] The estimate of this expenditure may be discussed but shall not be submitted to the vote of Parliament.[503]

308. As far as this subject is concerned in respect of a judge of the High Court, there is an extensive reference in Sankalchand Sheth. Broadly, the constitutional protections and provisions for a judge of the High Court are the same as for a judge of the Supreme Court.

309. A judge of the High Court has security of tenure till the age of 62 years[504] and the removal process is the same as for a judge of the Supreme Court.[505] The salary, privileges, allowances, right of leave of absence and pension etc. are protected by Article 221 of the Constitution. While the salary and allowances are charged to the Consolidated Fund of the State,[506] the pension payable is charged to the Consolidated Fund of India.[507] As in the case of the Supreme Court, the estimate of this expenditure may be discussed but shall not be submitted to the vote of the Legislative Assembly.[508] The conditions of service of a High Court judge are governed by the High Court Judges (Salaries and Conditions of Service) Act, 1954 in terms of Article 221 of the Constitution.

310. The entire package of rights and protections ensures that a judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a judge. This does not mean that a judge may take whatever decision he/she desires to take. The parameters of decision making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that judges can do as they please.

311. In this context, Justice Anthony M. Kennedy of the US Supreme Court had this to say before the United States Senate Committee on the Judiciary (Judicial Security and Independence) on 14th February, 2007: “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must. A judiciary with permanent tenure, with a sufficient degree of separation from other branches of government, and with the undoubted obligation to resist improper influence is essential to the Rule of Law as we have come to understand that term.”[509]

312. As far as decisional independence is concerned, a good example of the protection is to be found in Anderson v. Gorrie[510] where it was said by Lord Esher M.R.:

“the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.” Explaining this, Lord Bridge of Harwich said in McC (A Minor), Re[511]:

“The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.”

313. As far as institutional independence is concerned, our Constitution provides for it as well. For the Supreme Court, institutional independence is provided for in Article 129 which enables the institution to punish for contempt of itself. A similar provision is made for the High Court in Article 215. The law declared by the Supreme Court shall be binding on all courts within the territory of India.[512] All authorities, civil and judicial are obliged to act in aid of the Supreme Court.[513] The Supreme Court is entitled to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and such decree or order shall also be enforceable throughout the territory of India.[514] Subject to a law made by Parliament, the Supreme Court is entitled to frame rules to regulate its practice and procedure.[515] The Chief Justice of India is empowered to appoint officers and ‘servants’ of the Supreme Court but their conditions of service shall be regulated by rules made by the Supreme Court (subject to approval by the President) or by law made by Parliament. [516] The administrative expenses of the Supreme Court, including expenses related to its officers and ‘servants’ shall be charged upon the Consolidated Fund of India.[517]

314. Significantly, no discussion shall take place in Parliament with respect to the conduct of a judge of the Supreme Court or the High Court, except in proceedings for impeachment.[518] Similarly, the Legislature of a State shall not discuss the conduct of a judge of the Supreme Court or the High Court in the discharge of his or her duties.[519]

315. In addition to the above, there are other general protections available to an individual judge or to the institution as such. Through Article 50[520] which is a provision in Part IV of the Constitution (Granville Austin in ‘The Constitution: Cornerstone of a Nation’ describes Part III and Part IV of the Constitution as ‘the conscience of the Constitution’)[521] the judiciary shall be insulated from executive interference. Justice Krishna Iyer speaking for himself and Justice Fazl Ali pointed out in Sankalchand Sheth that:

“Under the general law of civil liability (Tort) words spoken or written in the discharge of his judicial duties by a Judge of the High Court are absolutely privileged and no action for defamation can lie in respect of such words. This absolute immunity is conferred on the Judges on the ground of public policy, namely, that they can thereby discharge their duty fearlessly.”[522]

316. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides, inter alia, that no court shall entertain or continue any civil or criminal proceeding against any person who is or was a judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. This is in addition to the protection given by Section 77 of the Indian Penal Code which provides that: ‘Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.’

317. In the overall conspectus and structure of the independence of the judiciary, it was stated in the First Judges case by Justice D.A. Desai that: ‘Independence of judiciary under the Constitution has to be interpreted within the framework and the parameters of the Constitution.’[523] It may be added that the framework and parameters of the law are also required to be taken into consideration. Justice Bhagwati put it quite succinctly when he said:

“The concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.”[524]

318. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is ‘decisional independence’. It is also manifested in the ability of the institution to have ‘functional independence’. A comprehensive and composite definition of ‘independence of the judiciary’ is elusive but it is easy to perceive.

Challenge to the 99th Constitution Amendment Act – the preliminaries 1 (a) Limitations to the challenge

391. The first submission made by the learned Attorney-General for upholding the constitutionality of the 99th Constitution Amendment Act was on the basis of Kesavananda Bharati. It was submitted that a Constitution Amendment Act can be challenged as violating the basic structure of the Constitution within limited parameters, that is, only if it ‘emasculates’ the Constitution, or ‘abrogates’ it or completely changes its fundamental features so as to destroy its identity or personality or shakes the pillars on which it rests. While accepting that the independence of the judiciary is one such pillar, it was submitted that a change in the method and procedure in the appointment of a judge of the Supreme Court or a High Court does not emasculate, abrogate or shake the foundations or the pillars of the independence of the judiciary. Consequently the 99th Constitution Amendment Act does not fall foul of the basic structure of the Constitution.

392. This argument fails to appreciate that a majority of the learned judges constituting the Bench that decided Kesavananda Bharati were of the opinion that it is enough to declare a constitutional amendment as violating the basic structure if it alters the basic structure. Undoubtedly, some of the learned judges have used very strong words in the course of their judgment – emasculate, destroy, abrogate, and substantially change the identity etc. but when it came to stating what is the law actually laid down, the majority decided that ‘Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.’[580]

393. This was reiterated and explained by Justice Khanna in Indira Nehru Gandhi. The words ‘destroy’ and ‘abrogate’ etc. were used with reference to the words ‘amendment’ and ‘amendment of the Constitution’ which is to say that ‘amendment’ and ‘amendment of the Constitution’ cannot be interpreted expansively as meaning ‘destroy’ or ‘abrogate’ etc. but have a limited meaning. The words ‘destroy’ and ‘abrogate’ etc. were not used in the context of destroying or abrogating the basic structure of the Constitution. The learned judge clearly said that ‘the power of amendment under Article 368 [of the Constitution] does not enable the Parliament to alter the basic structure of [or] framework of the Constitution….’ In fact, this was the precise submission of learned counsel for the election petitioner, namely, that the constitutional amendment ‘affects the basic structure or framework of the Constitution and is, therefore, beyond the amending power under Article 368 [of the Constitution].’[581] The learned judge explained this crucial distinction in the following words: “The proposition that the power of amendment under Article 368 does not enable Parliament to alter the basic structure of framework of the Constitution was laid down by this Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharati v. State of Kerala. Apart from other reasons which were given in some of the judgments of the learned Judges who constituted the majority, the majority dealt with the connotation of the word “amendment”. It was held that the words “amendment of the Constitution” in Article 368 could not have the effect of destroying or abrogating the basic structure of the Constitution. Some of us who were parties to that case took a different view and came to the conclusion that the words “amendment of the Constitution” in Article 368 did not admit of any limitation. Those of us who were in the minority in Kesavananda case may still hold the same view as was given expression to in that case. For the purpose of the present case, we shall have to proceed in accordance with the law as laid down by the majority in that case.”[582]

394. While dealing with the constitutional validity of Clause (4) of Article 329-A of the Constitution as introduced by the 39th Constitution Amendment Act, Justice Khanna expressed the view that if a principle, imperative rule or postulate of the basic structure of the Constitution is violated, then the constitutional amendment loses its immunity from attack.

“The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution remains unaffected. The answer to the above question, in my opinion, should be in the negative. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever the authority concerned deems it proper to make such an amendment, it can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited cannot become permissible because of its being confined to one matter.”[583] In conclusion it was said by Justice Khanna as follows:

“As a result of the above, I strike down clause (4) of Article 329-A on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election.”[584]

395. Similarly, Justice K.K. Mathew who was in the minority in Kesavananda Bharati expressed the view (in Indira Nehru Gandhi) that the majority decision was that by an amendment, the basic structure of the Constitution cannot be damaged or destroyed, and the learned judge proceeded on that basis and held that Clause (4) of Article 329-A of the Constitution as introduced by the 39th Constitution Amendment Act damaged or destroyed the basic structure of the Constitution.[585]

396. Justice Y.V. Chandrachud who too was in the minority in Kesavananda Bharati took the view that according to the majority opinion in that decision the principle that emerged was that Article 368 of the Constitution ‘does not confer power on Parliament to alter the basic structure or framework of the Constitution.’[586] The learned judge further said that the ratio decidendi in Kesavananda Bharati was that ‘the power of amendment [in Article 368 of the Constitution] cannot be exercised to damage or destroy the essential elements or basic structure of the Constitution, whatever these expressions may comprehend.’[587]

397. The issue again came up for consideration in Minerva Mills v. Union of India.[588] The question in that case was whether Section 4 and Section 55 of the 42nd Constitution Amendment Act transgress the limitation of the amending power of Article 368 of the Constitution. Speaking for himself and the other learned judges in the majority (Justice A.C Gupta, Justice N.L. Untwalia and Justice P.S. Kailasam) it was held by Chief Justice Chandrachud that:

“In Kesavananda Bharati, this Court held by a majority that though by Article 368 Parliament is given the power to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure. The question for consideration in this group of petitions under Article 32 is whether Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation on the amending power.”[589] A little later in the judgment, it was held as follows:

“The summary of the various judgments in Kesavananda Bharati was signed by nine out of the thirteen Judges. Para 2 of the summary reads to say that according to the majority, “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.

The question which we have to determine on the basis of the majority view in Kesavananda Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.”[590] It appears from the above exposition of the ratio decidendi in Kesavananda Bharati that the words ‘alter’ and ‘damage’ are used interchangeably. Similarly, ‘damage the basic features’ and ‘destroy the basic structure’ are used interchangeably with ‘damage the basic structure’ and ‘destroy the basic features’.[591] The bottom line is what is contained in the ‘summary’ of Kesavananda Bharati, namely: Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. There are two reasons for this. Firstly, it is a contemporaneous exposition of the views of the majority in Kesavananda Bharati and there is no other or different exposition and secondly, the exposition is by the majority of judges themselves (including two in the minority) and by no other.

398. It may be mentioned that some misgivings were expressed ‘about’ Minerva Mills in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd.[592] The misgivings were not spelt out by the Bench except that it is stated that the case ‘has left us perplexed’ seemingly for the reason that no question had arisen regarding the constitutional validity of Section 4 and Section 55 of the 42nd Constitution Amendment Act.[593] This is rather odd since the majority decision in Minerva Mills begins by stating: ‘The question for consideration in this group of petitions under Article 32 is whether Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation on the amending power.’ Justice Bhagwati who partly dissented from the views of the majority also stated that the constitutional validity of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 were under challenge.[594] However, it is not necessary to enter into this thicket, but it must be noted that Sanjeev Coke did not disagree with Minerva Mills in its understanding of Kesavananda Bharati.

399. More recently, in M. Nagaraj v. Union of India[595] it was held (rephrasing Justice Khanna in Indira Nehru Gandhi) that the basic structure doctrine is really a check on the amending power of Parliament. The basic structure of the Constitution consists of constitutional principles that are so fundamental that they limit the amending power of Parliament. It was concluded that the basic structure theory is based on the concept of constitutional identity (rephrasing Justice Bhagwati in Minerva Mills). It was then said:

“The basic structure jurisprudence is a preoccupation with constitutional identity. In Kesavananda Bharati v. State of Kerala it has been observed that “one cannot legally use the Constitution to destroy itself”. It is further observed “the personality of the Constitution must remain unchanged”. Therefore, this Court in Kesavananda Bharati while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty…... The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.”

400. The ‘controversy’ is now set at rest with the decision rendered in I.R. Coelho where alteration of the basic structure has been accepted as the test to determine the constitutional validity of an amendment to the Constitution. It was said:

“The decision in Kesavananda Bharati case was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to six Golak Nath case[596] was overruled. The majority opinion held that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution.”[597] And again, “In Kesavananda Bharati case the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution.”[598] The attack, therefore, is not on the basic structure of the Constitution but on the amending power of Parliament.

401. The learned Attorney-General placed reliance on the following passage from the judgment of Justice Krishna Iyer in Bhim Singhji v. Union of India[599] 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. That case dealt with the constitutional validity of the Urban Land (Ceiling and Regulation) Act, 1976 which was placed in the Ninth Schedule to the Constitution by the 40th Constitution Amendment Act, 1976 and therefore had the protection of Article 31-B and Article 31-C of the Constitution. In that context, it was held that the question of the basic structure of the Constitution does not arise if the constitutional validity of legislation (as distinguished from a constitutional amendment) is under challenge. It was then said: “The question of basic structure being breached cannot arise when we examine the vires of an ordinary legislation as distinguished from a constitutional amendment. Kesavananda Bharati cannot be the last refuge of the proprietariat when benign legislation takes away their “excess” for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equalisation processes are put into action. If all the Judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty.”[600]

402. This decision dealt with a statute placed in the Ninth Schedule of the Constitution and is, therefore, a class apart as far as the present discussion is concerned.

403. From this analysis, it must be concluded that if a constitutional amendment alters the basic structure of the Constitution, then it can and should be declared unconstitutional. What is of importance is the ‘width of power’ test propounded by Mr. Palkhivala in Kesavananda Bharati and adopted in M. Nagaraj and now rechristened in I.R. Coelho as the direct impact and effect test ‘which means the form of an amendment is not relevant, its consequence would be [the] determinative factor.’[601]

404. In the light of the above discussion the question, therefore, is this: How does the 99th Constitution Amendment Act alter the basic structure of the Constitution, if at all? There is no doubt or dispute that the independence of the judiciary is a basic structure of the 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. Therefore, has the introduction of the National Judicial Appointments Commission by the 99th Constitution Amendment Act so altered the appointment process as to impact on the independence of the judiciary thereby making the 99th Constitution Amendment Act unconstitutional? The learned Attorney-General answered this in the negative.

2 (b) Presumption of constitutionality

405. The learned Attorney-General submitted that there is a presumption in law that the 99th Constitution Amendment Act is constitutionally valid and that the petitioners have not been able to rebut that presumption.

406. In Charanjit Lal Chowdhuri v. Union of India[602] Justice Fazal Ali expressed the view that ‘the presumption is always in favour of the constitutionality of an enactment.’

407. Similarly, in Ram Krishna Dalmia v. Justice S.R. Tendolkar[603] it was held, on a consideration of the decisions of this Court by Chief Justice S.R. Das that ‘there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgressions of the constitutional principles.’

408. In Kesavananda Bharati it was held by Justice Hegde and Justice Mukherjea that:

“But the courts generally proceed on the presumption of constitutionality of all legislations. The presumption of the constitutional validity of a statute will also apply to constitutional amendments.”[604]

409. Finally, in R.K. Garg v. Union of India[605] it was held by Justice Bhagwati, speaking for the Court as follows:

“Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”[606]

410. It is not possible to disagree with the learned Attorney-General in this regard. A statute or a constitutional amendment must always be deemed to be constitutionally valid and it is for those challenging the validity to demonstrate a violation of the Constitution or an alteration of the basic structure of the Constitution, as the case may be. As far as the petitioners are concerned, it is for them to conclusively show that the 99th Constitution Amendment Act alters the basic structure of the Constitution in that it replaces a well thought-out and fully- discussed method of appointment of judges with another wherein the constitutional role giving significant value to the opinion of the Chief Justice of India is substantively diminished or perhaps eliminated and substituted by the NJAC. The question is not whether the alternative model is good or not good but whether it is constitutionally valid or not.

3 (c) Basis of judgment is removed

411. The third submission was that Article 124(2) of the Constitution has been amended by the 99th Constitution Amendment Act and, therefore, the basis of the judgment delivered by this Court in the Second Judges case has been completely taken away or that the Constitution has been amended with the result that that judgment cannot now be used to interpret Article 124(2) of the Constitution as it is today. In other words, the challenge to the 99th Constitution Amendment Act will have to be adjudicated independently and regardless of the law laid down in the Second Judges case or the Third Judges case.

412. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality[607] it was said by Chief Justice Hidayatullah that granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A Court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. It was said:

“Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation.”[608]

413. Similarly, in Indira Nehru Gandhi it was held by Chief Justice Ray as follows:

“The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of old law and thus make the judgment ineffective. A formal declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the appellate court has to give effect to the altered law and reverse the judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the Legislature rendering the basis of the judgment non est.”

414. In K. Sankaran Nair v. Devaki Amma Malathy Amma[609] it was observed as follows:

“It is now well settled that the legislature cannot overrule any judicial decision without removing the substratum or the foundation of that judgment by a retrospective amendment of the legal provision concerned.” [610] It was further stated, relying upon Shri Prithvi Cotton Mills Ltd. as follows:

“It is now well settled by a catena of decisions of this Court that unless the legislature by enacting a competent legislative provision retrospectively removes the substratum or foundation of any judgment of a competent court the said judgment would remain binding and operative and in the absence of such a legislative exercise by a competent legislature the attempt to upset the binding effect of such judgments rendered against the parties would remain an incompetent and forbidden exercise which could be dubbed as an abortive attempt to legislatively overrule binding decisions of courts.” [611]

415. Similarly, in Bhubaneshwar Singh v. Union of India[612] reliance was placed on Shri Prithvi Cotton Mills Ltd. and a host of other decisions rendered by this Court and a similar conclusion arrived at in the following words:

“From time to time controversy has arisen as to whether the effect of judicial pronouncements of the High Court or the Supreme Court can be wiped out by amending the legislation with retrospective effect. Many such Amending Acts are called Validating Acts, validating the action taken under the particular enactments by removing the defect in the statute retrospectively because of which the statute or the part of it had been declared ultra vires. Such exercise has been held by this Court as not to amount to encroachment on the judicial power of the courts. The exercise of rendering ineffective the judgments or orders of competent courts by changing the very basis by legislation is a well-known device of validating legislation. This Court has repeatedly pointed out that such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a court cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the court is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the court under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the court cannot be ignored.”[613]

416. In Re Cauvery Water Disputes Tribunal[614] it was pithily stated, on a review of several decisions of this Court that:

“The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”[615]

417. More recently, in State of Tamil Nadu this Court approved the following conclusion arrived at in Indian Aluminium Co. v. State of Kerala[616]:

“In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof.”[617]

418. Without commenting on the view canvassed by the learned Attorney- General that the 99th Constitution Amendment Act has actually removed the basis of the judgment delivered by this Court in the Second Judges case the constitutional validity of the said amendment will nevertheless need to be tested on that assumption, keeping in mind the above decisions.

4 (d) Wisdom of an amendment to the Constitution

419. The next submission of the learned Attorney-General was that the wisdom of Parliament in enacting the 99th Constitution Amendment Act cannot be disputed. Hence, this Court ought not to substitute its own views on the necessity or otherwise of the 99th Constitution Amendment Act over the law laid down in the Second Judges case.

420. In Lochner v. New York[618] Justice Oliver Wendell Holmes famously stated (in dissent) almost a century ago:

“This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.” In other words, one may or may not agree with the content or wisdom of a legislation, but that has nothing to do with the correctness or otherwise of the majority decision taken by a Legislature. This view has been followed in our country as well.

421. The Courts in our country do not question the wisdom or expediency of the Legislature enacting a statute, let alone a constitutional amendment.

422. In one of the earliest cases relating to the wisdom of Parliament in enacting a law, it was contended in A.K. Gopalan v. The State of Madras[619] that the Preventive Detention Act, 1950 was unconstitutional. Justice Das expressed the view that:

“The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitutional, for the Court is bound by its oath to uphold the Constitution. But outside the limitations imposed on the legislative powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature.”

423. The Payment of Bonus Act, 1965 and the scheme for payment of minimum bonus were under challenge in Jalan Trading Company (P) Ltd v. Mill Mazdoor Sabha Union.[620] Speaking for the Court, Justice J.C. Shah observed that the wisdom of the scheme selected by the Legislature may be open to debate but it would not be invalid merely because some fault can be found with the scheme. It was said:

“Whether the scheme for payment of minimum bonus is the best in the circumstances, or a more equitable method could have been devised so as to avoid in certain cases undue hardship is irrelevant to the enquiry in hand. If the classification is not patently arbitrary, the Court will not rule it discriminatory merely because it involves hardship or inequality of burden. With a view to secure a particular object a scheme may be selected by the Legislature, wisdom whereof may be open to debate; it may even be demonstrated that the scheme is not the best in the circumstances and the choice of the legislature may be shown to be erroneous, but unless the enactment fails to satisfy the dual test of intelligible classification and rationality of the relation with the object of the law, it will not be subject to judicial interference under Article 14. Invalidity of legislation is not established by merely finding faults with the scheme adopted by the Legislature to achieve the purpose it has in view.

424. In Kesavananda Bharati it was observed by Chief Justice Sikri that: ‘It is of course for Parliament to decide whether an amendment [to the Constitution] is necessary. The Courts will not be concerned with the wisdom of the amendment.’[621] The learned Chief Justice further observed: ‘If Parliament has power to pass the impugned amendment acts, there is no doubt that I have no right to question the wisdom of the policy of Parliament.’[622]

425. Similarly, Justice Shelat and Justice Grover held:

“It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution-makers or for the Parliament or the legislature.”[623]

426. Justice A.N. Ray expressed his view in the following words: ‘Courts are not concerned with the wisdom or policy of legislation. The Courts are equally not concerned with the wisdom and policy of amendments to the Constitution.’[624]

427. Justice Jaganmohan Reddy expressed the same sentiments when the learned judge said:

“The citizen whose rights are affected, no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have nothing to do with the wisdom or the policy of the Legislature.”[625]

428. On the question of the wisdom of a constitutional amendment which ostensibly improves an existing situation, Justice Khanna expressed the view that this was not justiciable. The Court cannot substitute its opinion for that of Parliament in this regard. It was held:

“Whether the amendment is in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the validity of an amendment the courts would not go into the question as to whether the amendment has in effect brought about an improvement. It is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would not be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only concerned with the legality of the amendment and this, in its turn, would depend upon the question as to whether the formalities prescribed in Article 368 have been complied with.”[626]

429. With reference to the Lochner dissent, Justice Khanna noted that the view was subsequently accepted by the US Supreme Court in Ferguson v. Skrupa[627] in the following words:

“In the face of our abandonment of the use of the ‘vague contours’ of the Due Process clause to nullify laws which a majority of the Court believed to be economically unwise, reliance on Adams v. Tanner[628] is as mistaken as would be adherence to Adkins v. Children’s Hospital[629] overruled by West Coast Hotel Co. v. Parrish[630] …..…. We refuse to sit as a ‘super legislature to weigh the wisdom of legislation’, and we emphatically refuse to go back to the time when courts used the Due Process clause ‘to strike down State laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought’.”[631]

430. Justice Khanna reiterated his views in Indira Nehru Gandhi wherein the learned judge held:

“Before dealing with the question as to whether the impugned amendment affects the basic structure of the Constitution, I may make it clear that this Court is not concerned with the wisdom behind or the propriety of the impugned constitutional amendment. These are matters essentially for those who are vested with the authority to make the constitutional amendment. All that this Court is concerned with is the constitutional validity of the impugned amendment.”[632]

431. Justice Chandrachud also expressed the same view, that is to say:

“The subject-matter of constitutional amendments is a question of high policy and courts are concerned with the interpretation of laws, not with the wisdom of the policy underlying them.”[633]

432. A similar view was expressed in Karnataka Bank Ltd. v. State of Andhra Pradesh[634] wherein it was specifically observed by this Court that:

“In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it.”[635]

433. In view of the judicial pronouncements, there is absolutely no difficulty in accepting this proposition canvassed by the learned Attorney- General. The constitutional validity of the 99th Constitution Amendment Act has to be tested on its own merit. The question of any Court substituting its opinion for that of the Legislature simply cannot and does not arise. A judge may have a view one way or the other on the collegium system of appointment of judges and on the manner of its implementation – but that opinion cannot colour the application and interpretation of the law or the reasoning that a judge is expected to adopt in coming to a conclusion whether the substitute introduced by the 99th Constitution Amendment Act is constitutionally valid or not. Similarly, a judge may have an opinion about the National Judicial Appointments Commission – but again that view cannot replace a judicial interpretation of the 99th Constitution Amendment Act or the NJAC Act.

434. The collegium system of appointment of judges has undoubtedly been the subject of criticism. In fact, Mr. Fali Nariman who led the submissions on behalf of the Advocates on Record Association was quite critical of the collegium system of appointments. Some of the learned counsel for the respondents went overboard in their criticism. But personal opinions do not matter. Lord Templeman of the House of Lords was of the view that the collegium system of appointments is best suited to ensure the independence of the judiciary – but there are other eminent persons who are critical of the Second Judges case.

435. In the final analysis, therefore, the Courts must defer to the wisdom of the Legislature and accept their views, as long as they are within the parameters of the law, nothing more and nothing less. The constitutional validity of the 99th Constitution Amendment Act cannot be tested on opinions, however strong they may be or however vividly expressed.

7 (e) Needs of the people

436. 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.

437. Apart from the presumption that an enactment is constitutionally valid, there is also a presumption that the Legislature understands and correctly appreciates the needs of the people. This was observed in Charanjit Lal Chowdhuri and reliance was placed on the following passage from Middleton v. Texas Power and Light Co.[636]:

“It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.”

438. Similarly, in Ram Krishna Dalmia the presumption that the Legislature understands and correctly appreciates the needs of the people was reiterated.

439. Finally in Mohd. Hanif Quareshi v. State of Bihar[637] this view was endorsed by Chief Justice S.R. Das speaking for this Court (though it may be mentioned that this decision was subsequently overruled on another issue) in the following words:

“The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.”

440. It was observed (on an issue relating to the constitutionality of the death penalty) in Makwanyane[638] as follows:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution…….

This Court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. Justice Powell's comment in his dissent in Furman v Georgia bears repetition:

...the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery - not the core - of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.[639] So too does the comment of Justice Jackson in West Virginia State Board of Education v Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.[640] To put it differently: ‘The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.’[641] Public opinion, manifested through Parliament or otherwise, really pales into insignificance over the law that is interpreted impartially and in a non-partisan manner.

441. It must be appreciated that the debate cannot be reduced to the acceptance of an unconstitutional but popular decision versus a constitutional but unpopular decision. All of us are bound by the Constitution and judges have to abide by the oath of office to uphold the Constitution and the laws, even if the decision is unpopular or unacceptable to Parliament. This is the essence of judicial review otherwise no law passed by Parliament (obviously having a popular mandate) could be struck down as unconstitutional.

9 (f) Passage of time

442. Finally, it was submitted by the learned Attorney-General that the passage of time over the last over 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.

443. There is no doubt that with the passage of time changes take place in society and in the development of the law. In fact, the only constant is change. In State of West Bengal v. Anwar Ali Sarkar[642] it was acknowledged by Justice Mehr Chand Mahajan that good faith and knowledge of existing conditions on the part of the Legislature has to be presumed. Appreciating this, it was later observed in Ram Krishna Dalmia that: “In order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”

444. In Kesavananda Bharati Justice Hegde and Justice Mukherjea observed that: ‘The society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come.’[643]

445. Justice Khanna expressed the view (and this was relied on by the learned Attorney-General) that the Constitution is also intended for the future and must contain ample provision for experiment and trial. This is what Justice Khanna said:

“It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means of ordering the life of a people. It had its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.”[644]

446. A little later on in the judgment, the learned judge cited Abrams v. United States[645] and quoting Justice Holmes said: “The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment.” If the experiment fails, there must be provision for making another.”[646]

447. Fortunately for the people of the country, the independence of the judiciary is not a ‘task of administration’ nor is the Constitution of India a failed experiment nor is there any need for ‘making provision for another’. If the basic structure of the Constitution is to be changed, through experimentation or otherwise, then its overthrow is necessary. It is not a simple document that can be experimented with or changed through a cut and paste method. Even though the independence of the judiciary is a basic structure of the Constitution and being a pillar of democracy it can be experimented with, but only if it is possible without altering the basic structure. The independence of the judiciary is a concept developed over centuries to benefit the people against arbitrary exercise of power. If during experimentation, the independence of the judiciary is lost, it is gone forever and cannot be regained by simply concluding that the loss of independence is a failed experiment. The independence of the judiciary is not physical but metaphysical. The independence of the judiciary is not like plasticine that it can be moulded any which way.

448. This is not to say that the Constitution must recognize only physical changes with the passage of time – certainly not. New thoughts and ideas are generated with the passage of time and a line of thinking that was acceptable a few decades ago may not be acceptable today and what is acceptable today may not be acceptable a decade hence. But basic concepts like democracy, secularism, Rule of Law, independence of the judiciary, all of which are constituents of the basic structure of our Constitution are immutable as concepts, though nuances may change. A failed experiment of these basic concepts would lead to disastrous consequences. It is not possible as an experiment to try out a monarchy or a dictatorship or to convert India into a religious State for about ten or fifteen years and see how the experiment works. Nor is it possible to suspend the Rule of Law or take away the independence of the judiciary for about ten or fifteen years and see how the experiment works. These concepts are far too precious for experimentation.

449. Yes, the Constitution has to be interpreted as a living organic document for years and years to come, but within accepted parameters. It was said by Chief Justice Dickson of the Canadian Supreme Court in The Queen v. Beauregard[647]:

“The Canadian Constitution is not locked forever in a 119-year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867--airplanes, nuclear energy, hydroelectric power -- it is surely not straining section 100 too much to say that the word ‘pensions’, admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of ‘pensions’.”[648]

450. It is this that Justice Khanna possibly had in mind when the learned judge spoke of the ‘unknown future’.

Challenge to a statute and the package deal

451. The learned Attorney-General also adverted to the legal bases for challenging a statute. This was necessary since he desired to segregate the challenge to the 99th Constitution Amendment Act and the NJAC Act. In principle, the segregation would be justified, but as far as this case is concerned, the learned Attorney-General had argued that the 99th Constitution Amendment Act and the NJAC Act were a ‘package deal’ and in this he is correct. Both were discussed and debated in both Houses of Parliament almost at the same time, both were sent to the President for assent at the same time and were in fact assented to at the same time and finally both were notified at the same time. The only difference was that while the 99th Constitution Amendment Act had to undergo the ratification process, the NJAC Act did not. It was therefore a ‘package deal’ presented to the country in which the 99th Constitution Amendment Act and the NJAC Act were so interlinked that one could not operate without reference to the other. In fact, Mr. Nariman submitted that the NJAC Act should also have undergone the ratification process, but he was unable to support his argument with any law, judicial precedent, convention or practice. This question is left open for greater discussion at an appropriate stage should the occasion arise.

452. Be that as it may, in the context of a challenge to a statute, it was submitted by the learned Attorney-General that the principles for such a challenge are quite different from a challenge to a constitutional amendment. He is right in this submission.

453. The accepted view is that a Parliamentary statute can be struck down only if it is beyond legislative competence or violates Art.13 or the fundamental rights. The basic structure doctrine is not available for striking down a statute. It was held in State of A.P. v. McDowell & Co[649] that:

“The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the [pic]legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground.”

454. This view was followed in Public Services Tribunal Bar Assn v. State of U.P.[650] in the following words:

“The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of A.P. v. McDowell & Co this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.”

455. Earlier, this Court had taken a much broader view of the issue of a challenge to a statute in Chhotabhai Jethabhai Patel v. Union of India.[651] It was held therein that apart from the question of legislative competence and violation of Article 13 of the Constitution, a statute could be challenged if its enactment was prohibited by a provision of the Constitution. It was held as follows:

“If by reason of Article 265 every tax has to be imposed by “law” it would appear to follow that it could only be imposed by a law which is valid by conformity to the criteria laid down in the relevant Articles of the Constitution. These are that the law should be (1) within the legislative competence of the legislature being covered by the legislative entries in Schedule VII of the Constitution; (2) the law should not be prohibited by any particular provision of the Constitution such as for example, Articles 276(2), 286 etc., and (3) the law or the relevant portion thereof should not be invalid under Article 13 for repugnancy to those freedom which are guaranteed by Part III of the Constitution which are relevant to the subject-matter of the law.”

456. This view was taken forward in Kihoto Hollohan v. Zachillhu[652] wherein it was held that the procedure for enacting a ‘law’ should be followed. Although it is not expressly stated, but it appears that if the procedure is not followed then the ‘law’ to that extent will have no effect. In this case, it was held that Paragraph 7 of the Tenth Schedule to the Constitution needed ratification in terms of clause (b) of the proviso to Article 368(2) of the Constitution. It was held:

“That having regard to the background and evolution of the principles underlying the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the[pic]Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-article (2) of Article 368 of the Constitution of India.”

457. Strictly speaking, therefore, an amendment to the Constitution can be challenged only if it alters the basic structure of the Constitution and a law can be challenged if: (1) It is beyond the competence of the Legislature; (2) It violates Article 13 of the Constitution; (3) It is enacted contrary to a prohibition in the Constitution; and (4) It is enacted without following the procedure laid down in the Constitution.

458. At the same time, it has been emphasized by this Court that the possibility of abuse of a provision of a statute is not a ground for striking it down. An abuse of power can always be checked through judicial review of the action complained of. In D.K. Trivedi & Sons v. State of Gujarat[653] it was said:

“Where a statute confers discretionary powers upon the executive or an administrative authority, the validity or constitutionality of such power cannot be judged on the assumption that the executive or such authority will act in an arbitrary manner in the exercise of the discretion conferred upon it. If the executive or the administrative authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the courts but the possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power or the power which has been conferred by it.”

459. Similarly, Justice B.P. Jeevan Reddy (speaking for Justice J.S. Verma, Justice S.C. Agrawal, Justice A.S. Anand, Justice B.N. Kirpal and himself) held in Mafatlal Industries Ltd. v. Union of India[654]: “It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty, this Court observed: “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India, “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief”. (Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.” (Internal citations omitted) Article 122 of the Constitution

460. Before dealing with the substantive issue of the challenge before us, it may be mentioned that Mr. Fali S. Nariman contended that Parliament did not have the competence to pass the NJAC Act until the 99th Constitution Amendment Act was brought into force or at least it had the assent of the President. It is not possible to accept this submission since the passage of the 99th Constitution Amendment Act and the NJAC Act was contemporaneous, if not more or less simultaneous. In view of Article 122(1) of the Constitution which provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure, it is not possible to delve into the proceedings in Parliament.

461. In Babulal Parate v. State of Bombay[655] this Court added, by way of a post-script, its view on Article 122(1) of the Constitution. It was observed that in a given hypothetical situation the question will not be the validity of proceedings in Parliament but the violation of a constitutional provision. It was said as follows:

“It is advisable, perhaps, to add a few more words about Art. 122(1) of the Constitution. Learned counsel for the appellant has posed before us the question as to what would be the effect of that Article if in any Bill completely unrelated to any of the matters referred to in Cls. (a) to (e) of Art. 3 an amendment was to be proposed and accepted changing (for example) the name of a State. We do not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Art. 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision.”

462. In Raja Ram Pal v. Lok Sabha[656] the question of the extent of judicial review of parliamentary matters came up for consideration. Speaking for Justices K.G. Balakrishnan, D.K. Jain and himself, it was held by Chief Justice Sabharwal, with reference to the CAD that procedural irregularities in Parliament cannot undo or vitiate what happens within its four walls, that is, internal parliamentary proceedings. However, proceedings that are substantively illegal or unconstitutional, as opposed to irregular are not protected from judicial scrutiny by Article 122(1) of the Constitution.[657]

463. Insofar as the NJAC Act is concerned, nothing has been shown by way of any substantive illegality in its passage or anything unconstitutional in its passage in the sense that any provision of the Constitution or any substantive rule regulating parliamentary activity has been violated. At best, it can be argued that procedurally there was a violation but our attention was drawn to the rules of procedure and the decision taken in accordance with the rules which indicate that there was no procedural violation in the introduction of the NJAC Act and its passage. Justice Khehar has elaborately dealt with this issue in substantial detail in his draft judgment and it is not necessary to repeat what has been said.

The amendments that are challenged - discussion

464. Though no one has a right to be appointed a judge either of the Supreme Court or a High Court, it does not mean that the President can decline to appoint a person as a judge without any rhyme or reason nor does it mean that the President can appoint any eligible person as a judge. Under the Government of India Act, 1919 and the Government of India Act, 1935 the Crown had the unfettered discretion to do both or either. The Constituent Assembly did not give this unfettered power to the President and, therefore, mandated consultation between the President and the Chief Justice of India for the appointment of a judge of the Supreme Court. There were reasons for this as mentioned above. Prior to the 99th Constitution Amendment Act, under Article 124(2) of the Constitution, the President had the discretion to consult some other judges of the Supreme Court or the High Courts, as the President thought necessary for the purpose. The same constitutional position prevailed (mutatis mutandis) so far as the appointment of a judge of a High Court under Article 217(1) of the Constitution was concerned. Article 124(2) of the Constitution had three basic ingredients: The power of the President to appoint a judge of the Supreme Court; a mandatory requirement of consultation with the Chief Justice of India; a discretionary consultation with other judges of the Supreme Court and the High Courts.

481. It is true that the Constitution cannot specify and incorporate each and every detail, particularly procedural details.[663] But the same time, the substantive requirements of the NJAC scheme must be apparent from the 99th Constitution Amendment Act read with the NJAC Act, particularly when it seeks to overthrow an existing method of appointment of judges that maintains the independence of the judiciary. Vital issues cannot be left to be sorted out at a later date through supplementary legislation or supplementary subordinate legislation, otherwise an unwholesome hiatus would be created, making matters worse.

482. The package deal must survive as whole or fall as a whole – there cannot be piecemeal existence.

483. Viewed in this light, the constitutional validity of Article 124(2) read with Article 124A of the Constitution as introduced by the 99th Constitution Amendment Act is suspect for several reasons.

562. This would give absolute power to the President to appoint a judge to the Supreme Court without consulting the Chief Justice of India (and also to appoint a judge to a High Court). The result of accepting his submission would be to create a tyrant, as James Madison put it in the Federalist Papers No. 47:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

563. This was put to the learned Solicitor-General and it was also put to him that if his submissions are correct, then it would be better for the Union of India to have the 99th Constitution Amendment Act struck down so that absolute power resides in the President making him/her an Imperium in Imperio as far as the appointment of judges is concerned. The learned Solicitor-General smiled but obviously had no answer to give. It must, therefore, be held that the constitutional provisions amended by the 99th Constitution Amendment Act spring back to life on the declaration that the 99th Constitution Amendment Act is unconstitutional. Conclusions

564. Very briefly, Dr. Ambedkar was of the view that the President should have some discretion but not unfettered discretion in the appointment of judges. The Second Judges case acknowledged that the President has the discretion to turn down a recommendation made by the Chief Justice of India, but only under certain circumstances. This was the fetter on the discretion of the President. However, the 99th Constitution Amendment Act and the NJAC Act have completely taken away the discretion of the President to turn down a recommendation for the appointment of a judge, reducing the constitutional significance of the President.

565. Dr. Ambedkar was of the view that the President should have the discretion to consult judges of the Supreme Court and the High Courts in respect of a recommendation for appointment by the Chief Justice of India. The President was presented, by Second Judges case and the Third Judges case, with the result of the consultation exercise carried out by the Chief Justice of India which the Chief Justice of India was mandated to do. It is over and above this that the President was entitled to consult other judges of the Supreme Court or the High Courts. However, the 99th Constitution Amendment Act and the NJAC Act have taken away this freedom of consultation from the President, who has no option but to take into account only the recommendation of the NJAC and not travel beyond that. Once again, the constitutional significance and importance of the President is considerably reduced, if not taken away.

566. Dr. Ambedkar was opposed to the concurrence of the Chief Justice of India (as an individual) in respect of every appointment of a judge. The Second Judges case made it mandatory for the Chief Justice of India to take the opinion of other judges and also left it open to the Chief Justice of India to consult persons other than judges in this regard. The opinion of the Chief Justice of India ceased to be an individual opinion (as per the ‘desire’ of Dr. Ambedkar) but became a collective or institutional opinion, there being a great deal of difference between the two. However, the 99th Constitution Amendment Act and the NJAC Act have considerably limited and curtailed the authority of the Chief Justice of India (both individually as well as institutionally) and the Chief Justice of India is now precluded from taking the opinion of other judges or of any person outside the NJAC. The Chief Justice of India has been reduced to an individual figure from an institutional head.

567. Dr. Ambedkar was not prepared to accept the opinion of the Chief Justice of India (as an 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 and the Third Judges case 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 and the Third Judges case and have taken away the constitutional authority of the Chief Justice of India and placed it on a platter for the NJAC to exploit.

568. Given our constitutional history, the established conventions, the views of various committees over the last seventy years and the views of scores of legal luminaries beginning with Mr. Motilal Setalvad, the throes through which the judiciary has gone through over several decades and the provisions of our Constitution, I hold that the Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional. The other provisions of the Constitution (Ninety-ninth Amendment) Act, 2014 cannot stand by themselves and are therefore also declared unconstitutional. Similarly, the National Judicial Appointments Commission Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute and it violates Article 14 of the Constitution and is declared unconstitutional. Even otherwise, the National Judicial Appointments Commission Act, 2014 cannot stand alone in the absence of the Constitution (Ninety-ninth Amendment) Act, 2014.

569. The result of this declaration is that the ‘collegium system’ postulated by the Second Judges case and the Third Judges case gets revived. However, the procedure for appointment of judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested learned counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed. Unfortunately, we received no response, or at best a lukewarm response. Under the circumstances, in my opinion, we need to have a ‘consequence hearing’ to assist us in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth judges case! I would, therefore, allow the petitions but list them for a ‘consequence hearing’ on an appropriate date.

Conclusion:-

22.4 I would conclude 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.

F. Validity of the NJAC Act

23. In view of my conclusion about the amendment being beyond the competence of the Parliament, I do not consider it necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the amendment is struck down. However, consistent with my earlier view that primacy of judiciary in appointment of judges cannot be compromised and on that ground not only Section 2 of the Amendment dispensing with the mandatory consultation with the judiciary as contemplated under the unamended provisions, Section 3 conferring power on the NJAC (under Article 124B) and providing for composition of the Commission under Article 124A giving a role to the Law Minister and two eminent persons equal to the CJI in recommending appointments as CJI, Judges of Supreme Court, Chief Justices and other Judges of the High Courts and recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article 124C giving power to the Parliament to regulate the procedure and to lay down the manner of selection was also unconstitutional, the impugned Act has to be struck down. It goes far beyond the procedural aspects. In Section 5 (2) ‘suitability criteria’ is left to be worked out by regulations. Second proviso to Section 5 (2) and Section 6 (6) give veto to two members of the Commission which is not contemplated by the Amendment. Section 5 (3) and Section 6 (8) provide for conditions for selection to be laid down by regulations which are not mere procedural matters. Section 6 authorises the recommendations for appointment as judges of the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6 (1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges. This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only one High Court may be senior most. Section 6 (2) provides for seeking nomination from Chief Justices of High Courts, but Section 6 (3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court and seek comments from Chief Justice after short listing the candidates by itself. Section 8 enables the Central Government to appoint officers and employees of the Commission and to lay down their conditions of service. The Secretary of the Government is the Convenor of the Commission. Section 13 requires all regulations to be approved by the Parliament. These provisions in the Act impinge upon the independence of judiciary. Even if the doctrine of basic structure is not applied in judging the validity of a parliamentary statute, independence of judiciary and rule of law are parts of Articles 14, 19 and 21 of the Constitution and absence of independence of judiciary affects the said Fundamental Rights. The NJAC Act is thus liable to be struck down.

G. Effect of Amendment being struck down

24. The contention that even if Amendment is held to be void, the pre- existing system cannot be restored has no logic. In exercise of power of judicial review, a provision can be declared void in which case the legal position as it stands without such void provision can be held to prevail. It is not a situation when position has not been made clear while deciding an issue. Power of this Court to declare the effect of its order cannot be doubted nor the decisions relied upon by the respondents show otherwise. I hold that on amendment being struck down, the pre-existing system stands revived.

H. Review of Working of the Existing System

25. Since the system existing prior to amendment will stand revived on the amendment being struck down and grievances have been expressed about its functioning, I am of the view that such grievances ought to be considered. It is made clear that grievances have not been expressed by the petitioners about the existence of the pre-existing system of appointment but about its functioning in practice. It has been argued that this Court can go into this aspect without re-visiting the earlier decisions of the larger Benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing.

Conclusion

26. The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived. The matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.