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Association and another … Petitioner(s)

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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]