COLLEGIUM - NJAC: A CONSTITUTIONAL

OVERLOOK
A Dissertation Report
Submitted by
GAURAV YADAV

In partial fulfillment for the award of degree

of

Masters of Law
In Constitutional Law

AT
AMITY LAW SCHOOL
AMITY UNIVERSITY RAJASTHAN
JAIPUR

Submitted By Supervised By
Gaurav Yadav Dr. Mukti Jaiswal
LL.M (CL) Assistant Professor
Batch – 2018-19 Amity Law School
Enroll No. – A21542618003
Amity Law School

MAY 2019
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 STUDENT’S DECLARATION
I, Gaurav Yadav, the author of this Seminar Report, solemnly declare that, the content
of the present ‘Report’ entitled, “COLLEGIUM - NJAC: A CONSTITUTIONAL
OVERLOOK” is original and the outcome of my independent research. To the best
of my knowledge and belief no one has so far been awarded the degree of LL.M in
Constitutional law, and an research Degree hereto before, on the same topic.

I have completed the report work under the supervision of my Guide, Dr. Mukti
Jaiswal, Assistant Prof. Amity Law School, Amity University Rajasthan.

Date : Gaurav Yadav

Place: Jaipur (Rajasthan) LL.M (CL)
Batch: 2018-19
A21542618003

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 GUIDE’S CERTIFICATE

This is to certify that the dissertation paper entitled “COLLEGIUM - NJAC: A

CONSTITUTIONAL OVERLOOK” has been prepared by Mr. Gaurav Yadav,
a student of Amity Law School, Amity University Rajasthan under my supervision
and guidance for the degree of LL.M in Constitutional law. The candidate has put
in an endance of more than 20 days with me.

1. To the best of my knowledge and according to his declaration belief the

thesis.
2. Embodies the work of the candidate himself.
3. Has duly been completed.
4. Fullfils the requirements of the ordinance relating to the LL.M degree of the
University.
5. Is up to the standard both in respect of content and language for being
referred to the examiner.

Place: Jaipur (Rajasthan) Dr. Mukti Jaiswal

Assistant Professor
Research Guide
Date: Amity Law School
Amity University Rajasthan, Jaipur

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 ACKNOWLEDGMENT

I am grateful to Dr. Mukti Jaisawal, Assistant Prof. Amity Law School, Amity
University Rajasthan, who supervised this dissertation paper and shared her
pearls of wisdom which improved the paper significantly. I would also like to
thank Rear Admiral Harendra Gupta (Retd.), Prof. & Dean, Amity Law School,
Amity University Rajasthan and other teachers of the Institute for rendering me
this opportunity to prepare this report.

I am also extremely thankful to one and all for the assistance and support I
received throughout my endeavor of working on this dissertation.

I thank my institute, Amity Law School, Amity University Rajasthan for

providing me with the opportunity and the support to work on this dissertation.

Lastly, I am immensely grateful to my parents, my seniors, batch mates and

juniors for their comments and ideas which were helpful in channelizing my
thoughts and ideas in the best possible manner.

Date :
Gaurav Yadav
Place: Jaipur (Rajasthan) LL.M (CL)
Batch: 2018-19
A21542618003

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 TABLE OF CONTENTS

Topic Page

List of Abbreviations. ..................................................................................................... 7

List of cases. ..................................................................................................................... 8
Statement of problems. ................................................................................................... 9
Hypothesis. .................................................................................................................... 10
Objectives of study. ....................................................................................................... 11
Research methodology. ................................................................................................ 12
Literature review ..................................................................................................... 13-16

Chapter 1: Introduction .......................................................................................... 17-58

 Historical background......................................................................... 21-26
 The 1st Period - Shankari Prasad’s Case to Golknath’s Judgement… 26-34
 The 2nd Period- Post Golaknath Scenario - Kesavanand Bharti’s
Case .......................................................................................................... 34-46
 The 3rd Period: Post Kesavanand Bharti Judgment to Election Case……46
 The 4th Period: Post Election Case to the Present Scenario ........... 47-54
 Effects of judgments: Supercession....................................................54-56
 The revolt of the Bombay Bar ................................................................ 56
 Impeachment of Justice V. Ramaswamy........................................... 56-58

Chapter 2: Separation of powers. .......................................................................... 59-74

 Harold laski and the collegiums system ............................................. 63-65
 Appointments of judges in different countries. ................................ 65-74

Chapter 3: Path to collegium system ..................................................................... 75-97

 Fate of appointments post S.P. Gupta case ....................................... 79-83

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  Second Judges’ Case ........................................................................... 83-90
 Third Judges’ Case .............................................................................. 90-92
 Developments post 2nd and 3rd Judges’ Case .................................. 93-95
 Defects in the collegium system .......................................................... 95-97

Chapter 4: Different views on judicial appointments. ....................................... 98-106

 Ram Jethmalani: two bill that threaten democracy… ................. 102-105
 Justice Kehar… ....................................................................................... 105
 Justice Joseph ......................................................................................... 105
 Justice Robert… ..................................................................................... 106

Chapter 5: NJAC: An attempt to scrap collegiums. ........................................ 107-115

 NJAC Bill ......................................................................................... 108-112
 4th Judges case .................................................................................. 112-115

Chapter 6: Judgment analysis ............................................................................ 116-139

 Views of judges on different issues. ............................................... 119-129
 Dissenting view of Justice Jasti Chelameswar .............................. 129-134
 Later Developments… .................................................................... 134-136
 Merits of collegium system ............................................................. 136-138
 Suggestion ......................................................................................... 138-139

Conclusion ............................................................................................................ 140-145

Bibliography. ....................................................................................................... 146-149

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 LIST OF ABBREVIATIONS

A
 Art - Article
 AIR - All India Reporter
C
 Co. – Company
D
 DPSP - Directive Principles of State Policy
E
 ed. - Edited
 etc. - Etcetera
F
 FRs - Fundamental Rights
H
 HC - High Court
J
 JAC - Judicial Appointment Commission
 J. - Justice
N
 NJAC - National Judicial Appointments Commission
S
 SC - Supreme Court
 SCR - Supreme Court Reporter
 SCAORA - Supreme Court Advocates-on-Record Association
V
 v. - Versus

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 CASES

List of Cases
 ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207.

 Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. AIR 1954 SC

119.

 Golak Nath v. State of Punjab, AIR 1967 SC 1643.

 In re Special Reference 1 of 1998 AIR 1999 SC 1.

 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225: AIR 1973 SC

146.

 Madhavrao Jivaji Rao Scindia v. Union of India [1971] 3 SCR 9.

 Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206.

 Purushothaman Nambudiri v. The State of Kerala, AIR 1962 SC 964.

 R C Cooper v. Union of India, [1970] 3 SCR

 S.P. Gupta v. Union of India AIR 1982 SC 149

 State of West Bengal v. Bela Banerjee AIR 1954 SC 170

 Subhash Sharma v. Union of India AIR 1991 SC 631

 Supreme Court Advocates-on Record Association v Union of India AIR

1994 SC 268.

 Supreme Court Advocates-on-record Association and another v. Union

of India Writ Petition (C) No. 14 of 2015.

 Union of India v. Sankal Chand Himatlal Sheth and others AIR 1977 SC
2328.

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 STATEMENT OF PROBLEMS

1. Is there is interference of the legislature in the appointment of judges in

NJAC as compared to the collegium system
2. Is appointment of Judges based on undisclosed criterion in largely
unknown cir- cumstances literally reflects an increasing democratic
deficit?
3. Is the enactment of NJAC act affects the independence of judiciary or not?

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 HYPOTHESIS

The interplay between the NJAC and judiciary will weaken the independence of
judici- ary. For the purpose of this dissertation, the hypothesis formulated by the
researcher is as, Prior to the NJAC, the appointment of judges was made by the
President in consulta- tion with the Chief Justice and other judges. Similarly, the
transfers were made by the President in consultation with the Chief Justice.
Supreme Court in 1993 introduced the system of Collegium, Now instead of the
Executive; primacy is given to the Chief Jus- tice of India and the Collegium of
Judges.

The Collegium system was considered to be unconstitutional as the Constitution

provid- ed for the appointment by the President in consultation with the judiciary
and not vice versa. In 2014 executive came up with the idea of NJAC, which
provides for appoint- ment of judges by a body of commission. In 2015 NJAC
along with Constitution amendment was challenged and finally the Supreme
Court set aside the two as violative of independence of judiciary.

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 OBJECTIVES OF THE STUDY

To verify the hypothesis mentioned below and for the purpose of this submission,
the objectives are as follows:-
 To study the definition of ‘Judicial Appointments’ under the Constitution
of In- dia.
 To do a comparative analysis of laws relating to judicial appointments in
various countries.
 To study the concept of ‘Separation of powers’ and its applicability in India.
 To elucidate the lacunae behind the Collegium system.
 Finally, to answer the real question which arises from the debate i.e., is
NJAC really cures the ailments that the Collegium system suffered from?

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 RESEARCH METHODOLOGY

No work of research can be constricted or limited to the data and inferences drawn
fro a single source or a method of research. For the purpose of a fair and concise
evaluation and appraisal of the objectives at hand, this project shall use a
combination of the following methods of research.

The researcher will employ a combination of doctrinal, analytical and

comparative method of research in this report. Data will be procured from
primary as well as second- ary sources. Primary sources include provisions from
various legal enactments. Second- ary sources include books, articles from
journals, Law Commission reports, news re- ports and internet articles.

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 LITERATURE REVIEW

1. Vol-3 issue-4 2017 of IJARIIE-ISSN online number, 23954396

IJARIIE is an international journal in which article is published regarding
“COLLEGIUM SYSTEM – THE UNVEILED DARKNESS”. The
central focus of this article is to draw attention towards the socio - legal
issues faced by the lawyers in being elevated as a judge by the present
Collegium System.

2. Ameya Vikram Mishra and S. Ananth Balaji in his article talked about
“THE NJAC ACT- IS IT A PERFECT REMEDY”. In this article
they talked about whether the NJAC Act is literally a harbinger of hope
in reforming the judicial appointment system.

3. Khagesh Gautam in his article talked about “CONSTITUTIONALITY

OF THE NATIONAL JUDICIAL APPOINTMENTS
COMMISSION: THE ORIGINALIST ARGUMENT”. In this article
he talked about the independ- ence of judiciary with all three judges
cases and he also concern about the ex- ecutive interference by
manipulating tenure and removal procedure.

4. Shiva Kant Jha on Nov. 14, 2015 writes suggestion for improving the
Collegi- um system written by High Courts. He tried to suggest by
following 5 points: (1) Transparency, (2) Eligibility. (3) Secretariat, (4)
Complaints, and (5) Miscella- neous.

5. V.N. Shukla’s Constitution of India 11th edition, Edited by Mahendra

P. Singh. Discuss the various provision of constitution with leading
cases. He be- lieves in the less said the better about prescription based on
inadequate evalua- tions. I tried to understand the amendment procedure
which is given in a quality manner.

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 6. PROFESSOR SANJAY JAIN1in his article on a blog on Indian
Constitution Law tries to apply the DOCTRINE OF REVIVAL to
deal with the uncon- stitutional constitutional amendments. He
argues that the Article 31C, which is argued in this case, provides only
with immunity and not special powers as such. It would be appropriate if
judiciary and legislature collaborate in the de- ployment of rule of
adjudication and rule of change respectively. It would lead to stability if
the Supreme Court takes a call on doctrine of revival and parlia- ment
clarifies its position on article 31C by making appropriate amendments.
Overuse of both, implication and the device of reasoning by analogy,
would ad- versely affect the stability of the legal system and also create
room for unwar- ranted speculations and conjectures. However, proper
amendments which can actually fix it have not been deeply discussed
which the Researchers feels should be a greater area to focus on.

2
7. TARIQUE ANWAR wrote an article about what the former CJI, VN
Khare said about the DEBATE OVER COLLEGIUM SYSTEM AND
THE NJAC. The author believes the collegium system is criticized
because of being "uncon- stitutional and anti-democratic" where judges
are appointed through "secret soundings and cronyism" Justice VN Khare
says there is nothing bad with the existing system but accepts that there is
scope for its improvement. "There is nothing bad with the Collegium
system. It is, in fact, superior to the NJAC in many ways. It Open Access
will also be unfair to say that it is not transparent. But yes, it can be
further improved by making it more transparent. One or two persons
nominated by the President can be included in the selection committee.”
He refused to accept the allegation of bias, favouritism and nepotism in
the ap- pointment of judges but accepted that there is corruption in

1
Professor Sanjay Jain, Debating the NJAC: The Philosophy of Revival, Indian Constitutional
Law and Philosophy, https://indconlawphil.wordpress.com/2015/07/27/debating-the-njac-the-
philosophy-of- revival-guest-post/ (last updated Jul 27, 2015).
2
Tarique Anwar, Collegium system not perfect, but superior to NJAC, says former CJI, F. India,
http://www.firstpost.com/india/collegium-system-not-perfect-superior-njac-says-former-cji-2242812.html
(last updated Oct 16 2015)
14 | P a g e
 judiciary. The re- searchers believe that the author has not mentioned in
what ways is the Collegi-um system superior to the NJAC and thus the
statement remains vague and a topic of discussion.

8. SHEETAL. S & ANURAG SINGH discusses THE COLLEGIUM

SYSTEM OF JUDICIAL APPOINTMENTS – AN OUTCOME OF
JUDICIAL MIS- INTERPRETATION where they talked about the
Collegium system with ref- erence to all three judges case.

9. SURYA PRAKASH PS wrote in the column of THE HINDU. What

merit is in the case of judges is a vexed question globally. In India, the
current debate has been focusing on integrity, independence and other
personal attributes. The au- thor believes that certain quantitative metrics
should act as the minimum thresh- old for candidates to become eligible
for the appointment of a judgeship in the collegium system. The metrics
could be as simple as ones that give an indication of what type of cases a
judge has handled, how many adjournments have been granted by him on
an average, the ratio of cases heard and disposed of, average duration of
cases handled from filing to disposal and number of judgements that
have been reversed in appeal. Such objective quantitative metrics being
included in the candidate selection process would balance accountability
with the inde- pendence of judiciary. Such objective quantitative metrics
are in use in United States and the United Kingdom. The researchers
supports the author’s view be- cause seniority cannot be the only criteria
for the elevation of the judges and these metrics will result in a more
transparent and trustworthy process.

10.
J.N. Pandey, ‘Constitutional Law of India’3, highlights the number of
amendments made in the Constitution of India in relation to Fundamental Rights,
Environment Protection, Public Interest Litigations and other provisions of the
Indian Constitution. His valuable work on the Constitutional Law of India shows
the important role played by the Judiciary in preservation of constitution- ality of
law made by the legislature.

3
Central Law Agency, Allahabad, 2005
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 11. M.P. Jain, ‘Indian Constitutional Law’4, throws light on the creative
and ac- tivist role played by the Judiciary in the interpretation of the
constitutional pro- visions. His book states that this judicial approach has
given a new content to many Fundamental Rights, especially to Article
21. The court has implied a bundle of rights for the people from Article
21, such as right to education, right to privacy, right to education, right to
free legal aid, right against inhuman treatment, right against illegal
detention, right to speedy trial, right to clean envi- ronment etc. Some of
these judicial pronouncements are very significant and even turning
points in Constitutional Law.

4
Wadhwa and Company Nagpur, New Delhi, 5th ed., 2006.

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COLLEGIUM – NJAC: A CONSTITUTIONAL
OVERLOOK
CHAPTER 1: INTRODUCTION

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 “Justice can become ‘fearless and free only if institutional immunity and
autonomy are guaranteed”.

Tussle between Judiciary and executive commenced when the Bihar Land
Reforms Act 5was challenged in court of law in Kameshwar Singh 6 as violative
of Article 147. Accord- ingly the court declared the Act, as unconstitutional for
being volative of Article 14. This proved to be a major setback for agrarian
reform. To neutralize this judgment Ex- ecutive passed The Constitution (First
Amendment) Bill, 1951 which added two new saving of laws provision (Art 31A
& 31B) & 9th Schedule with retrospective effect from 26th Jan, 19508.

The Founding Fathers of our Constitution gave importance to justice at the

highest ped- estal than the other principles in the Preamble of our Constitution.
The freedom of the Judiciary was taken from the USA. The USA did impart
considerable power to the Judi- ciary and made the Judiciary free of the biased
influence of the executive and the Exec- utive. So the USA set an example of the
freedom of Judiciary before the whole world. The Preamble clearly demonstrates
the precedence of social and economic justice over political justice because
people go to the Judiciary in quest of justice.

The Constitution lays down the structure and defines the limits and demarcates
the role and functions of every organ of the state, including the judiciary, and
establishes the norms for their inter-relationship, checks and balances.
Independence of the Judiciary is essential for upholding the rule of law. So
checks and balances with separation of pow- ers is one of the most characteristic
features of our Constitution.

In the Golak Nath9verdict by majority judgment, Parliament became completely

power- less to amendment or alters any of the Fundamental Rights; it was a shift

5
Bihar Land Reforms Act, 1950 (Act 30 of 1950).
6
Kameshwar Singh v. State of Bihar, AIR 1951 Pat. 91
7
Constitution of India, Art 14
8
Kanwal D.P. Singh, Land Laws 85 (Satyam Law International
9
Golak Nath v. State of Punjab, AIR 1967 SC 1643.

18 | P a g e
 from total freedom to total embargo and this was difficult for Parliament to
accept. The majority verdict in Golak Nath was widely criticised and almost all
Constitutional scholar took the view that the decision was wrong. Six years later
it was overruled unanimously by all the thirteen judges in the historic
Kesavananda Bharati case and Apex court ushered in the concept of ‘basic
structure.

Nevertheless, it was a major step towards limiting the uncontrolled power of

Parliament to amend the Constitution.

This verdict set the Supreme Court on a direct collision course with Parliament.
The battle continued for almost 15 years and culminated in the Judges' Transfer
case10.

This work endeavours to bring forward the larger debate on judicial

appointments span- ning over six decades, capturing critical development along
the way culminating in the recent Supreme Court judgment. Striking down the
Constitutional (99th amendment) Act, 2014 and National Judicial Appointment
Commission Act, 2014 this judgment has determined the continuing course of
judicial appointments in India, the judiciary’s place in the constitutional scheme
of things and its independence.

Set in the backdrop of National Judicial Appointment Commission Act, 2014,

the Con- stitutional (99th amendment) Act, 2014 and the subsequent plethora of
petitions filed challenging its constitutionality, this work explores the pros and
cons of both the Colle- gium and the Commission system of appointment of
judges.

The problem is that, choosing Judges based on undisclosed criterion in largely

unknown circumstances literally reflects an increasing democratic deficit.

10
Soli J Sorabji & Arvind P Datar, Nani Palkhivala: The Courtroom Genius 55 (LexisNexis
2012)
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HISTORICAL BACKGROUND OF APPOINTMENTS OF JUDGES

CONSTITUIONAL ASSEMBLY & ITS RESPECTIVE COMMITTES

Recommendatory Body Suggested composition

2nd Administrative Reforms Commission Judiciary : CJI; [For HC judges: Chief Jus-
tice of the relevant High Court of that
(2007)
state]

Executive : Vice-President (Chairperson),

PM, Law Minister, [For HC judges: In-
cludes CM of the state]

Legislature: Speaker of Lok Sabha, Lead-

ers of Opposition from both Houses of
Parliament.

Other: No representative
2nd Administrative Reforms Commission Judiciary: CJI; [For HC judges: Chief Jus-
tice of the relevant High Court of that
(2007)
state]

Executive: Vice-President (Chairman),

PM (or nominee), Law Minister, [For HC
judges: Includes CM of the state]

Legislature: Speaker of Lok Sabha, Leader

of Opposition from both Houses of Par-
liament.

Other: No representative.
NCRWC (2002) Judiciary :CJI (Chairman), two senior
most SC judges

Executive: Union Law Minister

Legislature: No representative

Other: one eminent person

Law Commission (1987) Judiciary : CJI (Chairman), three senior
most SC judges, immediate predecessor of
the CJI, three senior most CJs of HCs,
[For HC judges: Chief Justice of the rele-

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 vant High Court of that state]

Executive: Law Minister, Attorney Gen-

eral of India, [For HC judges: Includes
CM of the state]

Legislature: No representative

Other: One Law academic

Recommendations of Sapru Committee: In the year 1945, the Sapru

Committee (con- stituted to look into this aspect in view of the impending
independence of the country) recommended that “Justices of the Supreme Court
and the High Courts should be ap- pointed by the head of State in consultation
with the Chief Justice of Supreme Court, and, in the case of High Court Judges,
in consultation additionally with the High Court Chief Justice and the head of
the unit concerned.”

Recommendations of the High Powered Committee appointed by the

Constituent Assembly: The Constituent Assembly appointed a high-powered
‘ad hoc’ committee consisting of outstanding jurists of the country for
recommending the best method of selecting Judges for the Supreme Court. The
committee submitted a unanimous report opining that it would not be desirable
to leave the power of appointing Judges of the Supreme Court with the President
alone and recommended for a panel of eleven judges to be selected for
appointment.11

Recommendations of Federal Court: The draft Constitution was forwarded to

the Federal Court for its views. In March, 1948 a conference of Judges of the
Federal Court (including its Chief Justice) and Chief Justices of the High Court’s
was held to consider the proposals in the draft Constitution concerning the
judiciary. They stated that Judges should be appointed after the Consolation of
CJI and consultation should be treated as concurrence.

11
B. Shiva Rao: The Framing of India’s Constitution. Vol.2 at p. 590
21 | P a g e
Basis adopted in articles 124 and 217: Perhaps, the several proposals
mentioned above constitute the basis for the method of appointment devised by
Articles 124 and 217. At the same time, the Constituent Assembly chose to
employ the expression “consultation” in preference to the expression
“concurrence”.

Fourteenth Report of the Law Commission of India:12 In its Fourteenth

Report (1958), the First Law Commission of India, headed by very distinguished
jurist and first Attorney General of India, Shri M.C. Setalvad, and composed of
some very distin- guished personalities of the time. The report recommended
that every appointment to the High Court and the Supreme Court should be
made with the concurrence of the Chief Justice of India. In effect, this report
sought to revive the idea of ‘concurrence’, which was not accepted by the
Constituent Assembly. Of course, this recommendation was not implemented.
Administrative Reforms Committee also agreed and reiterated the same in the
next years.

PROVISIONS GIVEN IN THE CONSTITUTION OF INDIA

The judges of the Supreme Court and High Court in India are appointed by
President as per article 124(2) and 217 of the constitution. In such appointment,
the President is re- quired to hold consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as he may deem necessary
for the purpose. For example, Arti- cle 124 (2) says: Every Judge of the Supreme
Court shall be appointed by the President by warrant under his hand and seal
after consultation with such of the Judges of the Su- preme Court and of thHigh
Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years. Provided that in the
case of appointment of a Judge other than the Chief Justice, the Chief Justice of
India shall always be consulted.” In the above description, the buzzword is
“consulta- tion“. For the president to make appointment, consultation with these

12
Appointed in the year 1958

22 | P a g e
is judges is must. Initially, the Chief Justice of India used to initiate the proposal
for appointments, very often in consultation with his senior colleagues and
recommendation was considered by the President and, if agreed to, the
appointment was made. However, president, being the constitutional head, acts
upon the aid and advice of Un- ion Council of Ministers. Thus, practically, the
proposal of the Chief Justice was to be acceptable to the government.

There seemed to be a balance between the executive and the judiciary on the
matter of appointments of judges of the higher judiciary. But since the Chief
Justice of India used to initiate the proposals, the following questions were
raised: Is Chief Justice of India granted primacy over other judges by the
Constitution to initiate such proposals? The clear answer is no, because it was a
tradition and not constitutional prerogative. Why proposal for appointments in
the High Court cannot emanate from any other judges than Chief Justice?

DISCREPANCIES IN APPOINTMENT PRIOR TO THE COLLEGIUM

1. Emergency Period13
2. Senior Most Judges superseded by other Judges
3. Arbitrary appointments made by the executive as per their own whims
and fan- cies

ORIGINS OF THE CONFLICT

The conflict between the Judiciary on the one side, and the Executive and
Legislative wings of the government on the other, commenced almost
immediately after the adop- tion of the Constitution. Friction developed over
series of judgements which had to deal with the constitutional validity of land
reform legislations. Several of these legislations were struck down by the courts
for violating of the fundamental right to property guar- anteed under article 19
(1) (f) of the Constitution of India.

THE CONSTITUTIONAL 1ST AMENDMENT

13
Darkest period in the history of India. Courts acted as silent spectator

23 | P a g e
After independence, zamindari abolition and land reforms laws were passed as a
move towards more egalitarian society, but the Government efforts of social
engineering faced several problems, the land legislations were challenged in the
courts. The first case chal-

lenging the land law was Kameshwar Singh V State of Bihar14, in this case the
Bihar Land Reforms Act 1950 was challenged on the ground that the
classification of zamin- dars made for the purpose for giving compensation was
discriminatory and denied equal protection of laws guaranteed to the citizen
under Article 14 of the Constitution. The Patna High Court held this piece of
legislation as violative of Article 14 as it classified the zamindars for the purpose
of payments of compensation in a discriminatory manner. As a result of these
judicial pronouncements, the Government got apprehensive that the whole
agrarian reform programmes would be endangered. To ensure that agrarian re-
form legislation did not run into heavy weather, the legislature amended the
Constitu- tion in the year 1951 which inserted Ninth Schedule.

Article 31B was inserted by the First Constitutional (Amendment) Act 1951
which states that without prejudiced to the generality of the provisions contained
in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule
nor any of the provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or provisions is
inconsistent with, or takes away or abridges any of the rights conferred by, any
provisions of this part, and notwithstanding any judgment , decree or order of
any court or tribunal to the contrary, each of the said Acts and Regulations shall,
subject to the power of any competent legislature to repeal or amend it, continue
in force. Thus Article 31B of the Constitution of India ensured that any law in
the Ninth Schedule could not be challenged in courts and Government can
rationalize its programme of social engineering by reforming land and agrarian
laws. In other words, laws under Ninth Schedule are beyond the purview of
judicial re- view even though they violate fundamental rights enshrined under
part III of the Consti- tution. On the one hand considerable power was given to

14
AIR 1953 Pat 167, 1953 (1) BLJR 261

24 | P a g e
 legislature under Article 31B and on the other hand the power of judiciary was
curtailed, this is the starting point of tussle between legislature and judiciary.

The other feature of Article 31B is that it is retrospective in nature that is when a
statute is declared unconstitutional by a court and later it is included in the Ninth
Schedule, it is to be considered as having been in that Schedule from its
commencement. Thus it pro- vides blanket protection to all laws under the
Schedule.

In case of Jeejeebhoy V Asst. Collector15, Thane, the Supreme Court held that
Article 31B represents novel, innovative and drastic technique of amendment.
Legislative en- actments are incorporated into the Constitution and immunized
against all attacks on the grounds of breach of any of the Fundamental Rights

Pandit Nehru, India's first Prime Minister, had more or less visualised the
imminent conflict and had oppose the idea of listing the right to property as a
fundamental right in the Constitution. One of the objects of the Independence
movement was the abolition of Zamindari and other exploitative land tenure
systems. Nehru and many in the constitu- ent assembly felt that the corollary on
the right to property as a fundamental right would lead to extensive litigation
which could hold up economic reforms specially land re- forms16.

First Face-Off between the Parliament and the

Judiciary: Shankari Prasad Singh V.
Union of India

Shankari Prasad v. Union of India was the first case on the amenability of
constitution, in which the validity of the Constitution (First Amendment) Act,
1951curtailing the right to property guaranteed by Art. 31 were challenged. The
amendment was chal- lenged on the ground that it takes away or abridges the
rights conferred by Part III which is prohibited under Article 13(2) and hence
was void. Article 13(2) provides that any law passed by state contravening the
provisions under Part III i.e. Fundamental Rights would be considered void to

15
AIR 1965 SC 1069
16
Jawaharlal Nehru, A Biography by Sarepaali Gopal 215, Oxford University Press.

25 | P a g e
the extent of contravention. It was argued that State in Article 12 included
Parliament and the word Law in Article 13(2) therefore must in- clude
Constitutional Amendment. Hence it was contended that amendments are laws
passed by state as for the purpose of article 13(2). Supreme Court rejected the
above argument and held that power to amend the Constitution including the
fundamental rights is contained in Article 368 and though constitutional
amendment is a Law there is a clear distinction between legislative and
constituent power. It was asserted by Patan- jali Shastri J. that the power to
amend the Constitution is constituent power and not lim- ited by Article 13(2)
applicable only to legislative power.

The Supreme Court ruled that a constitutional amendment, not being law under
article 13(2), will be valid even if it abridges or takes any of the fundamental
rights. The peti- tioner challenged the amendment mainly on the following
grounds. First the power of amending the Constitution provided for under Art.
368 was conferred not on Parliament but on the two houses of Parliament as a
designated body and therefore the Provisional Parliament was not competent to
exercise that power under Art. 379.

Secondly, so far as the Constitution (Removal of Difficulties) order number 2

made by President, purports to adopt Art. 368 by omitting “either House” and
“in each House” is beyond the powers conferred on him by Art. 392, as “any
difficulties” sought to be re- moved by adoption under that Article must be
difficulties in the actual working of the Constitution during the transitional
period and whose removal is necessary for carrying on the Government.

Thirdly, in any case Art. 368 is a complete code in itself and does not provide for
any amendment being made in the Bill after it has been introduced in the House.
The Bill in the present case having been admittedly amended in several
particulars during its pas- sage through the House, the Amendment Act cannot
be said to have been passed in con- formity with the procedure prescribed in Art.
368.

26 | P a g e
Fourthly, the Amendment Act, in so far as it purports to take away or abridge the
rights conferred by Part III of the Constitution, falls within the prohibition of Art.
13(2). Lastly, as the newly inserted Art.31A and 31B seek to make changes in
Art.132 and 136 in Chapter 4 of Part V and Art. 226 in chapter 5 of Part VI, they
require
ratification un- der Cl. (b) of the provision to Art. 368 and not having been so
ratified they are void and unconstitutional.

On the first point, it was submitted that whenever the Constitution sought to
confer a power upon Parliament, it specifically mentioned “Parliament” as the
donee of the pow- er as in Arts. 2, 3, 33, 34 and numerous other Articles, but it
deliberately avoided the use of that expression in Art. 368. Realizing that the
Constitution, as the fundamental law of the country, should not be liable to
frequent changes according to the whim of party majorities, the framers placed
special difficulties in the way of amending the Con- stitution and it was a part of
that scheme to confer the power of amendment on a body other than the ordinary
Legislature as was done by Art.V of the American Constitution.

The Constitution provides for three classes of amendments of its provisions.

First, those can be affected by a bare majority such as that required for the
passing of any ordinary law. The amendments contemplated in Arts, 4, 169 and
240 fall within this class, and they are specifically excluded from the purview of
Art. 368. Secondly, those that can be affected by a special majority as laid down
in Art. 368. All constitutional amendments other than those referred to above
come within this category and must be effected by a majority of not less than
two thirds of the members of that house present and voting; and thirdly, those
that require in addition to the special majority above mentioned ratifi- cation by
resolutions passed by not less than one half of the state specified in Schedule A
& B of the First Schedule.

This class comprises amendments which seek to make any change in the
provisions re- ferred to in the proviso to Art. 368. Thus, the power of effecting
the first class of amendments is explicitly conferred on “Parliament” that is to
say, the two houses of Parliament and the President (Art. 79). But the fact that a
27 | P a g e
different majority in the same body is required in Art. 368 for affecting the
second and third categories of amendments cannot make the amending agency a
different body. There is no force, therefore, in the suggestion that Parliament
would have been referred to specifically if that body was in- tended to exercise
the power Having mentioned each House of Parliament and the President
separately and assigned to each it’s appropriate part in bringing about
constitutional changes, the makers of the Constitution presumably did think it
necessary to refer to the collective designation of the three unit. It is not correct
to say that Art. 368 is a “complete code” in respect of the procedure provided by
it. There are gaps in the procedure as to how and after what notice a Bill is to be
introduced, how it is to be passed by each house and how the President’s assent
is to be obtained. Having provided for the Constitution of a Parliament and
prescribed a certain procedure for the conduct of its ordinary legislative business
to be supplemented by rules made by each House under (Art. 118) for regulating
its procedure were intended, so far as may be, to be applicable.

To make a law which contravenes the Constitution, constitutionally valid is a

matter of constitutional amendments, and as such falls within the power
conferred under Art. 368 and not under Art. 246.

The Court in the Shankari Prasad made a mechanical appreciation of Art. 368. It
dis- closed no theory of any organic fundamental higher law. The unqualified
opening words, “An Amendment of this Constitution”, it held, made the given
amending proce- dure applicable to all parts of the Constitution including Part
III. For purposes of the Article, every provision of the Constitution carried equal
weight. The provisions of part III were not anymore fundamental than those of
Part IV. The provisions of each of these parts could be amended similarly Part
III was not out of the reach of the amending pro- cedure. No implied, or inherent
exception to the given amending procedure could be read in the course of
judicial interpretation of the Article. The adjectival description of the Part III
Rights by the word “Fundamental” did not confer any immunity from the
amending power of Parliament. Indeed, while acting in accordance with the
prescribed amending procedure Parliament did not act as a legislature
28 | P a g e
 simpliciter. In certain re- spects it was transformed into a temporary Constituent
Assembly, and could make any change it liked to make in the Constitution.
Subject to the proviso provisions, it could amend all provisions unilaterally.
Having amended the Constitution itself it became bound by it as a legislature
simpliciter as also other constituted authorities while acting under Art. 368, it did
not legislate, in the normal sense, it enacted organic higher law.

A constitutional amendment Act was not a legislative enactment, the definition

of ‘law’ given out in Art. 13(3) did not embrace it, and Article 13(2) was not
attracted to it, It was not a law which the court could judicially review, and
declare unconstitutional on the ground of inconsistency with the provision it
sought to amend. A declaration of unconstitutionality could not be made for it.
Indeed, the court should read the Constitution as it stood “amended in
accordance with the terms of the Bill.”

The Court thus disagreed with the view that the Fundamental Rights are
inviolable and beyond the reach of the process of constitutional amendment. The
Court, thus ruled that Art 13 refers to ‘legislative’ law; i.e. an ordinary law made
by legislature, but not to a constituent’ law, i.e. a law made to amend the
Constitution. The Courts thus held that Parliament could by following the
‘procedure’ laid down in Art. 368 amend any funda- mental right.

THE 4TH CONSTITUTIONAL AMENDMENT

In Bela Benerjee 17where the government had taken the land for rehabilitation of
refu- gees and in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co.
18
the Supreme Court struck down the action as violating the right to property.
Pandit Nehru pushed for the Constitution (4th amendment) Act, 1955 which
sought to amend article 31(2) by adding the word “no such laws shall be called
in question in any court of law on the ground that the compensation provided by
that law in not adequate.”19

17
State of West Bengal v. Bela Banerjee AIR 1954 SC 170.
18
AIR 1954 SC 119
19
The Constitution (4th amendment) Act, 1955.
29 | P a g e
 The parliament passed the 4th amendment to the constitution to curtail the impact
of the court verdict insisting on market value compensation and to make the
legislature the formal arbiter of quantum of compensation.20

THE 17TH CONSTITUTIONAL AMANDMENT

The conflict didn’t end with the 4th amendment. The Kerala Agrarian Relation
Act, 1961 was enacted to acquire ryotwari land for redistribution among
.
landless. The Act was struck down as discriminatory and it also held that
ryotwari land not being an ‘es- tate’ was not protected by Article 31-A (2) (a)
21
. The constitution 17th (Amendment)

Act, 1964 was enacted which added 44 Acts to the IX schedule making them
immune from any challenge for violation of Fundamental Rights.

The Struggle over Stateness in India: Parliamentary

Sovereignty ver- sus Judicial Supremacy Sajjan Singh V. State
of Rajasthan

The issue of the competence of the Parliament to amend the Constitution was
again raised in Sajjan Singh vs. The State of Rajasthan case in which the validity
of the Con- stitution’s (17th amendment) Act 1964 was challenged on the
ground that Parliament cannot encroach upon the Fundamental Rights of the
citizen even by way of constitu- tional amendments. This amendment too
adversely affected the right to property under Art. 19(f) by inserting certain other
land acquisition acts in the 9th schedule. Similar question as that in Shankari
Prasad’s case was raised in this case also. The majority led by Gajendragadkar
CJ. approved the majority judgement rendered in Shankari Prasad’s Case and
held that the words “amendment of the Constitution” means amendment of all
the provision of the Constitution i.e. Article 368 extends to all the parts of the
constitu- tion thereby fortifying the position of the Parliament.

20
S P Sathe, Constitutional Amendments 1950 -1988: Law & Politics (N M Tripathi) 1989.
21
Purushothaman Nambudiri v. The State of Kerala, AIR 1962 SC 964
30 | P a g e
 The Supreme Court gave its verdict in favour of the Parliament where it was
assumed that the Parliament possessed the all-embracing power to amend the
Constitution in- cluding the provisions dealing with fundamental Rights. So far
during this phase no rift could be identified between the two over the issue of
parliament’s competence of amending the Constitution. It enjoyed unchallenged
supremacy both in letter and spirit as both the organs worked in tandem.

Circumstances that encouraged the Judiciary to assume a political

role

The rise of a fluid and amorphous political situation encouraged the Supreme
Court to play a political role. The position of the Court vis-à-vis the Parliament
until 1967 was that the Parliament had the unfettered right to amend any part of
the constitution in ac- cordance with the procedure prescribed in Article 368.
This right was conceded by the Court in various decisions. Its veto on
progressive legislations could also be overridden by subsequent amendments.

In the Shankari Prasad v. Union of India in 1951 the Supreme Court

unanimously up- held that within the terms of the article 368 any provision of
the Constitution could be amended with the caveat that the article could not be
treated as a complete code in itself and it should be supplemented with the
procedural rules or practices of Parliament relat- ing to ordinary enactments.22

Later in the case of Sajjan Singh v. State of Rajasthan in 1965 the Court upheld
by a hair line majority of 3:2 the verdict pronounced in Shankari Prasad’s case,
but the mi- nority judgement reflected the somewhat diffuse and fluid political
situation which had been brewing in 1964.

It was the Golak Nath case which perhaps foretold the shape of things to come.

Arvind P. Dattar, The Basic Structure Doctrine –A 37 year journey in Sanjay S.Jain and Sathya
22

Narayan,Basic Structure Constitutionalism—Revisiting Kesavanand Bharti,

31 | P a g e
The Su- preme Court by a majority of 6 to 5 in the I.C. Golak Nath case v. State
of Punjab in 1967 decided that Parliament had henceforth no power to make
amendments in Part III of the Constitution so as to modify, take away or abridge
any of the Fundamental rights. The hitherto enjoyed right to amend the
Fundamental rights was henceforth denied to the Parliament. Besides that the
Supreme Court showed its allegiance to the American doctrine of prospective
overruling in laying down that all the previous amendments were void but this
could not be applicable since that would lead to enormous destabilis- ing effect
upon the arrangements made in pursuance of the amendments.

In this way the Court picked up the thread of minority judgement in the Sajjan
Singh case and came to the conclusion that Article 368 was not substantive but
procedural in nature and the power of the Parliament to amend the Constitution
is derived from “Arti- cles 245,246 and 248 of the Constitution and not from
Article 368 that alone deals with this procedure.” The ancillary conclusions
drawn from the case as summarised by Jus- tice K Subba Rao were as Follows:

1. Amendment is ‘law’ within the meaning of Article 13 of the Constitution

and therefore if it takes away or abridges the rights conferred by Part III
it is void.
2. The Constitution amendment acts 1951, 1955 and 1964 abridge
Fundamental Rights but they are valid on the basis of the earlier
decisions of the Court.
3. This government shall have prospective operation only and all the
previous amendments shall have continue to be valid and legitimate.
4. Parliament will have no power from the date of the decision any right to
amend any of the provisions of Part III so as to curtail or take away any
of the Funda- mental Rights.
5. The validity of the Punjab Security of Land Reforms Act of 1953 and the
My- sore Land Reforms Act of 1962 which came into existence with the
enforcement of the Constitution (Seventeenth Amendment) Act
challenged in these proceed- ings cannot be questioned on the ground
that they encroach Articles 13, 14 or 31 of the Constitution.

32 | P a g e
 The decision of the Supreme Court in 1967 in Golak Nath 23caused a commotion
in constitutional history. The Supreme Court struck down the Punjab Surety of
Land Re- forms Act, 1972 as violating Fundamental Rights. The majority 6:5
held that the Par- liament could not amend the Constitution to abridge the
Fundamental Rights. It was held that the power to amend conferred by Article
368 didn’t include power to take away FRs guaranteed by part III. According to
Subba Rao J., FRs were “given a tran- scendental position under our
Constitution and are kept beyond the reach of Parlia- ment”24
Case that further incapacitated the Parliament of its

powers: Golaknath V. State Of Punjab

The decision affirmed in the Golak Nath case by the Court diminished the
authority of the Parliament. Historically of course the Judiciary had struck down
much progressive legislation in the past. But every time the Parliament had the opportunity
to overcome this bottleneck through appropriate amendments. But the Golak Nath case
blocked the way to constitutional remedy and thwarted all the efforts of the Parliament to
bring forth any legislations of socio-economic nature.

This Supreme Court’s decision in the contentious Golak Nath case came under
scathing criticism, particularly by those who expected that it would lead to
‘fossilisation of the Constitution’25. It was not only contrary to the intention of
the founding fathers of the Constitution but it bears out to be incompatible with
the current and potential future compulsions of the social situation. The
Constitution endowed the Parliament with both constitutional and constituent
personalities. A relevant question that came to the fore was whether the word
‘law ‘used in Article 13 would include laws enacted by the Par- liament in
exercise of its Constituent power as derived from Article 368 or would refer to
laws made by the Parliament in exercise of its legislative power as enlisted in
Article 245, 246 and 248.

23
Golak Nath v. State of Punjab, AIR 1967 SC 1643
24
Ibid
25
O.Chinnappa Reddy ,The Court and the Constitution of India --Summits and Shallows,
OUP,Delhi,2008,p.48
33 | P a g e
This distinction between the two types of ‘law’ viz., legislative and constituent
power was not observed by the Supreme Court in the Golak Nath case26. It rather
decided that the word ‘law ‘under the Constitution should embrace both types of
law. Such a mecha- nistic interpretation of the word ‘law’ not only militated
against expressed intention of the framers of the Constitution but it also went
against the essence of an emerging poli- ty. One is reminded of the proceedings
of the Constituent Assembly that at no time the Founding Fathers believed that
the Fundamental rights were immutable and beyond the purview of amendment.
By embodying the Directive Principles it laid down the norma- tive structure of
the Constitution. They believed that in order to give effect to the Di- rective
principles it might be necessary to modify the Fundamental rights from time to
time. The Judiciary was in no way permitted to bind the future generations to an
un- yielding set of immutable rights.

Again the Supreme Court’s decision in the Golak Nath case enlivened a crucial
issue which had largely remained dormant for a decade. Through the Fourth
Constitutional

Amendment Act in 1955 the right to property was substantially curtailed to

accelerate the implementation of the Directive principles. But the judgement of
the Court in 1967 stirred a bitter controversy and created sharp fissures in India’s
political party system with the result that whatever unanimity was reached on
this issue was severely im-paired. It was hoped that the Judiciary would translate
social revolution into reality and uphold the equality that the Indians has aspired
for since colonial days. But ironically it belied the expectations of its makers and
its impact resulted in the sharp articulation of divisions in the Indian political
system.

With this decision the Court arrogated to itself the right to ride roughshod over
the polit- ical will of the people, a right which in all fairness belonged to the
Parliament. In other words, the implications of this decision meant that even if
fundamental rights were a fetter on social and economic change as desired by the

26
Sanjay S. Jain and and Sathya Narayan, op.cit, p.5

34 | P a g e
people, the representative Par- liament could not move in until the court reversed
its ruling. The assumption of a politi- cal role by the Court served to erode the
legitimacy of the judicial system. It was now looked upon as a structure of
status- quoist and reactionary forces. And since the Par- liament was denied of
its claim to constituent authority, a virtual paralysis of the consti- tutional
structure to induce change became all the more evident. It became apparent that
nothing less than a political rebellion could bring about socio-economic change.

Political Consequences of the Verdict

In the Golak Nath vs. The State of Punjab case of 1967, the Supreme Court
overturned its earlier decision regarding the absolute power of the Parliament to
amend the Consti- tution. The Supreme Court in its judgement stated that:
i. Parliament does not enjoy an unlimited power of amendment
ii. Parliament cannot amend Fundamental Rights so as to take away or
abridge these rights
iii. The amending power of Parliament is limited in view of the
provisions of Art. 13 of the Constitution

Thus the verdict in GolakNath case led to direct conflict of power between the
Parlia- ment and Judiciary.

Authority of the Parliament stultified

In the wake of the Golak Nath case, there occurred simultaneously, a rise in
political radicalism and political instability in various parts of the country. The
extremist sections of the Marxists took to violence particularly in West Bengal,
Andhra Pradesh and Kera- la. At the same time, the regular Parliamentary
processes became a cause of concern in the states. The immobilist multi-party
configuration and the politics of fragmentation frustrated all the hope for an
orderly change.

A new dimension was added to the problem of political particularism and

instability by the national spilt of the Congress. Sharp differences at the national
35 | P a g e
 level of the party were aggravating state level politics into state conflicts. This
situation continued for some time but it became uncontainable when there was
an open split between Prime Minister Indira Gandhi and the organizational
leaders on the issue of finding a successor to Zakir Hussain as President of the
Indian Republic.

To offset the challenge, the Prime Minister resorted to two well- calculated steps
viz. Bank Nationalisation and Abolition of Privy purses. The purpose of these
moves was to
1) counteract the challenge of the rival organizational leaders and
2) to mobilise the progressive forces in her favour both within and outside the
Congress that in turn would ensure her continuance in power.

She did garner support for the radical policies from the progressive forces in the
Parlia- ment however the victory was short-lived as the constitutionality of both
these enacted legislations was challenged in the Court and both were declared
void.

BANK NATIONALISATION AND PRIVY PURSE CASE

The supreme court on February 10, 1970 struck down the Bank Nationalisation
27
Act, 1969 as being violative of Article 14 and Article 19 (1) (f). The
compensation provid- ed for takeover the banks was found to be illusionary and
violative of Article 31. The lone dissent came from A N Ray J., who took the
view that the principle of compensa- tion could not be maid subject to judicial
review.28

In Privy Purse case 29Supreme Court struck down a government order seeking to
with- draw the recognition granted to the rulers of Princely States and deprive
them of Privy Purses.

27
R C Cooper v. Union of India,[1970] 3 SCR .
28
Ibid.
29
Madhavrao Jivaji Rao Scindia v. Union of India, [1971] 3 SCR 9.

36 | P a g e
 Prime Minister Mrs. Indira Gandhi that the government would abide by the
verdict, but assured that the Privy Purses would be abolished by “appropriate
Constitutional means”.30

In the R.C.Cooper v. The Union of India311 (Bank Nationalisation case) was

declared void on the following grounds:

i. Though the relevant legislation is within the ambit of the legislative

compe- tence of the parliament, it makes cumbersome and prejudiced
demands on the fourteen named banks. These banks are prevented
from carrying on banking business whereas the other banks Indian
and foreign were endorsed to carry on banking operations and even
new banks may be formed which may engage themselves in banking
business.
ii. The act restricts the named banks from carrying on business other
than bank- ing as defined in section 5(B) of the Banking Regulation
Act of 1949.
iii. The Act violates the guarantee of compensation under Article 31(2)

i. in that it provides for the giving of certain amounts determined

according to the prin- ciples which are not relevant in the
determination of compensation of the undertaking of the named banks
and by the method prescribed, the amount so declared cannot be regarded as
compensation.

With this decision of the Court the powers of the Parliament again received a
great set- back. But a more severe blow to the Parliamentary power came when
the Court made a decision in the Privy Purses Case in 1970. The Court struck
down the President’s order derecognising the rulers en masse. It was entirely
outside the article 366(2). The right to privy purses was properly covered by
meaning of the terms used in Article 19 and 31 of the Constitution and thus
entitled them to the protection given by these articles.

30
As quoted in Francine R Frankel, India’s Political Economy, 1947-2004, 2nd edition, Oxford
University Press, New Delhi, 2005.
31
1970 AIR 564, 1970 SCR (3) 530
37 | P a g e
Thus the Supreme Court’s decision in Golak Nath, Bank Nationalisation and the
Privy Purse Abolition cases had severely debilitated the Parliament from forging
any social action. Naturally the only means available to the Parliament in the
face of the Courts behaviour was ink constitutional amendments.

Soon after the Court’s decision in the Golak Nath case the socialist member
Nath Pai moved an unofficial bill in the Lok Sabha on April 7 of 1967 to restore
Parliament’s power.

Among other things the bill stated: “The issue raised is of ……importance to the
su- premacy of the parliament. The supremacy implies the right and the authority
of the Parliament to amend even the Fundamental rights. Just as Parliament can
extend those rights it can in special circumstances also modify them.

Although the bill was officially supported and was referred to the Joint Select
Commit- tee of parliament on the basis of the motion of the Law Minister, it
ultimately lapsed. Similarly the executive order signed by the President
derecognising the institution of ruler ship en masse was promulgated after a bill
in this regard was rejected by the Rajya Sabha by a single vote although the Lok
Sabha had passed it earlier. All these instances were symptomatic of the deep
political malaise that had crept in In- dia’s Political system. The series of
defections and splits in the Congress Party and the assumption of a political role
by the Supreme Court greatly marred the consensus on social issues towards
which Indian polit. All these had the effect of blurring the bounda- ries between
the Court and the Parliament

The 2nd Period- Post Golaknath Scenario – Kesavanand Bharti’s Case

The period between 1967 -1973 was one of great constitutional conflict, with
status of right to property and issues of the guardianship of the Constitution
dominating political and judicial debates .This period commenced with the
GolakNath case which ‘marks a watershed in the history of Supreme Court of

38 | P a g e
 India’s evolution from a positivist court to an activist court. 32
In this case the
concept of implied restriction on the power of the Parliament was recognized
and to some extent legislative supremacy was curtailed.33

Under the urge to prove its supremacy, Parliament came up with many
constitutional amendments. The 24th amendment brought in some changes in
Article 368 and 13 ex- pressly displacing the reasons on which Golknath’s
judgement was based. Basically it intended to eliminate the mischief of
Golaknath34. 25th amendment amended Article 31 and introduced Article 31 C
for giving higher sanctity to Directive Principles of State policy than
fundamental rights. 26th amendment abolished privy purses and thus ren- dered
Madhav Rao Scindia’s case ineffective. 29th amendment further added two
Kera- la acts to 9th schedule to grant them immunity from attack. These
amendments being over-ambitious were inevitably challenged in Kesavanand
case and other petition. C.J Sikri constituted a 13 judge bench to reconsider
Golaknath judgement and deal with the petitions against these amendments.

It is interesting to note here that even Sikri C.J. and Shelat J. who were part of
the ma- jority judgment in Golknath’s case did not express any opinion on the
Article 368 but sub silentio overruled Golknath’s case judgement. It needs to be
noted that it was during

this period that the phrase 'basic structure' 35was introduced for the first time by
M.K. Nambiar and other counsels while arguing for the petitioners in the
Golaknath case, but it was only in 1973 that the concept surfaced in the text of
the apex court.36

Amendatory conquests by the Parliament: Reasserts its Power

with the Twenty-Fourth Amendment

32
S.P.Sathe, Judicial Activism in India , Oxford University Press, New Delhi ,2002,p.67
33
Sanjay S. Jain and Sathya Narayan, op.cit., p.5
34
O. Chinnappa Reddy,op.cit.,p.52
35
AIR 1973 SC 1461 17
36

www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constituti
on.pdf last visited on 20th of march., 2018

39 | P a g e
Since the Judiciary had created so many bottlenecks in the way of realising the
social objectives, it became stifling for the Parliament to work effortlessly. In
order to over- come this immobility , the Government resorted to the method of
appealing to the elec- torate to seek their mandate. As a preliminary step, the
Lok Sabha was dissolved in De- cember 1970 and fresh polls were held in
March 1971. The outcome brought landslide victory for the Congress Party led
by Indira Gandhi where the party secured 350 seats in the Lok Sabha. The
general impression was that this victory was attributed more to Mrs. Gandhi than
to the party and with this another amendment came in the offing.

Soon after the elections the Government introduced the Twenty Fourth
Amendment Act 1971, which was an apparatus to re-establish Parliamentary
supremacy which it had lost to the Court in the Golak Nath case. The
amendments sought to overrule Golak Nath, and establish parliamentary
sovereignty, by conferring upon the parliament the power to amend any part of
the constitution including fundamental rights, and thereby excluding judicial
review. Terming the 24th amendment as a commitment to change the lives of
millions of people, Mrs. Indira Gandhi was successful in enacting the bill by 384
to 23 in the Lok Sabha and 177 to 3 in Rajya Sabha.

The Act declared that Article 368 of the Constitution:” shall be renumbered as
clause
thereof and (a) for the marginal heading shall be substituted, namely “Power of the
Parliament to amend the Constitution and Procedure thereof and (b) before clause
(2) so renumbered the following clause shell be inserted namely, “(1)

Notwithstanding anything in this Constitution Parliament may in exercise of its

Constituent Power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article”, and (c) in
clause (2) so renumbered for the words “ it shall be presented to the President for his
assent and upon such assent being given to the bill the words “ it shall be presented to
the President who shall give his as- sent to the Bill and thereupon shall be substituted
(d) after clause (2) so renumbered, the following clause shall be inserted, namely “(3)
Nothing in article 13 shall apply to any amendment made under this article.”

40 | P a g e
Shortly after the Constitution (Twenty –Fifth Amendment) Act 1971 was
adopted this act substituted the word ‘amount’ for the word ‘compensation’ to be
paid to the persons deprived of their private property. The act provided that in
article 31 of the Constitution:
a. For clause(2) the following clause shall be substituted namely,(2) no
property shall be compulsorily acquired or requisitioned save for a public
purpose and save by authority of a law which provides for acquisition or
requisitioning of the property for an amount which may be fixed by such
law or property for an amount which may be fixed by such principles and
given in such manner as may be specified in such law and no such law
can be called in question in any court on the ground that the amount so
fixed or determined is not adequate or that the whole or any part of such
amount is to be given otherwise than in cash.”
b. The act further added clause (c) to article 31 which gave a certain legal
footing to the Directive Principles of State Policy. the new clause said : “
Notwithstand- ing anything contained in Article 13 no law giving effect
to the policy of the State towards securing the principles specified in
clause(b) or clause(c) of article 39 shall be deemed to be void on the
ground that it is inconsistent with or takes away or abridges any of the
rights conferred by article 14, article 19 or article 31 and no law
containing a declaration that it is for giving effect to such policy shall be
called into question in any court on the ground that it does not give ef-
fect to such policy.

The Constitution Twenty-Sixth Amendment act 1971 was intended to terminate

the roy- al vestiges of India’s old princely States. The act provided:

a. “The Prince, chief or other person who at any time before such
commencement was recognised by the President as the successor of such
Ruler shall on and from such commencement, cease to be recognised as
such ruler or the successor of such ruler.
b. On and from the commencement of the Constitution (Twenty –Sixth
Amend- ment ) act 1971 privy purse is abolished and all rights, liabilities
41 | P a g e
 and obligations in respect of privy purse are extinguished and
accordingly the ruler, referred to in clause (a) or any other person shall
not be paid sum as privy purse.”

The Constitution Twenty –Ninth amendment act, 1972 placed some laws made
by the Kerala Government in regard to land reforms into the IX schedule of the
constitution.

Thus soon after the Congress returned to power with a resounding majority in
the 1971 Lok Sabha Elections, an array of amendments were made to the
Constitution to meet the judicial bottlenecks created to the power of the
Parliament.

But these amendatory conquests by the Parliament were extremely short-lived.

The Su- preme Court again barged into its territory by questioning the validity of
the Twen- tyfourth, Twenty-fifth and Twenty-ninth Constitution amendment
Acts in the case of Kesavanand Bharti v. The State of Kerala in 1973. In this
case the court by a majority of 7 to 6 judgement held the twenty-fourth and
twenty-fifth amendments as valid but declared the provision of clause added to
article 31 as void. The court in essence re- versed its earlier position adopted in
the Golak Nath case and accepted the stand taken by the Parliament.While
endorsing the stand that parliament had the authority to pass an amendment
relating to the part on fundamental rights, the Supreme Court at the same time
reiterated the view that amendments still fell under the purview of judicial
review.

This time they skilfully curbed the power of the Parliament by devising an
innovative caveat called “the Basic Structure” which was immutable. The aim of
this doctrine was to preserve the basic and quintessential features of the
Constitution in order to maintain its character as an effective instrument of our
sovereign democratic republic capable of securing justice, liberty, equality and
fraternity, as laid down in the Preamble of the Constitution.

42 | P a g e
 The Court went unimpeded in exercising its reviewing authority in striking down
the last clause in the first paragraph of the new article 31(c). This clause was
considered to be an infringement of the jurisdiction of the court. The Court
refused to be browbeaten to the position that no judicial review of any legislation
could be undertaken if the said legislation was intended to give effect to the
Directive Principles of State Policy. With this the audacious Supreme Court once
gain reasserted its legitimacy.

Kesavananda Bharti versus State of Kerala

This is a landmark case in the history of constitutional amendment in India. It

was the judicialization of mega-politics in India. It means “infusion of judicial
decision-making and of court like procedures into political arenas where they did
not previously re- side.” 37While the case in itself was very complex, it was still
of momentous signifi- cance in many respects. With this case a new concept
germinated in the field of consti- tutionalism called the Basic structure.
Moreover the decision given in this case became a constitutional benchmark for
38
the Supreme Court of Bangladesh which adopted it and for some High Courts
39
in Pakistan as well. The doctrine has been shot to limelight for a number of
reasons and the issues that come under its fold are vast. In various court ver-
dicts the doctrine has been invoked in cases on as diverse issues as election law,
secular- ism, property rights, freedom of expression, federalism and so forth.
With the exposi- tion of this doctrine the Court has fundamentally altered the
meaning of the Indian Con- stitution. This judgement became all the more
relevant as it reallocated power between various branches of the government.

To the minds of the classes and the masses this doctrine appears to have replaced
Par- liamentary sovereignty and separation of powers with Judicial Supremacy.
In the course of elaborating on the content of the basic structure of the

37
C. Neal Tate, Why the Expansion of Judicial Power?, in The Global Expansion of Judicial
Power (C. Neal Tate and Torbjorn Vallinder,( eds)., New York University Press, New York
1995, pp. 27-37
38
Anwar Hossain Chawdhary v. Bangladesh,41 DLR 1989 App Div 165
39
Darwesh Anbey v. Federation of Pakistan ,PLD 1980 Lah 206;Suleiman v. President ,Special
Military Cant.,NLR 1980
43 | P a g e
 constitution, the Supreme Court seems to have taken the view that, contrary to
the claims of the framers of the, the Directive Principles of State Policy are
equally basic to Indian constitutionalism as fun- damental rights.

The interpretation or the transformation of the doctrine has been critically

analysed. De- tractors see it as judicial usurpation of Parliamentary sovereignty
and an illegitimate attempt to place the directives at par with the fundamental
rights. However the support- ers of the basic structure doctrine believe that “ The
basic structure doctrine was devel- oped as a rare residuary power to be used by
the Court to control the excesses of a tran- sitory majority 40and as a legitimate
form of pressure on the State to accomplish policy goals to ameliorate the
conditions of vulnerable groups within the society by insisting that Directive
Principles be thought of as being par with fundamental rights.

All judges held that 24th amendment is valid as Article 368 confers power to
amend all or any of the provisions of constitution. Majority of judges held that
judgment in Go- lakNath case was wrong and that the power to amend was very
much there under Arti- cle 368. Seven judges took the view that basic structure
41
cannot be amended. The basic structure doctrine was defined and it was held
that the power to amend is channelized and limited.

Khanna J. along with other six judges agreed with this theory. Rest of the six
judges held that it is an absolute power in hands of the parliament. So Supreme
Court with a majority of 7:6 decided that some parts of the constitution which
gives it a meaning cannot be changed or amended.

However, only six out of the seven majority judges, with Khanna J. dissenting,
held that fundamental rights form the basic structure of the constitution and
hence are unamenda- ble. So, again Supreme Court with a majority of 7:6 held
that in the fundamental rights per se are amendable.

Ashok Desai, Constitutional Amendments and the “Basic Structure” Doctrine , in V. Iyer (ed.)
40

Democ- racy, Human Rights and the Rule of Law , Butterworths India, New Delhi ,2000,p.90
41
The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other
counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the
concept surfaced in the text of the apex court's verdict

44 | P a g e
 So as far as the issue of amendability of the constitution is concerned, it was held
that constitution is amendable to the extent it does not affects the basic structure
of the con- stitution. However this judgement was not specific as to what forms
the basic structure of the constitution. Judges gave their own examples of basic
structure and enumerated few of them but that list was not held to be exhaustive.
Kesavanand case thus testified for the first time that the Parliament is not
sovereign in Indian context and its power is not absolute but channelized and
controlled.

The 3rd Period: Post Kesavanand Bharti

Judgment to Election Case

Till now the judgements were in regards to the specific amendment which were
related to the property issues, even the challenge to 24th amendment was made
under the same context. However for the first time, an amendment was
challenged not on property issue or social welfare but with reference to the law
designed for free and fair elections. Not only that the amendment decided an
election dispute between two contesting parties but also decided a pending
appeal in Supreme Court42. Analysing the decision , Mr. Seervai said that “the
judgement in the Election case broke new ground which has important effects on
Kesavanand Bharati case itself .” He further said that “no one can now write on
the amending power without taking into effect of the Election case .”43

The Constitutional (39th amendment) Act, 1975 which inserted Article 329A
made an audacious attempt to silence the Judiciary. Through this amendment the
Prime Minis- ter’s election was retrospectively taken out the jurisdiction of

Courts and freed from ordinary election laws and it was also enacted that no
election would be declared void by any court. Parliament also passed the
Election Laws (Amendment Act ),1975 (Act 40 of 1975) by which electoral
offences for which Indira Gandhi was disqualified under the Representation of

42
Indira Nehru Gandhi v. Rajnarayan
43
H.M.Seervai, Constitutional Law of India,(4th Edn.) , paras 30.18,30.19
45 | P a g e
the People Act ,1951 by the Allahabad Court were nullified by chang- ing the
law44.

Moreover in Kesavanand case basic question was regarding amendability of

afunda- mental right while here it was amendability of essential feature of
representative gov- ernment namely free and fair election. Although the
amendment was upheld but the provision curbing Judiciary’s right to keep a
check on elections was struck down. The doctrine of basic structure was widened
and it was held that free and fair election being a part of basic structure cannot
be amended. Mrs. Gandhi's election was declared valid on the basis of the
amended election laws. The judges grudgingly accepted Parliament's power to
pass laws that have a retrospective effect. The Supreme Court rejecting the
argument of Mr. Shanti Bhushan ruled that the doctrine of basic structure is
restricted only to the amendment of the constitution not to other ordinary
legislation.

The 4th Period: Post Election Case to the Present Scenario

Unable to repudiate the doctrine of basic structure through the Judiciary,

the 42nd amendment was enacted. The amendment in every sense reflected the
anti-judiciary mood of Mrs. Gandhi. The amendment was introduced by Mrs.
Gandhi in both the Houses as a means of ‘throwing aside the constitution’,
which had in effect been the agi- tation before the declaration of the emergency.
The amendment ousted the jurisdiction of the courts from deciding upon
questions of election disputes. It also immunized con- stitutional amendments
from being questioned ‘in any court on any ground’ and parlia- ment’s power to
amend the constitution ‘by way of addition, variation or repeal’ was unlimited.

By amending Article 368, the 42nd Constitutional amendment made the

amending power virtually absolute. After the decision in Kesavanand case, there

44
T.R. Andhyarujina, The untold story of ‘Kesavanand Bharati ‘ and the Basic Structure
Doctrine sur- vived and attempt

46 | P a g e
 was no doubt at all that amendatory power of Parliament was limited and it was
not competent to alter the basic structure of the Constitution45. The Parliament,
however, in order to reassert its supremacy in the field of amending power,
passed the Constitution (42nd Amendment) Acts, 1976.

The 42nd Amendment Act made significant changes in the structure of Art. 368
by in- serting two new clauses viz., Clauses 4 and 5. This section was held to be
beyond the amending power of the Parliament and void since it sought to remove
all limitations on the power of Parliament to amend the Constitution and confer a
power on Parliament to amend the Constitution so as to damage or destroy its
basic or essential features or its basic structures. The true object of these clauses
was to remove the limitations imposed on Parliaments’ power to amend the
Constitution through the Kesavanand case. The newly introduced clause 4 in Art.
368 sought to deprive the courts of their power to call in question any
amendment of the constitution. The court stated in this connection that the
Constitution was founded on a nice balance of power among the three wings of
the state, namely, the Executive, the legislature and the Judiciary. It is the
function of the judges, nay their duty, to pronounce upon the validity of laws.
Depriving the court of the power of Judicial Review will mean making
fundamental rights “a mere adornment” as they will be rights without remedies.

By virtue of this amendment a ‘controlled’ Constitution became ‘uncontrolled’.

The newly added Cl.5 of Art. 368 demolished the very pillars on which the
Preamble rests by empowering the Parliament to exercise its constituent power
without any limitation. This clause even empowered Parliament to “repeal the
provisions of the Constitution”. Parliament can thus abrogate democracy and
substitute for it a totally antithetical form of government that can most
effectively be achieved.

The court pointed out that the goals set out in part IV of the Constitution must be
achieved without the abrogation of the means provided for by Part III. In this sense,

45
A.I.R. 1980 SC 1789
47 | P a g e
Parts III and IV together constitute the core of the Indian Constitution and combine
to form its conscience. “Anything that destroys the balance between the two parts
will ip- sofacto destroy an essential element of the basic structure of the
Constitution.”

The Amendment further abrogated Arts. 14 and 19 in regard to laws described in

Art. 31C. A bulk of modern legislation can easily be justified as having been
passed for ef- fectuating the policy of the state towards securing some principle
or the other laid down inPart IV. Such laws will cover an extensive gamut of the
relevant legislative activity. In respect of all such laws, Art. 14 and 19 would
stand wholly withdrawn.

Art. 14 and 19 confer rights which are elementary for the proper and effective
function- ing of a democracy. They are universal as becomes evident from the
Universal Declara- tion of Human Rights. If Art. 14 and 19 were put out of
operation in regard to bulk of legislation, Art. 32 would be drained of much of its
life blood. The nature and quality of the amendment were such that “it virtually
tears away the heart of basic fundamental freedoms.”

The State legislatures were given “an almost unfettered discretion to deprive the
people of their civil liberties”. Bhagwati, J., expressed a minority view. He
agreed with the ma- jority in holding amendments to Art. 368 as invalid and
unconstitutional on the ground of damaging the basic structure of the
Constitution. But amendment to Art. 31C was held valid by him subject to the
gloss put by him thereon. He argued that where protec- tion was claimed for a
statute under the amended Art. 31C, the court would first deter- mine whether
there was a “real and substantial connection” between the law and a Di- rective
Principle and that the predominant object of the law was to give effect to such
Directive Principles. If it is, then the court would consider which provisions of
the law were basically and essentially necessary for effectuating the Directive
Principle and on- ly those provision will be protected under Art. 31C, if the court
found that a particular provision was not essentially connected with the

48 | P a g e
 implementation of the Directive Principles or was of such a nature that, its
dominant objective was to achieve an unauthor- ized purpose, it would not be
protected under Art. 31C.

46
However Waman Rao’s case unanimously upheld Minerva mill’s judgement
that amendments to article 368 introducing clauses 4 and 5 are void and
invalidated 42 nd Amendment Act. It was further held in this case that all laws
placed in 9th Schedule af- ter Kesavanand Bharti judgement is also available for
judicial review. This was further widened by I.R. Coelho v. State of Tamil Nadu7
47
where the Supreme Court again applied the doctrine clearly elucidating the
importance of retaining the basic features of the Constitution framed by our
forefathers

It is agreed that the power of amendment is a very important power which is

given to the Parliament. Mahavir Tyagi during debates on draft constitution held
that a constitu- tion which was unalterable was practically a violence committed
on the future genera- tion48. It is thus necessary to have some fixed procedure to
make constitution adaptable from time to time. However, to determine the
degree to which constitution can be amended is an equally important task. The
courts have done a great service to the nation by declaring that there are certain
basic features of the constitution which cannot be amended. It has necessarily
pointed out to the parliament that constitution is not any party’s manifesto which
can be changed at their own will but is a national heritage which can be amended
only when a national consensus demands for it.

Row between the Judiciary and the Legislature post 2000

Even post 2000 constant tensions between the Judiciary and the Legislature
persist re- garding issues like:
i. Confrontation of Parliament and Judiciary in relation to reservation

46
(1980)3SCC 625 :AIR 1980 SC 1789
47
(2007) 2SCC
48
B. Shivarao, The Framing of Indian Constitution, 2nd Ed., Universal Law Publications, p. 832
49 | P a g e
 over the issue of creamy layers

ii. Opposition by the Supreme Court to the sealing operations of

commercial premises in unauthorised areas of Delhi
iii. The Supreme Courts interim stay on the 27 percent OBC quota in
institu- tions of higher Education49
iv. The Lok Sabha speakers refusal to expel some MP’s for taking bribes
for questions50
v. The decision of the Andhra Pradesh Governor to grant pardon to a
Congress leader was sought to be nullified by the Supreme Court51
vi. The judgement of the SC that in corruption issues there is no need to
take permission for a case filed against a corrupt Minister, MP and
bureaucrat
vii. Recommendation of President’s rule in Bihar by the Governor was
declared unconstitutional by the Supreme Court
viii. Bringing the decision of the Speakers of Assemblies under the
purview of judicial review52.
ix. Growing confrontation between the Judiciary and the Parliament in
regard to the Ninth schedule being brought under the Judicial review53

Thus it is obvious that the conflict between the Judiciary and the Parliament over
the issue of enhancement of their respective powers has grown with the passage
of time. On April 8, 2007 Prime Minister Manmohan Singh told the Chief
Ministers and the Chief justices of the High Courts in the Conference on
administration of justice on Fast track issue that” The dividing line between
judicial activism and judicial overreach is a thin one…. A takeover of the
functions of another organ may at times, become a case of over-reach” 54This

49
Rajinder Sachar, The OBC question, the Times of India, New Delhi, visited on Match 16, 2018 , p.14
50
J.S. Verma, The Constitution does not envisage Judicial review as the only way to correct
every wrong, The Indian Express, visited on march 7, 2018 , p.9
51
Subhash Kashyap, Tara Jaisi koi Baat Nhi, Dainik Bhaskar, February 1, 2006, p.4
52
See for details, Stambho ki Rassakashi, Dainik Bhaskar, December 9, 2006, p.6
53
H.K. Dua, 9th Schedule rout plugged, The Tribune, January 15, 2007,
p.10

54
Manmohan Singh, Line between activism and over-reach thin: PM to Bench, The Indian Express,

50 | P a g e
comment of Prime minister Manmohan Singh was viewed in the con- text of
introduction of various pieces of legislation nullified by the Supreme Court last
year. But the Chief Justice of India K.G. Balakrishnan, declared that the tension
between the Judiciary on the one hand and the Legislature and the Executive on
the other hand was “natural and to some extent desirable.”

Another arena where the Legislature and Judiciary have been involved in an
apparent tug of war is the matter relating to reservation for the weaker sections
of the society. There has been a history of unresolved conflicts leading to
amendments of the Constitu- tion. In India, reservation is an arena where judges
and politicians have been at logger- heads many times and the volcanic
undercurrents of this duet can be felt both in the Par- liament and the Judiciary.
Constitutional bench hearings on the validity of Constitution- al amendments
neutralising previous court hearings have been numerous and some are still
pending. This somersault of decisions on the part of the Judiciary is not a new
phe- nomenon as its resonance was felt much earlier in 1951 which inaugurated
the first amendment.

The confrontation between the two organs began with the first amendment
where one of the initial decisions of the Supreme Court on reservations and
quotas in education in education led to the insertion of Article 15(4) in 1951.
The Supreme Court had struck down the communal G.O. of the state of Madras
providing reservation for backward classes in the Champakam case. This created
a situation that made Parliament insert a fourth clause in article 15 providing for
special provisions for three advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled
tribes.

The subsequent pro-poor stance of the majority of the Supreme Court judges
subdued these confrontational postures and by the beginning of the 1990s there
started a major shift in the constitutional philosophy of the Judges. The Mandal
commission ignited a new wave of confrontations. Though by majority the nine
judge Bench upheld the con- stitutionality of reservations in the government
services even for the OBC’s it showed reluctance in reserving seats for the SC
51 | P a g e
and ST in some specialities and super-socialites. The Judiciary also stipulated a
50 percent ceiling on reservation and called for the ex- clusion of the creamy
layer of backward classes. It declared unconstitutional reservation in promotions
even for SC's and ST's though this was not a point in issue. However in the
judicial matrix a gesture of judicial mercy was shown which provided for
reserva- tion in promotions to continue for a period of five years.

This was a precursor to a new era of confrontations. At the expiry of the five
years, the Parliament in its constituent capacity stepped in with the 77th
amendment which ap- pended Clause 4A to Article 16 of the Constitution
providing for reservation in promo- tions in favour of SC/STs. In another sequel
to judico-legislative clash, the Parliament introduced the 81st amendment by
introducing Clause 4B in article 16 as a counter- offensive to the judicial
verdict of 50 percent ceiling on reservation. The amendment read as “ unfilled
vacancies of a year…. shall be considered as a separate class of va- cancies to be
filled up in any succeeding year or years and shall not be considered to- gether
with the year in which they are being filled
up for determining the ceiling of fifty percent. Observed as a “Trojan Horse
“brought in by the National democratic Alliance government many
constitutional experts hold that it made the 50 percent ceiling a constitutional
concept for the first time.

THE CONSTITUTIONAL 24TH & 25TH AMENDMENTS

After this, government passed constitutional amendments to reverse the

decisions in Go- lak Nath, Bank Nationalisation & Privy Purse cases. The
constitution (24th Amend- ment) Act, 1971 empowered the parliament to amend
any provision of the constitution. It also removed judicial review of any
amendment which took away the FRs.
The constitution (25thAmendment) Act, 1971 substituted the word “amount” for
the word “compensation” in Article 31(2) thereby diluting the order of the court
to give “adequate compensation”. Further a new Article 31(C) was inserted

52 | P a g e
 those whom Ray superseded, Chandrachud J. emphasis- es, had held against the
government in key cases, including Kesavananda Bharti. The influential minister
Mohan Kumara mangalam claimed that the government had a duty to consider
the philosophy and outlook of a judge in deciding whether he or she ought to
lead the Supreme Court. This is reasonable so far as it goes-but the convention of

KESAVANANDA BHARATI CASE: THE FINAL SETTLEMENT

The 24th and 25th amendments challenged in the Supreme Court and were heard
by largest bench of 13 Judges till date. On 24th April, 1973 the judgment
came55.The ma- jority upheld the validity of the 24th amendment affirming the
Parliament's right to amend any provision of the Constitution including the FRs.
The ratio of Golak Nath stood reserved. The court also held that the first part of
the 25th amendment, substitut- ing the word "amount" for "compensation" in
case of compulsory acquisition is valid. And that any challenge based on the
inadequacy of the amount could not be made. The majority also upheld that any
law giving effect to the DPSP specified in article 39 (b) &
(c) couldn't be deemed to be void on the ground that it abridged the rights
provided in articles 14, 19 & 31. The provision relating to absence of judicial
review was struck down. The Court ruled with majority of 7:6 that "the power to
amend doesn't include the power to alter the basic structure or framework of the
Constitution so as to change its identity".56The Court held that the power to
amend the Constitution under Article 368 didn’t permit to amend the “basic
structure of the Constitution”.57

EFFECT OF JUDGMENTS: SUPERCESSION

The government soon struck back. On 25 April 1973, a day after the
Kesavananda Bhar- ti decision was proclaimed, the union government
announced that the next chief justice of India would be AN Ray, then the fourth

55
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : AIR 1973 SC 1461.
56
Ibid
57
This is much debated whether the Kesavananda Bharati in effect pronounced on the doctrine of Basic
Structure.
T.R. Andhyarujina, The Kesavananda Bharati Case: the Untold Story of Struggle for Supremacy by Supreme Court
and Parliament, Universal Law Publication, 2012
53 | P a g e
most senior judge on the court. Until then, constitutional convention had been to
appoint the most senior judge of the Supreme Court as chief justice. Each of those
whom Ray superseded, Chandrachud J. emphasis- es, had held against the government
in key cases, including Kesavananda Bharti. The influential minister Mohan Kumara
mangalam claimed that the government had a duty to consider the philosophy and
outlook of a judge in deciding whether he or she ought to lead the Supreme Court.
This is reasonable so far as it goes-but the convention of el- evation by seniority was
in place because it ensured judicial independence; a politically motivated departure
from the convention would encourage judges hoping to become chief justice to align
their views with those of the government.

Any doubts over the government’s intent were soon dispelled by the Emergency,
which Gandhi declared in 1975. In pursuance of a new law of preventive
detention, the Maintenance of Internal Security Act, some 673 people-most of
them political oppo- nents of the government were arbitrarily arrested. Some of
the detention orders were challenged, and several High Courts ruled in favour of
the detainees. The government’s response was twofold: it transferred judges who
opposed the orders to other High Court without their consent, and it appealed the
High Courts’ decision to the Supreme Court.

In what is now almost universally viewed as a pusillanimous decision, the

Supreme Court held, through a four-to-one majority in the Habeas Corpus
case58, that it was powerless in the wake of the Emergency to question executive
actions of preventive de- tention.(Chandrachud’s grandfather, YV Chandrachud,
was one of the judges who ruled in favour of the government.) ustice HR
Khanna, who wrote a historic dissenting opin- ion, would pay for his bravery.
When Ray retired as chief justice, the Gandhi-led gov- ernment appointed MH
Beg as his successor, even though Khanna J. was next in the line of seniority59.

MINERVA MILLS AND 42ND AMENDMENT

In Minerva Mills Ltd60. Challenge was made to the constitutional validity of
certain provisions of the Silk Textile Undertakings (Nationalization) Act, 1974.
58
ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
59
Santosh Pau l (ed.), Appointing our Judges: Forging Independence and Accountability, LexisNexis, 2016.

60
Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206.

54 | P a g e
The Supreme Court in July, 1980 held clause 4 & 5, inserted in Article 368 by
42nd Amendment, un- constitutional and void because clause 4 deprived courts of
their power to call in ques- tion any amendment of the Constitution and clause 5
had removed all limitations on the amending power of the Parliament. Thus the
attempt by the 42nd amendment to overrule Kesavananda Bharati case was set at
naught.

THE REVOLT OF THE BOMBAY BAR

In 1990 something singularly grave to the Judiciary emanated from the Bar of
the High Court of Bombay. The Original Side and the Appellate Side Bar
Associations of the High Court of Bombay resolved expressing their lack of
confidence in four named Judges. The Chief Justice of the Bombay High Court
refused to assign any judicial work to the four named judges. Earlier, one other
judge in whom the Bar had lost confidence on receiving an order of transfer
from the Bombay High Court to another High Court, resigned from his office. It
was the biggest challenge the Judiciary faced because there were attempts to
clone what happened 1n Mumbai in other High Courts.61

IMPEACHMENT OF JUSTICE V. RAMASWAMI

At the heels of this controversy, another issue erupted which further dented the
credibility of the appointments made by the executive. Audit reports implicated
Mr. Justice V. Ramaswami, a sitting judge of Supreme Court for having used
public funds for personal gains when he presided as Chief Justice of Punjab and
Haryana High Court. This was followed by a resolution passed by the Bar
Association of the Supreme Court calling for his impeachment. On a petition
made by 108 members of the Lok Sabha, the Speaker appointed a committee of
three judges under the Judges Enquiry Act, 1968. The Committee found him
guilty on 11 out of 14 charges. The enquiry finally resulted in an impeachment
motion. The impeachment motion failed. In a House of 401 members, there were
only 196 votes for the impeachment and 205 abstentions; it fell short of two-

61
H.M. Seervai, Constitutional Law of India, 4th Edition, (1991) Vol. 1.

55 | P a g e
 thirds majority of those present and voting required for carrying the motion
through. This ag- gravated the perception that the Executive was not serious
about taking on proved mis- demeanours. The Executive’s role in the
impeachment process created a trust deficit.

The events of the Bombay Bar and the subsequent failed impeachment of Justice
V. Ramaswami led to discontentment of Executive driven appointments. The
failure to im- peach was perceived as the Executive trying to help the judge in
question. At the heart of the problem was the intense desire to secure the
independence of the Judiciary and induct the best of talent.

To conclude first chapter in the foregoing pages it becomes clear that whenever
the Leg- islature or the Executive failed to perform its constitutional duties, it
was the Judiciary which came forward to safeguard the provisions of the
Constitution. The doctrine of parliamentary supremacy as understood in England
does not prevail in India except to the extent provided by the Constitution. The
plea of the parliamentary supremacy is based on fallacious and misconceived
assumption that Parliament as representative of the people can enact any law.

The people of India in exercise of their sovereign power have distributed powers
amongst all the three organs of government, the Legislature, the Executive and
the Judi- ciary. The special bench of the Calcutta High Court in Sunil Kumar
Bose v. The Chief Secretary of Government of W.B62. has fittingly pointed out
that “The people of India have given us (judges) the power of interpreting the
Constitution of India and of decid- ing whether any piece of legislation is or is
not consistent with the provisions laid down in the Constitution of India”.

The utmost need of the age is not the supremacy of any one organ over the other
but mutual understanding and confidence between all the governmental organs.
The Judici- ary does not declare a law unconstitutional enthusiastically or
willingly. This has been explained by the Supreme Court in the following
manner: “If then the courts in the country face up to such important and none too

62
AIR 1950 Calcutta 274.
56 | P a g e
easy task, it is not out of any desire to tilt at legislative authority in a crusader’s
spirit, but in discharge of a duty plainly laid upon then by the Constitution.”

The Legislature should also follow the same path. It is submitted however, that
unfortunately the judicial pronouncements, have not been always hailed in good
spirit. The important pronouncements have been nullified by hasty legislation or
ordinance. The condition of tension and claim of supremacy by one organ over
the other organs of the government is not appreciable. It is thus necessary that
the Parliament should show due regard to the Judiciary and the Judiciary on the
other hand should widen its outlook. Each branch should operate within
democratic boundaries and should develop better awareness of social goals and
objectives and respect for human rights and freedoms.

The assumption that legislation is remedy of all evils is ill founded. The need of
the time is the earnest implementation of laws and not domineering will of the
parliamen- tary supremacy over Judiciary. The Constitution should be well
balanced and in no case the balance should not be imperilled.

The seven judges bench of the Supreme Court in U.P. Controversy case49 has
aptly re- ferred to the necessity of amicable relations among all organs of the
government: “These two august bodies (the Judiciary and the Legislature) as
well as the executive which is another important constituent of a democratic
state, must function not in a spir- it of hostility, but rationally harmoniously and
in a spirit of understanding”.

In a nutshell the controversy between the Supreme Court and Parliament is a

futile bat- tle. They should rather be complementary to each other. The purpose
of both the institu- tions should be to uphold democracy equality, liberty and
fraternity.

57 | P a g e
SEPARATION OF POWERS

CHAPTER - 2

58 | P a g e
 According to Montesquie the consequences of lack of separation of powers are
grave. He argued that:

“When the legislative and executive powers are united in the same person, or in
the same body of magistrates, there can be no liberty, because apprehensions
may arise, lest the same monarch or senate should enact tyrannical laws, to
execute them in a ty- rannical manner. Again, there is no liberty if the judicial
power be not separated from the legislative and executive. Where it joined with
the legislative, the life and liberty of the subject would be exposed to arbitrary
control: for the judge would then be the legis- lator. Where it joined with the
executive power, the judge might behave with violence and oppression.

Miserable indeed would be the case, were the same man or the same body,
whether of the nobles or of the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions and that of judging the
crimes or differences of individ- uals.”63

The basic theory of a tripartite separation of powers-between the legislature,

executive and judiciary-was first put forward in the eighteenth century by the
French philosopher Montesquieu. It asserts that the autonomy of the courts is the
greatest protection against the tyranny of the majority, and against those who
would treat rights as fungible rather than unassailable. In keeping with this
View, the framers of India’s Constitution saw the judiciary as the primary
guardian of the sort of equality-political and civil, as well as social-that they
hoped Independence would usher in. To this end, the Constituent As- sembly
vested in the Supreme Court and the various High Courts the power of judicial
review, which allowed the judiciary to strike down laws enacted by Parliament.

“Indian Constitution does not recognise strict separation of powers. The

constitutional principle of separation of powers will only be violated if an
essential function of one branch is taken over by another branch, leading to a
removal of checks and balances.”64

63
Retrived from http://www.utumishi.go.tz/utuweek/SOP.pdf visited on 15 march 2018
64
State of U.P. v. Jeet S. Bisht

59 | P a g e
 History tells us there is no way to create a perfect separation of powers, or a
perfect an- tidote to majoritarianism. In the United States, the twentieth-century
legal scholar Alex- ander Bickel asked how unelected judicial members could
exercise almost unimpeded authority in overruling decisions arrived at by a
democratically elected government. Checks and balances are meant to come in
through a selection process whereby the president nominates judges who are
then subject to confirmation by a legislative body.

In practice, the government in power often elevates judges closely aligned to the
ideology of the ruling party. (How justices rule once on the bench is another
question.) More- over, judges tend to interpret the law in ways that are broadly
sympathetic to the worldviews of the legislature and executive; as the American
political scientist Robert Dahl wrote in 1957, it is “somewhat unrealistic to
suppose that a Court whose members are recruited in the fashion of Supreme
Court Justices would long hold to norms of Right or Justice substantially at odds
with the rest of the political elite.”

The basic concept of Separation of Powers would mean:

 The same persons should not form part of more than one of the three organs
of the government
 One organ should not controller or interrupt with the working of another; and
that one organ of the government should not exercise function of another.

The innate provisions of freedom, democratic governance and law are more
secure when the three organs of the system functions independent of one
another. Such a sys- tem is essential for the functioning of democracy. The
doctrine of Separation of Powers is said to have originated from Aristotle but as
is well known it was given great promi- nence by John Locke and
Montesquieu. Writing in his ‘Second Treatise on Civil Government’ 65in 1690,
John Locke of England stated that “...it may be too great a temptation to human
frailty, apt to grasp at power, for the same persons who have the power of
making laws, to have also in their hands the power to execute them, whereby

65
John Locke, Two Treaties of Government (Awnsham Churchill, England, 1690).
60 | P a g e
 they may exempt themselves from obedience to the laws they make, and suit the
law, both in its making and execution, to their own private advantage...”.
The French jurist, Montesquieu, had this to say – “...when the Legislative and
Executive power are united in the same parson, or in the same body of
magistrates, there can be no liberty. Again there is no liberty, if the judicial
power were not separated from the legislative & executive. Where it joined with
the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. Were it joined the executive
however; the judge might behave with violence and oppression...”66

POSITION IN DIFFERENT COUNTRIES

When we speak of a separation of the three great departments of US Government

and maintain that the separation is indispensable to publicly liberty, we are to
understand this maxim in a limited sense. It is not meant to affirm that they must
be kept wholly and entirely separate and have no common link or connection or
dependence, the one - upon the other, in the slightest degree. The true meaning is
that the whole power of one of those departments should not be exercised by the
same hands which possess the whole power of either of the others departments;
and that such exercise of the whole would subvert the principles of the
Constitution...67

These sentiments are fully reflected in the Constitution of the individual States
as well as in the federal Constitution of America. So far as the federal
Constitution of the Unit- ed States is concerned, though it does not expressly
create a separation of governmental powers, yet from the three Articles stating
that the legislative power vests in the con- gress, the judicial power in the
Supreme Court and the executive power in the President, the rule has been
deduced that the power vested in each branch of the government can- not vested
in any other branch, nor can one branch interfere with the power possessed by

66
Montesquieu, The Spirit of the Laws (France, 1750).

67
Joseph Story, Commentaries on the Constitution of United States (Hillard, Gray & Co., 1833).
61 | P a g e
any other branch.

INDIAN POSITION

Article 50 of The Constitution of India 1949 provides: “The State shall take
steps to separate the judiciary from the executive in the public services of the
State”. Though Article 50

provides for separation of Judiciary from Executive but our 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. Unlike the American
and Australian Constitution the Indian Constitu- tion does not expressly vests the
different sets of powers in the different organs of the State. Under Article 53
executive power is indeed vested in the President but there is no similar vesting
provision regarding the legislative and the judicial powers. Our Constitu- tion,
though Federal in its structure, is modelled on the British Parliamentary system,
the essential feature of which is the responsibility of the executive to the
Legislature. The President, as the head of the Executive, is to act on the advice of
Council of Minis- ters, and this Council of Ministers, like the British cabinet is a
‘hyphen which joins a buckle which fastens the legislative part of the state to the
executive part’.

HAROLD LASKI AND THE COLLEGIUM SYSTEM

ON APPOINTMENTS THROUGH ELECTIONS BY LEGISLATURE

Laski analysed election of judges by the legislature which he felt though less
open to objection but again an undesirable form of appointment. This he felt ‘the
average mem- bers of the legislature have no special qualifications for judging,
and he is therefore likely to be swayed by political considerations irrelevant to

62 | P a g e
 theproblem’68.

ON EXECUTIVE DRIVEN APPOINTMENTS

Laski was critique of the process of nomination in England by the Lord

Chancellor. He found that the Lord Halsbury used his power of nomination to
elevate members of his own party.
This system made ‘a place on the bench is a fair reward for party service; and
there have been notorious cases in which a Lord Chancellor has not been strong
enough to resist the pressure’69.

ON SELECTION BY A COMMITTEE OF JUDGES

The most persuasive articulation in favour collegiums system of appointments

with the judiciary having a decisive say is contained in the ‘Grammar’70.

‘We are therefore thrown back upon nomination as the best available method
of choice. It is, then, necessary to surround the power of nomination with
safeguards. I don’t myself think that a legislative committee is a satisfactory
channel for that end. In America, it has always proved as a means of
reserving appointments to the party in office; and, even if the English judicial
tradition is different, more satisfactory ways lie open to us. It would be
possible, for instance, to make appointments on the recommendation of the
Minister of the justice, with the consent of the standing committee of the
judges, which would recommend all sides of their work’.

POLITICIAN JUDGES: LASKI’S GLARING OMISSION

Laski avoided a very serious question. Can a politician be a judge? Chief Justice
Earl Warren, three times governor of California was directly elevated as the
Chief Justice became a champion liberal who transformed the contours of the
American Constitution. Justice Krishna Iyer, former Home Minister is the
world’s first elected communist gov-

68
Harold Laski, ‘The Grammar of Politics’ George and Unwin, 1967, London.
69
Santosh Pau l (ed.), Appointing our Judges: Forging Independence and Accountability, LexisNexis, 2016.
70
Supra note 30.
63 | P a g e
ernment in Kerala, left an indelible footprint on the Supreme Court. Sandra O
Connor,
U.S Supreme Court judge was formerly an Arizona Senate House leader71.

APPOINTMENT OF JUDGES IN DIFFERENT

COUNTRIES IN UNITED STATES

The appointment and confirmation of Justices to the Supreme Court of the

United States involves several steps set forth by the United States Constitution,
which have been fur- ther refined and developed by decades of tradition.
Candidates are nominated by the President of the United States and must face a
series of hearings in which both the nom- inee and other witnesses make
statements and answer questions before the Senate Judi- ciary Committee, which
can vote to send the nomination to the full United States Sen- ate. Confirmation
by the Senate allows the President to formally appoint the candidate to the court.

Time and again during the arguments allusions were made to the system of
appoint- ments in the United States. Subsequent of the judgment PC
Chidambaram stated, "it is nobody's case that the US, Australia and Canada do
not have independent Judiciaries". The American Constitution gives immense
power to the President to appoint judges. In fact, judges are appointed by the
president in the hope they will further his political phi- losophies in the judicial
arena. In every politically charge litigation the verdict of the judges is predicted
on the basis of political affiliations. This is not exactly a healthy sit- uation in the
Indian context.

A particularly revealing passage by William Rehnquist, Chief Justice of the

United State Supreme Court would baffle those who follow the constitution here
in India. Wil- liam Rehnquist expounded the role of the judge to mean virtually
to further agenda of the President who appointed the judge.

'Thus a President who sets out to pack the court does nothing more than
seek to ap- point people to the court who are sympathetic to his political or

71
Ibid

64 | P a g e
 philosophical prin- ciples... Yet the institution has been construed in such a

way that, because of the mortality tables, if nothing else, the public will, in
the person of the President of the united states- the one official who is
elected by the entire nation - have something to say about the membership
of the court, and thereby indirectly shut its decisions.

Sure we would not want it any other way... When a vacancy occurs on the
court, it is entirely appropriate that vacancy be filled by the senate, whose
members are re- sponsible to the constituencies. Thus, public opinion have
some say in who shall become judges of the Supreme Court'72.

THE JUDICIAL APPOINTMENT COMMISSION IN UK

The judges in the higher judiciary in U.K. are appointed on the basis of
recommenda- tions made by the independent Judicial Appointments Commission
(JAC). The most successful of the JACs was enacted in the Constitution Reforms
Act 2005 in the United Kingdome. As a surprise, Judicial Appointments
Commission of UK has no political representation. As Prime Minister Gordon
Brown puts it, “The Government should con- sider relinquishing its residual role
in the appointment of Judges”. 73The Constitution Reforms Act 2005 provides
that “the Lord Chancellor, other minister of the crown and all with responsibility
for matters relating to the judiciary must uphold the continued independence of
judiciary”. The Act further provides that “the Lord Chancellor must have
regarded to (a) the need to defend that independence (b) the need for the
judiciary to have the support necessary to enable to exercise their functions”.

The function of the JAC is closely monitored by the Parliament’s Constitution

Commit- tee. The committee also rejected parliamentarians sitting on selection
panels for judicial appointments. Even with regard to enhancing the power of the
Lord Chancellor to issue directions to the JAC was rejected by the committee as
it was opined, that “such a pow- er could lead to political interference and

72
Santosh Pau l (ed.), Appointing our Judges: Forging Independence and Accountability 232-233, LexisNexis,
2016.
73
The Governance of Britain: Judicial Appointments presented to Parliament, 2007.
65 | P a g e
undermines the independence of the appoint- ment process”.74

Regional representation in appointments is ensured. The Judicial Commission

has a rep- resentative and participative character. The procedures are transparent.
There is no pre-dominance either of the judiciary or of the executive. There is no
‘Collegium’ syn- drome, nor is there any political highhandedness. The Lord
Chancellor constitutes the Selection Commission by addressing a letter to the
President of the Court who chairs the Commission. The President should also
nominate a senior judge in the U.K., who should not be, however, a Justice of
the Supreme Court.

UNITED STATES OF AMERICA:75

The United States is governed by a federal system, the federal government and
the gov- ernments of the fifty states of the United States make and enforce the
law. Similarly in the United States there exist two distinct forms of judicial
systems; i.e. the Federal Courts and State Courts. At State level there is a
variance in the hierarchy of the courts. A typical judicial hierarchy in the states
would include the Justice of Peace also known as Magistrate or Squire at the
bottom, at the next level would be the Municipal Court, next would be the
County Court and at the topmost ladder would be the State Supreme Court. At
the federal level there are two types of courts, constitutional courts and legis-
lative courts. The constitutional courts are established under Article III of the
United States constitution whereas the legislative courts are established under
Article I of the constitution.

The legislative courts are part of the constitutional appellate structure; the
purpose of these courts is to help in the administration of particular statues. The
legislative courts are basically non-judicial or quasi-judicial bodies. The role of
constitutional courts is one of pure judicial nature. The most important
distinction between the two forms of federal courts is that the judges of the

74
Constitution Committee, UK, 25th Report 7th March, 2012

75
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appointments- india-lawessays.php

66 | P a g e
 constitutional courts hold their offices till death or vacate the office by
resignation or by impeachment by the House of Representatives and conviction
by the Senate. The constitutional courts comprise of the three main courts, the
Supreme Court,

United States Court of Appeals and the United States District Courts. The
appointments to the Federal Courts are pure political appointments. Under the
constitution Articles II the President has the power to choose the candidates for
the judicial offices; the choice of the President to the judicial office is subject to
confirmation of the choice by the Senate. The Senate has the power to veto the
choice made by the President. Usually the Presi- dents choose Judges who tend
to have an ideology similar to that of his own. At the state level appointment of
Judges varies with state to state. In some other states the judges are appointed by
the process of election while in some states the legislatures elect them. In some
of the states the governor has full discretion in the appointment of judges.

Judicial Appointment: Merit Plan or the Missouri Plan:76

The Merit Plan or the Missouri Plan as it is popularly known used in the judicial
ap- pointments in the US state of Missouri is a fine balance between the
executive process and the elective process of appointment of judges. Nonpartisan
nominating boards or commissions take the initial step in the nomination
process. These boards usually con- sist of the Chief Justice of the state Supreme
Court as Chairman, three lawyers appoint- ed by the state bar representing the
states appellate districts and three laymen appointed by the Governor. The
members of the board are unsalaried and serve for staggered six- year terms of
office, the commission members nominate three candidates for every va- cant
judgeship to the governor, who is obliged to choose one of them to serve for one
year. After this one year period the appointed judge faces the electorate, without
any political affiliations. The question on the ballot is whether the judge should
be retained or not. If he is elected he can continue in office. The judge then
serves a definite term of twelve years.

76
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67 | P a g e
Judicial Appointments: California Plan77:
Under the California plan of judicial appointments the governor has complete
discretion to choose his nominee for the judicial office. But the choice of the
governor is subject to the approval to a three member committee comprising of the
Chief Justice of the State Supreme Court, the Presiding Officer and the Attorney
General of the State. The Governor nominates one individual per vacancy. The
nomination is then deliberated by the three member committee. The nomination
once approved by the committee, the nomi- nee is declared to be appointed for a
provisional period of one year. At the year’s end the appointee stands for popular
election on a nonpartisan, non-contested ballot after winning it he is allowed to
work for a full term usually of 12 years.

Judicial Appointments: Federal Courts:

Under the Article II of the American constitution the President of the United
States has full discretion in choosing candidates to fill the vacancies in judicial
offices. The choic- es of the Presidents have traditionally been of those judges
who share the same ideology that of his and his party. On the face of it most of
the judicial appointments are the Pres- ident’s personal choices, but such an
important responsibility is carried out by the Pres- ident in consultation with
many other people. The President considers the judicial nom- inations with
friendly political leaders of the nominee`s state, his attorney general and also at
times with the sitting members of the court. The nominee`s appointment is sub-
ject to the approval of the Senate. Between the President`s selection of his
nominee for the judicial office and the subsequent confirmation by the Senate,
there are lot many factors that shape the appointment process. There are many
persons involved in the ap- pointment process. Members of the Senate and
House of Representatives, political lead- ers of the President`s own party from
the nominees home state, Governors and Mayors, members of the court where
the appointment is being made, public and private groups which lobby for the
selection of a candidate of their choice.

77
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68 | P a g e
Comparative chart of appointment of judges

Country Method of Appointment to Who is involved in making

the highest court the appointments
UK SC judges are appointed by It consists of the SC Presi-
a five-person selection dent, his deputy, and one
commission. member each appointed by
the JACs of England, Scot-
land and Northern Ire-

land.(The JACs comprise lay

persons, members of the
judiciary and the Bar and
make appointments of
judges of lower courts.)
Canada Appointment are made by A selection panel compris-
governor in council ing five MPs (from the
government and the opposi-
tion) reviews list of nomi-
nees and submits 3 names
to the Prime Minister
USA Appointment are made by Supreme Court Justices are
the President nominated by the President
and confirmed by the Unit-
ed States Senate
Germany Appointments are made by Half the members of the
election. Federal Constitutional Court
are elected by the executive
and half by the
legislature

69 | P a g e
France Appointments are made by President receives pro- posals
the President for appointments from
Conseil Superieur de
la Magistrature

70 | P a g e
DIFFERENT VIEWS BY JURISTS

The Constitutional Reform Act 200578

-by Jonathan Sumption OBE79

Given the long tradition of undeclared Constitutional change in Britain, the most
strik- ing feature of the Constitutional Reform act of 2005 is probably its title.
Resort to legis- lation in relating to judicial appointments at least meant that the
prices were deliberate and consultative.

It is difficult to imagine that either Locke or Montesquieu would have been

satisfied by the Constitutional Reform act. They were mainly concern about the
dangers of fusion between the three forms of government. In English context, the
exclusive concentration on judicial independence is particularly ironic, because
while the executive's control over the legislation has increased by leaps and
bounds, relation between executive and judiciary has become more formal and
distant. By the time this Act was passed, the ju- diciary had already achieved a
very high degree of independence. The court of final ap- peal was the Appellate
Committee of the House of Lords, which was normally, part of legislature but in
law and practice a court. The Constitutional Reform Act is largely concerned
with the form. What it did was to put on formal statutory basis principles which
already governed the recruitment and status of judiciary and to alter some of the
institutional arrangements for giving effects to those principles.

The Act made changes in five areas.

First, the Act overly required the Lord Can to protect the rule of law and observe
the principle of judicial independence.

Second, it abolished the Lord Chancellor’s vestigial judicial functions.

Third, it transferred the powers and functions of the Appellate Committee of the.

78
Jonathan Sumption OBE, “The Constitutional Reform Act 2005: Judicial Appointments Balancing
Independence, Accountability and Legitimacy” 36-41 (2010), United Kingdom.

79
Jonathan Sumption OBE is a judge,Supreme Court of United Kingdom

71 | P a g e
 House of Lords to a new supreme court Fourth, while leaving the Lord
Chancellor with the power to appoint judges, it created an independent judicial
appointments commission and required him to appoint persons selected by it.

Finally, the Act sets up a formal statutory procedure, for disciplining and
removing judges found to be unfit to retain their offices.

In its treatment of judicial appointments, the Constitutional Reform Act can be

fairly described as cautious. The quality of any judicial system depends on the
willingness of outstanding individual to accept appointments, something which
is stronger in this country than in any comparable jurisdiction, but can easily be
taken for granted by those who see only the externals. The reality is that judicial
appointments are made in a frag- ile environment. The quality of recruits and
their performance after appointment have always been exceptionally sensitive to
intangible factors whose impact is not immedi- ately obvious and which are not
easily regulated by law. The collective reputation of the judiciary, public duty
and professional expectations, an instinct for the underlying value of any society
as complex as Britain’s are all part of it, along with the unspoken, unleg- islated
corpus of shared standards which characterise any institution with a long history.
These things, which are in large measure responsible for the quality of the
existing judi- ciary, are impossible to create by command, but tragically easy to
destroy by mistake.

IN INDIA

Before ‘Collegium’ System

The judges of the Supreme Court and High Court in India are appointed by
81
80
President as per Article 124(2) and 217 of the Constitution. In such
appointment, the President is required to hold consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as he may
deem necessary for the purpose. In this regard, Ar- ticle 124(2) says: Every
Judge of the Supreme Court shall be appointed by the President by warrant

80
The constitution of India 1950
81
Ibid
72 | P a g e
under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of sixty-
five years. Provided that in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of India shall always be consulted.

In the above description, the buzzword is “consultation”. For the President to

make ap- pointment, consultation with these judges is must.

In 1977, in the case of Union Of India vs. Sankalchand Set 82 which was related
to the transfer of a judge from one High Court to another under Article 222,
Supreme Court held that the President has the right to differ from the advice
provided by the consult- ants. In the words of the Court:
“The consultation implies consultation of two or more persons to find a
satisfactory so- lution. Consultation is different from consentity”.

82
MANU/SC/0065/1977: (1977) 4 SCC 193

73 | P a g e
 CHAPTER -3

PATH TO ‘COLLEGIUM’ SYSTEM

74 | P a g e
 “India is the only country where judges select themselves, determine their own
transfers and also discipline themselves”

- K.P.S Gill, former DGP

Fight for Judicial Independence

The importance of independence of judiciary can be realised by the fact that,

when a clumsy attempt was made to review the Kesavananda Bharati
judgment...Nani Palkhivala argued before the court that no review petition was
required...On this note Murtaza fazl Ali, J asked Palkhivala: Suppose the
Kesavananda Bharati decision had gone against you. Would you not have been
entitled to come and ask for a review now? So why should you object to the
government asking for a review?

To this Palkhivala replied “...let me answer this without any flippancy, my Lord?
If the Kesavananda Bharati decision had gone against us, then there would be
no Supreme Court today before which I could come for a review. But supposing
that buy some stroke of good fortune some part of the code survived, I would
have perhaps been enti- tled to ask for a review because of its baneful effect on
public interest. But here the case is just the opposite. If the decision is reversed,
then it will have a baneful effect on pub- lic interest...”83

Political Despotism

Who can forget the infamous Habeas Corpus case in which a bold dissenting
judgment that cost him the office of Chief Justice, Justice H.R. Khanna held
that even during the Emergency, the right of a person to approach the courts for
84
redressal couldn’t be taken away. There was a continuous cold war going on in
between Judiciary and executive, very since the independence. This cold war
turned ugly after a Presidential notification dated May 27, 1976 which read thus:
"In excise of the powers conferred by Article 222(1) of the Constitution of India,
the President after consultation with the Chief Jus- tice of India, is pleased to

83
Supra note 6 at 149
84
Id at 168
75 | P a g e
High Court of Gujarat as judge of the High Court of Andhra Pradesh. Khanna J.
wasn’t the only judge to face the wrath of the government. The executive sought
to transfer as many as 16 judges from various High Courts, each of whom had
ruled against the gov- ernment during the Emergency. One of those judges,
Justice SH Sheth, challenged his transfer in the Gujarat High Court. In
Chandrachud’s words, Sheth’s case, which was ultimately decided by the
Supreme Court, represents the “first tussle between the execu- tive and the
judiciary for the power to control the Court’s composition.”

The Supreme Court ruled that the executive, in ordering a transfer, was not
bound by the chief justice’s opinion; the government was only required to
consult him. But it also found that the process of consultation, in the words of
Justice VR Krishna Iyer, had to be “real, substantial and effective,” and “based
on full and proper materials placed be- fore the Chief Justice by the
Government.” Further, if the government chose to ignore the opinion of the chief
justice, the decision would run a high risk of invalidation; courts would have the
power to review such transfers, which would be presumed to have been
influenced by extraneous considerations.

These safeguards ought to have applied to the process of appointments, too.

After all, the court’s reasoning in the Sheth case echoed the intentions of the
Constitution’s fram- ers insofar as it struck a balance between the executive and
the judiciary

In this case85 the question of consent was answered in affirmative by Y.V

Chandra- chud, J. He observed ...the power to transfer High Court judge is
conferred by the Con- stitution in public interest and not for the purpose of
providing the executive with a weapon to punish a judge who does not toe its line
or who, for some reason or the other, has fallen from its grace.

P.N. Bhagwati, J was in dilemma and according to him the word transfer by its
plain natural meaning would include both kinds of transfer. But in his judgment

85
Union of India v. Sankal Chand Himatlal Sheth And others AIR 1977 SC 2328.

76 | P a g e
he wrote in the end that “having regard to the manifest intent of the Constitution-
makers to secure the independ- ence of the superior judiciary, limited meaning
should be preferred and 'transfer' should be read as confined to consensual
transfer...”

V.R Krishna Iyer, J wrote dissenting opinion on behalf of himself and S.

Murtaza Fazal Ali, J “...Intrinsically, in its transitive use, it doesn't imply the
consent of the transferee. A transfers B when he has power and authority over
him to shift from one place to another or from one position to another. It is clear
from Article 222(1) that it doesn't require the consent of the judges of the High
Court before transferring them from one High Court to another. If consent is
imported in Article 222 so as to make it a condition precedent, it would be
impossible to transfer a judge if he doesn't give his consent.”

Three Judges’ Cases

The ‘Collegium’ system has its genesis in a series of three judgments that is now
clubbed together as the “Three Judges’ Cases”. The S P Gupta 86case is called
the “First Judges’ Case”. It declared that the “primacy” of the CJI’s
recommendation to the President can be refused for “cogent reasons”. This
brought a paradigm shift in fa- vour of the executive having primacy over the
judiciary in judicial appointments for the next 12 years.

S. P. Gupta v. Union of India 87- (also known as the Judges' Transfer case)

The controversy was triggered off by a circular dated 18th March, 1981 issued
by the union Law Minister address to the governor of Punjab and the chief
ministers of the states referring to the disability of one- third of the judges of the
high courts, as far as possible, being from outside the state in the interest of
‘national integration’ and “to combat narrow parochial tendency bred by caste,
kinship and other local links and affil- iations”. The circular requested the

86
S.P. Gupta v. Union of India AIR 1982 SC 149.

87
Ibid

77 | P a g e
 Governor and the chief ministers to obtain from all the additional judges
working in the High Court in their respective States their consent to be appointed
as permanent judges in the other High Court of the country.

The main issues that fell for consideration in the case were whether the said
circular in- terfered with the judicial independence; whether at all, and if so
under what circum- stances a judge of the High Court could be transferred to
another High Court without his consent?

In their majority opinion as was written by P.N. Bhagwati, M. Fazal Ali, D.A.
Desai &
E.S. Venkataramakiaha, JJ, as to ‘consultation’ and ‘primacy’ of the position
of the CJI, observe P.N. Bhagwati, J ‘... it is obvious on a plain reading of
clause (2) of Arti- cle 124 that it is the President, which in effect and substance
means the central govern- ment, which is empowered by the Constitution to
appoint judges of the supreme court. It is clear on a plain reading of these two
Article s that the Chief Justice of India, the chief justice of the High Court and
such other judges of the high courts and of the Supreme Court as the central
government may deem it necessary to consult are merely Constitu- tional
functionaries having a consultative role and the power of appointment resides
solely and exclusively in the central government. It must be borne in mind that it
is only consultation which is provided by way of fetter upon the power of
appointment vested in the central government and consultation cannot be
equated with concurrence.

In another case of Subhash Sharma v. Union of India 88the bench observed that
the view which the four learned judges shared, in S P Gupta’s case, in our
opinion, doesn’t recognise the special and pivotal position of the institution of
the Chief Justice of India. The correctness of the opinion of the majority in SP
Gupta’s case relating to the status and importance of consultation, the primacy of
the positions of the Chief Justice of In- dia and the view that the fixation of
judge strength is not justiciable should be reconsid- ered by a larger bench.

FATE OF APPOINTMENTS POST SP GUPTA CASE

88
AIR 1991 SC 631.
78 | P a g e
Several of the appointments made after the decision in S.P Gupta came under
severe criticism. There was general dissatisfaction with the appointments being
made. With the Executive having a decisive role in the appointments process, the
bad appointments were attributed to this imbalance in the system. The charge
against the prevailing appointment system was that the functional independence
of the judges were sought to be subverted by the Executive. The Executive’s
personal favourites were hand-picked. The recruitment process was perceived to
require a secret loyalty which undermined inde- pendence. The post retirement
positions also were a cause for concern. There were seri- ous problems with the
judicial appointments of the period. Many felt the appointments had a political
bias and the entrants did not possess the calibre required of judges. There was
disaffection with some of the appointments made in a system with an
overbearing Executive.

The appointments in the post S.P. Gupta phase which created a crisis in
confidence had a bearing on the final decision in the Second Judges’ Case
judgment. There is a history which does not find mention in the Second Judges’
Case judgment. The reason is all constitutional debates in a court of law
eliminate history, economics and sociology. Yet these factors: have an
unconscious bearing on the outcome.

The post S.P. Gupta was not a happy situation. It is interesting to note that the
seeds of the collegium system originated in the judgment in S.P. Gupta which
was incidentally mooted by Justice P. N. Bhagwati:

“We would rather suggest that there must be a collegium to make

recommendation to the President in regard to appointment of a Supreme
Court or High Court judge. The recommending authority should be more-
broad based and there should be con- sultation with wider interests. If the
Collegiums is composed of persons who are expected to have knowledge of
the persons who may be fit for appointment on the bench and of qualities
required for appointment and this last requirement is abso- lutely essential

79 | P a g e
 as it would a long way towards securing the right kind of Judges, who
would be truly independent in the sense we have indicated above and who
would invest the judicial process with significance and meaning for the
deprived and exploited sections of humanity. We may point out that, even
countries like Australia and New Zealand have veered round to the view
that there should be a Judicial Commission for appointment of high
judiciary.”The dissatisfaction with the appointments process post S.P. Gupta
resulted in some seri- ous thinking in order to secure an appointments
process which would secure independ- ence and the best of talent. Justice
H.R. Khanna as chairman of the Law Commission in a letter dated January
24, 1978 suggested for a panel which would consist of the Chief Justice of
India, the Minister of Law and Justice and Company affairs and three
persons who has been a Chief Justice or a Judge of the Supreme Court. He
suggested, the pre- sent constitutional scheme,
“the method of appointment of judges is basically sound; it has, on the whole,
worked satisfactorily and does not call for any radical change. But there are
certain aspects of its war/ting about which recommendations are necessary in
order to bring about an im- provement. ”89

In July 1987 the Law Commission headed by Justice D.A. Desai submitted the
Law Commission’s 121st Report and suggested the making of the National
Judicial Service Commission. It was to be composed of a “body of experts drawn
from various interest groups in close touch with the Administration of Justice
such as judges, lawyers, law academics and litigants."90It is interesting to note
that the body was to comprise of the 11 persons out of whom seven were judges
or ex-judges, one Law Minister and the At- torney General. The predominance
was obviously judges in which the Chief Justice of India would have a
preeminent position along with three senior most judges; three sen- ior most
Chief Justices of the High Courts, the Minister of Law and Justice, the Attor-
ney General and an outstanding law academic were to be part of the selection
body.

89
Letter of Justice H.R. Khanna Chairman of Law Commission dated 24th January 1978 to the Minister of Law and
Justice and Company Affairs.
90
121st Report of the Law Commission on “A New Forum for Judicial Appointments” headed by Hon’ble Justice
D.A. Desai.

80 | P a g e
The recommendations of the report of Justice D.A. Desai Commission found
expression in the Constitution (67th Amendment) Act, 1990. This was perhaps the
most progres- sive and well-meaning of amendments to bring accountability and
independence of the judiciary. This bill was prepared after extensive consultations
with the Executive, the Chief Justice of India, the Chief Justices of High Courts,
the Attorney General, the Chairman of the Bat Council and State Bar Councils and
Bar Associations. The credit must in full measure go to the then law Minister
Dinesh Goswami, a man who had the good and well being of the judiciary. He was
candid enough to state in his objects and reasons that the government intended to
set up a high-level judicial commission “so as to obviate the criticism of
arbitrariness on the part of the executive in such appoint- ments and transfers and
91
also to make such appointments without any delay.”

The recommendations of Justice D.A. Desai were introduced as a bill in the Lok
Sabha which if passed would have been known as the Constitution (67th
Amendment) Act, 1990. The bill did not pass because the Lok Sabha stood
dissolved in May 1991. In a petition filed by Subhash Sharma, Advocate of the
Supreme Court whose knowledge and inputs rings through in every major
decision of the Supreme Court, before the Su- preme Court. The Bench
consisting of Chief Justice Ranganath Mishra, Justice M.N. Venkatchaliah and
Justice M. M.
Punchi held as follows:

“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 was to vest in the State
government or even the Central government, the picture is likely to be black
and the process of selection ul- timately may turn out to be difficult.”

“To say that the power to appoint solely vests with the Executive and that
the Ex- ecutive, after bestowing such consideration on the result of

91
Statement of Objects and Reasons dated 11th May of 1990 by Mr. Dines Goswami, Minister of Law and Justice
introducing Bill 93 of 1990.

81 | P a g e
 consultations with the judicial organ of the state, would be at liberty to take
such decision as it may think fit in the matter of appointments, is an
oversimplification of a sensitive and subtle constitutional sentence and, if
allowed full play, would-be suburbs of the doctrine of judicial
92
independence.” The opinion in Subhash Shanna was unanimous. That was
the genesis of the Constitu- tion of the nine judge bench in the Second
Judges’ case where the question as to the meaning and purport of the word
‘consultation’ in articles 124(2) and 217(1) of the Constitution came to be
considered. Integral to the question before the court was wheth- er S.P.
Gupta was correctly decided and who had the primacy with regard to
appoint- ment of judges.

On October 6, 1993, came a nine-judge bench decision in the “Second Judges

Case”.

Supreme Court Advocates-on Record Association v Union of India (Second

Judg- es’ Case)
93

The controversy regarding judicial appointments revolves around the debate as

to who has ‘primacy’ and who is ‘best equipped” to exercise the power to
appoint members of the higher judiciary: Is it the Chief Justice of India or is it
the Executive being the gov- ernment of the day? The wording of Article 124 of
the Constitution of India has been sufficiently vague to have triggered a debate
which sustained for over six decades and continues to this day. The Constitution
prescribes that it is the President of India who appoints judges of the Supreme
Court of India, “after consultation with such of the judge: of the Supreme Court
94
and of the High Courts” as the President may think nec- essary. Similarly, the
President appoints judges of the High Court, again with the cave- at, that the
appointment will be done in “consultation with the Chief justice of India, the
95
Governor the state and the Chief justice of the High Court”.

92
Subhash Sharma v. Union of India AIR 1991 SC 631.
93
AIR 1994 SC 268.
94
Constitution of India, Article 124.
95
Constitution of India, Article 217.

82 | P a g e
It is this word ‘consultation’ used in Articles 124 and 217 of the Constitution
which has been the bone of contention from the time of the debates in the
Constituent Assembly. The true import and meaning of the word ‘consultation’
and consequently the question as to whose Opinion has ‘primary’, received
intense scrutiny of the Supreme Court. The balance of power of appointment
tilted on the interpretation of the word ‘consultation’.

The Supreme Court, during a period of twelve years decided three cases which in
popu- lar parlance are called, S.P. Gupta case (the First Judges case), SC
Advocates on Record (the Second Judges case) and Special Reference No.1 of
1998 (the Third Judges case). The first two decisions gave widely divergent
views to the meaning of the word ‘consul- tation’ and accordingly the pendulum
of the power of appointment, swung from the Ex- ecutive in S.P. Gupta case
(1981) to the exclusive power of the Judiciary itself in the SCAORA(1993).
Subsequently, the 1993 decision was endorsed in Special Reference No. 1 of
1998 with a prescription for a wider Collegium. This debate on primacy, as aptly
put by Justice J.S. Verma, “it intended to determine who amongst the
constitution- al functionaries involved in the integrated process of appointments,
is best equipped to discharge the greater burden attached to tire role of primacy,
of making the proper choice.”
Pursuant to the direction of a three judges bench made in Subhash Sharma, this
case was placed before this nine judge’s bench to explore the following
important question as it had been felt by that bench that the correctness of the
ratio in SP Gupta required reconsideration by a larger bench. The question that
arose was: whether the opinion of the Chief Justice of India in regard to the
appointment of judges to the Supreme Court and high courts as well as in
regards to the transfer of High Court Judges, is entitled to primacy?

Concurring opinions:

J.S. Verma, J. wrote the leading opinion for himself and four brother judges that:

1. The process of appointment of Judges to the Supreme

83 | P a g e
 Court and the High Courts is an integrated
'participatory consultative process' for selecting the
best and most suit- able persons available for
appointment; and all the constitutional functionaries
must perform this duty collectively with a view
primarily to reach an agreed decision, sub serving the
constitutional purpose, so that the occasion of
primary does not arise.
2. Initiation of the proposal for appointment in the case
of the Supreme Court must be by the Chief Justice of
India, and in the case of a High Court by the Chief
Justice of that High Court; and for transfer of a
Judge/Chief Justice of a High Court, the pro- posal
had to be initiated by the Chief Justice of India. This
is the manner in which proposals for appointments to
the Supreme Court and the High Courts as well as for
the transfers of Judges/Chief Justices of the High
Courts must invariably be made.

3. In the event of conflicting opinions by the

constitutional functionaries, the opinion of the
judiciary 'symbolised by the view of the Chief Justice
of India and formed in the manner indicated, has
primacy.
4. No appointment of any Judge to the Supreme Court
or any High Court can be made, unless it is in
conformity with the opinion of the Chief Justice of
India.
5. In exceptional cases alone, for stated strong cogent
reasons, disclosed to the Chief Justice of India,
indicating that the recommended is not suitable for
appointment, that appointment recommended by the

84 | P a g e
 Chief Justice of India may not be made. However, if
the stated reasons are not accepted by the Chief
Justice of India and the other Judges of the Supreme
Court who have been consulted in the matter, on
reiter- ation of the recommendation by the Chief
Justice of India, the appointment should be made as a
healthy convention.
6. Appointment to the office of the Chief Justice of
India should be of the senior most Judge of the
Supreme Court considered fit to hold the office.
7. The opinion of the Chief Justice of India has not
mere primacy, but is determinative in the matter of
transfers of High Court judges/Chief Justices.
8. Consent of the transferred Judge/Chief Justice is not
required for either the first of any subsequent transfer
from one High Court to another.
9. Any transfer made on the recommendation of the
Chief Justice of India is not to be deemed to be
punitive, and such transfer is not justiciable on any
ground.
10. In making all appointments and transfers, the norms
indicated must be followed. However, the same do
not confer any justiciable right in any one.
11. Only limited judicial review on the grounds specified
earlier is available in matters of appointments and
transfers.
12. The initial appointment of Judge can be made to a
High Court other than that for which the proposal
was initiated.

13. Fixation of Judge-strength in the High Courts is

justiciable, but only to the extent and in the manner
indicated.

85 | P a g e
 14. The majority opinion in S.P. Gupta , in so far as it
takes the contrary view relating to primacy of the role
of the Chief Justice of India in matters of
appointments and transfers, and the justiciability of
these matters as well as in relation to Judge- strength,
does not commend itself to us as being the correct
view. The relevant pro- visions of the Constitution,
including the constitutional scheme must now be
con- strued, understood and implemented in the
manner indicated herein by us.

This was what ushered in the ‘Collegium’ system. The majority verdict written by
Jus- tice J.S. Verma said “justiciability” and “primacy” required that the CJI be
given the “primal” role in such appointments. It overturned the S P Gupta
judgment, saying “the role of the CJI is primal in nature because this being a topic
within the judicial family, the executive cannot have an equal say in the matter.
Here the word ‘consultation’ would shrink in a mini form. Should the executive
have an equal role and be in diver- gence of many a proposal, germs of indiscipline
96
would grow in the judiciary.”

Justice Verma’s majority judgment saw dissent within the bench itself on the
individ- ual role of the CJI. In a total of five judgments delivered in the Second
Judges case, Jus- tice Verma spoke for only himself and four other judges.
Justice Pandian and Justice Kuldip Singh went on to write individual
judgments supporting the majority view. But Justice Ahmadi had dissented and
Justice Punchhi took the view that, the CJI need not restrict himself to just two
judges and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two
judges in judicial appointments and transfers. In many cases, CJIs took unilateral
decisions with- out consulting two colleagues. Besides, the President became
only an approver.

96
Salamuddinansari.blogspot.in, Jan. 23, 2013.

86 | P a g e
World’s most powerful Supreme Court

The threats undermining the independence of the judiciary and the Executive’s
com- plete stranglehold on judicial appointments was the backdrop of the
decision of the Su- preme Court on October 6, 1993 when it delivered its verdict
in SCAORA. In one stroke, the Supreme Court of India became the most
powerful Supreme Court in the world. Its power emanated from the decisive say
it had in the appointment of judges of the higher judiciary. The decision in
SCAORA is perhaps one of the most misunder- stood decisions the Supreme
Court has delivered. It has been perceived by the critics as a usurpation of power
of appointments by the judiciary a power not exercised in any other jurisdiction.

The context has to be borne in mind while appreciating the decision which
overruled
S.P. Gupta. Justice Kuldip Singh, in his opinion, rationalized the new paradigm
being erected by the majority:

“The case before us must be considered in the light of our entire experience
and not merely in that of what was said by the Framers o the Constitution.
While deciding the questions posed before us, we must consider what
Judiciary is today and not what it was fifty years back. The Constitution has
not only to be read in the light of contemporary circumstances and values; it
has to read in such a way that the cir- cumstances and values of the present
generation are given expression in its provi- sions.”

WAS SECOND JUDGES’ CASE A RADICAL DEPARTURE FROM THE

CAN- ONS OF INTERPRETATION OF THE CONSTITUTION?

The decision in SCAORA was seen as a welcome step in securing the

independence of the Judiciary. Two decades later, the decision came under fire
from the very same quar- ter which applauded the decision.

The entire controversy and the legitimacy of the anti-Collegium argument has
been that the literal interpretation of the word ‘consultation’ has been abandoned
in favour of a more contrived meaning, that of ‘concurrence’. This according to
87 | P a g e
the critics amounted to a usurpation of power not contemplated by the founding
fathers. The debate on judicial appointments always begins by trying by
assessing what exactly was in the mind of framers of the Constitution when this
extremely delicate issue was being considered? Throughout the Constituent
Assembly Debates, the necessity of hav- ing an independent judiciary animated
the discussion surrounding the Constitution of the Supreme Court, the High
Court and the appointment of judges. Dr. B.R. Ambedkar, the Chairman of the
Constituent Drafting Committee in 1949, very much anticipated the controversy
which would surround the mechanism and the exercise of the power to make
appointments to the higher judiciary. Dr. Ambedkar’s view was to balance the
power of appointment amongst the various constitutional authorities, in making
the ju- dicial appointments. It is this following passage of Dr. Ambedkar which
provides the ammunition to those against a judge centric appointment system
elucidated in SCAORA:

"The draft article, therefore, steers a middle course. It does not make the
President, the supreme and the absolute authority in the matter of making
appointments. It does not also import the influence of the Legislature. The
provision in the article is at there should be consultation of persons who are
ex hypothesis, well qualified to give proper advice in matters of this sort,
and my judgment is at this sort of provi- sion may be regarded as sufficient
for the moment".

“With regard to the question of the concurrence of the Chief Justice, it

seems to me that those who advocate that proposition seem to rely implicitly
both on the impar- tiality of the Chief Justice and the soundness of his
judgment. I personally feel no doubt that the Chief Justice is a very eminent,
person. But after all the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as common people have; and I
think, to allow the Chief Justice practically a veto upon the appointment of
judges is really to transfer the authority to the Chief Justice which we are
not prepared to vest in the President or the Government of the day. I

88 | P a g e
 97
therefore, think that is also a dangerous proposition.”

The criticism that ‘consultation’ has been interpreted to mean ‘concurrence’ in

articles 124 and 217 of the Constitution and that ‘Collegium’ does not find
mention in the Constituent Assembly debates nor in the Constitution itself is
based on the View that only a literal interpretation of the Constitution is
possible. The study of Constitutions will show this perception is not correct. The
judgment in SCAORA is not a departure from settled constitutional principles of
interpretation. Constitutional courts have read into the Constitution, concepts
and texts, which were not there in the original text.

In re Special Reference 1 of 1998 (Third Judges’ Case)

98

In 1998, President K R Narayanan issued a Presidential reference to the Supreme

Court as to what the term “consultation” really means in Articles 124, 217 and
222 of the Constitution. The question in "Third Judges Case" was, if the term
“consultation” re- quires consultation with a number of judges in forming the
CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of
the Article s. In reply, the Su- preme Court laid down nine guidelines for the
functioning of the Coram for appoint- ments/transfers; this came to be the
present form of the ‘Collegium’.

Besides, judgment written by Justice S.P. Bharucha as the head of the nine-judge
bench used the opportunity to strongly reinforce the concept of "primacy" of the
highest judi- ciary over the executive. Justice S.P. Bharucha wrote the
unanimous opinion of the nine judges; holding as follows:

“The Chief Justice of India must make a recommendation to appoint a

Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge
of a High Court in consultation with the four senior most puisne Judges of
the Supreme Court. In so far as an appointment to the High Court is
concerned, the recommendation must be made in consultation with the two

97
Constituent Assembly Debates, Constituent Assembly of India, vol III (24 May 1949).
98
AIR 1999 SC 1
89 | P a g e
 99
senior most puisne Judges of the Supreme Court...”

“...The views of the other Judges consulted should be in writing and should
be con- veyed to the Government of India by the Chief Justice of India
100
along with his views to the extent set out in the body of this opinion...”

The questions in the President reference related, broadly, to three aspects:

1. Consultation between the Chief Justice of India and his brothers Judges in
the matter of appointments of Supreme Court and High Court Judges and
transfers of the latter;
2. Judicial review of transfers of Judges; and

3. The relevance of seniority in making appointments to the Supreme Court.

Justice S.P. Bharucha observed...

• The expression “consultation with the Chief Justice of India” in Articles

217(1) and 222 (I) 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.
• The transfer of puisne Judges is judicially reviewable only to this extent that
the recommendation that has been made by the Chief Justice of India in this
behalf has not been made in consultation with the four senior-most puisne
Judges of the Su- preme Court and or that the views of the Chief Justice of
the High Court from which the transfer is to be effected and of the Chief
Justice of the High Court to which the transfer is to be effected have not been
obtained.
• The Chief Justice of India must make a recommendation to appoint a Judge
of the Supreme Court and to transfer a Chief Justice or puisne Judge of a
High Court in consultation with the four senior-most puisne Judges of the
Supreme Court. Insofar as an appointment to the High Court is concerned,

99
Ibid
100
Ibid.
90 | P a g e
 the recommendation must be made in consultation with the two senior-most
puisne Judges of the Supreme Court.

• The Chief Justice of India is not entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme Court, in
respect of materials and information conveyed by the Government of India
for non-appointment of a Judge recommended for appointment.

• The requirement of consultation by the Chief Justice of India with his

colleagues who are likely to be conversant with the affairs of the concerned
High Court does not refer only to those Judges who have that High Court
as a parent High Court. It

does not exclude Judges who have occupied the office of a Judge or Chief
Justice of that High Court on transfer.

• “Strong cogent reasons” do not have to be recorded, as justification for a

departure from the order of seniority, in respect of each senior Judge who has
been passed over. What has to be recorded is the positive reason for the
recommendation.

• The view of the other Judges consulted should be in writing and should be
conveyed to the Government of India by the Chief Justice of India along
with his views to the extent set out in the body of this opinion.

• The Chief Justice of India is obliged to comply with the norms and the
requirement of the consultation process, as aforestated, in making his
recommendations to the Government of India.

• Recommendations made by the Chief Justice of India without complying

with the norms and requirements of the consultation process, as aforetasted,
are not binding upon the Government of India.

91 | P a g e
 DEVELOPMENTS POST SECOND AND THIRD JUDGES CASE

Report of Venkatchaliah Commission

In February 2000 the NDA government set up the National Commission to

Review the working of the Constitution consisting of the former CJI Justice
Venkatchliah, Justice Jeevan Reddy and Justice Sarkaria. Again the paramount
concern was “the necessity of preserving and promoting the concept of judicial
independence and the all pervading fact that independence of the judiciary is a
101
basic feature of the Constitution”. It went on to elaborate, “if tomorrow a
National judicial Commission is created and it is so constituted that the
Executive dominates it, it would equally be violated of the basic structure of
102
independence of the judiciary of our Constitution” . Further elucidated the
position “it is equally essential that the commission be presided over by the
Chief justice of India and by not else.”103

The Commission proposed the National Judicial Commission for appointment of

judges of the Supreme Court and the Constitution was as follows
a) The Chief Justice of India: Chairman

b) the senior most judges of the Supreme Court: members

c) the Union Minister for Law and Justice: member

d) One eminent person nominated by the President after consulting the Chief
Justice of India: member.

It is interesting to note that the Commission’s report expressly provided, “the

recom- mendation for the establishment of a National Judicial Commission and
its composition are to be treated as integral in View of the need to preserve the
independence of the ju- diciary”. The report of the Venkatchaliah Commission

101
National Commission to Review the working of the Constitution, Vol 2 of the Report of
Venkatchaliah Commis- sion.

102
Ibid
103
Ibid.
92 | P a g e
(2002) transmuted into the Con- stitution (98th Amendment) Bill number 41 of
2003. The Bill came to be introduced by the then NDA government in the 13th
Lok Sabha. The Bill could not be passed because of the dissolution of the Lok
Sabha in March 2004 when the government called for fresh elections.

The Law Commission headed by Dr. A.R. Lakshmanan as Chairman suo moto
submit- ted its 214th Report. Strangely it made no reference to the
Venkatachaliah Commission Report of the Constitution (98th Amendment) Bill,
2003. It came with the bizarre con- clusion, that there were two alternatives
available to the Government. One was to seek reconsideration of the three
judgments before the Supreme Court to restore the original balance of power.
The Other option was “to pass a law to restore the primacy of the Chief justice of
India and the power of the Executive to make appointments.

UPA’S ATTEMPT AT NJAC

The UPA government introduced the Constitution (120th Amendment) Bill No.
IX 2013. It sought to establish a ‘broad-based Judicial Appointment
Commission’ in order to ‘provide a meaningful role to the Executive and
Judiciary to present their view points and make the participants accountable
while introducing transparency in the selection processes’. Therefore the
Constitution (120th Amendment) Bill, 2013 inserted a new Article 124 A that
constituted a Judicial Appointments Commission. The bill was passed through
the Rajya Sabha in September 2013. The dissolution of the 15th Lok Sabha in
May 2014 and the calling of general elections resulted in the bill not going
through the Lok Sabha.

NDA’S NJAC BILL 2014 AND THE CONSTITUTION 121st

AMENDMENT BILL 2014

In the general elections of April-May 2014, the Bharatiya Janata Party led
alliance came into power with an absolute majority. The new government did not
waste much time and introduced the Constitution (121st Amendment) Bill in the
Lok Sabha. The Bill re- sembled its precursor introduced by the UPA II
93 | P a g e
government. The Bill was passed with a rapidity and unanimity unheard of in
recent times. During August 13 and 14 of 2014 the Constitution Bill as well as
the NJAC Bill was passed by both Houses of Parliament. By December 2014,
more than one half of the states had passed resolutions ratifying the Constitution
(121st Amendment) Bill 2014 and was presented to the President of India who
gave his assent on 31 December 2014.

DEFECTS IN THE ‘COLLEGIUM’ SYSTEM

Imperium in Imperio (empire within an empire)

India is the only country in the world where judges appoint judges. Soli
Sorabjee in NJAC debate raised this question that “point out one modern
democracy in the world where judges exclusively appoint judges”? This system
has created an empire within an empire, where only judges have the power to appoint
judges. The complete exclusion of the executive from the judicial appointment process
created a system where a few judg- es appoint the rest in complete secrecy.

No sense of transparency or of accountability

In an interview, renowned jurist and senior Supreme Court lawyer Fali S.

Nariman un- derlines the need to do away with the ‘Collegium’ system.
Commenting on the NJAC bill he said “there are many things in the NJAC bill I
may not agree with. But there is no doubt in my mind that the ‘Collegium’
system is not working well. There has been no sense of accountability or of
transparency". Pointing out the reason behind this failure he said “this is a new
and different role that judges have taken upon themselves... ‘Col- legium’ system
was an experiment and it was supposed to work, and it would have, if only
people had paid a little more attention. Unfortunately, judges simply don't have
104
the time; they are so overworked in court”.

Political Favouritism and biasness

104
Interview with Fali S. Nariman, Senior Supreme Court Lawyer , The Indian Express , Oct. 18, 2013.

94 | P a g e
 On 5th of September 2016 the Supreme Court ‘Collegium’ system had rejected
the can- didature of 11 judges and at least half a dozen others from the state
judicial service for judgeship of Allahabad High Court. Many of the candidates
rejected by the Supreme Court
‘Collegium’ for the Allahabad High Court are appeared to be relatives of sitting
and former judges and some related to politicians. Giving reasons for this
Collegium ob- served ‘such favouritism leading to a decline in the quality of
appointments’.105

Dissenting opinions in Second Judges’ Case

In his dissenting opinion observe M.M. Punchhi, J "I am in disagreement,

though re- gretfully but respectfully, with the views of the majority, in virtually
rewriting the Con- stitution to assign a role to the Chief Justice of India, in the
whole conspectus of the Constitution...".Justice Ahmadi observed “A heavy
responsibilities lies on the judges when they are called upon to interpret the
Constitution, responsibility is all the heavier when the provi- sions to be
construed relate to the powers of judiciary...” Also observed “...the power to
appoint judges to the superior courts is an executive function. Therefore,
however con- vincing it may sound to the idea of judicial independence that the
views of the Chief Jus- tice of India must have primacy as his views expressed
after consulting his two senior most colleagues would be symbol of the views of
the entire judiciary; the submission cannot be accepted unless the Constitution is
amended. As the Constitutional provisions presently stand, the submission based
on this line of reasoning is unacceptable...”

The Late Justice VR Krishna Iyer’s opinion

Another great deficiency is that a ‘Collegium’ is untrained in the task, selects

judges in secret and bizarre fashion. There could be room for nepotism,
communalism and fa- vouritism in the absence of guidelines. The selection process
excludes the Executive. Nowhere in the world do we have judges alone selecting
other judges. The ‘Collegium’ is a disaster: the P.D. Dinakaran episode is an

105
“Supreme Court ‘Collegium’ rejects 11 lawyers for Allahabad high court” The Times of India, Sept. 6, 2016
95 | P a g e
 106
example.

106
“The Syndrome of Judicial Arrears”, The Hindu, December 2, 2009.
96 | P a g e
 CHAPTER 4

DIFFERENT VIEWS ON JUDICIAL AP-

POINTMENTS - BY JUDGES AND LAWYERS
OF THE SUPREME COURT OF INDIA

97 | P a g e
 “Procedure for selection of Judges shouldn’t Compromise the Independence of
Judici- ary”107

-by Justice A.K.

108
Patnaik

“...The collegium, however, has ensured an independent judiciary which only

can pro- tect and enforce the constitutional rights of the people against executive
excesses and majoritarian legislations. Prior to the judgment in Second Judges’
case, four out of five judges of the Supreme Court had held in ADM Jabalpur v.
SK Shukla reported that in view of the Presidential Order of 1975, no person had
the locus standi to move any peti- tion before High Court under Article 226 of
the Constitution challenging the legality of his detention on any ground
whatsoever.

The sole dissenting judge, HR Khanna, on the other hand held, that a person has
a locus standi to move the court for enforcing his rights to life and liberty which

107
The Economic Times, July 31, 2014.
108
Justice A.K. Patnaik is former Judge, Supreme Court of India
98 | P a g e
 was part of rule of law and only independent courts can compel the
government to conform to rule of law. This one case demonstrates that without
an independent judiciary, protection of the constitutional rights of the people is
not possible. I do not recollect any case after 1993 in which the majority of
judges of a Bench of the Supreme Court has failed to pro- tect the right to life
and liberty of a person in the way it failed in ADM Jabalpur v. SK Shukla.

Therefore, while we have been able to ensure that judges are independent of the
execu- tive, we have not been able to ensure that the best and the honest are
appointed as Judg- es of the High Court and the Supreme Court even after 1993.
The judgment of the Su- preme Court in 1993 is a Judgment by a bench of nine
Judges. It is quite unlikely that a larger Bench of the Supreme Court will be able
to change the view taken in this judg- ment in the near future. The only
constitutionally feasible solution is to amend Articles 124 and 217 of the
Constitution so as to provide that appointment of Judges to the Su- preme Court
and High Court will be made on the recommendation of National Judicial
Commission. A constitutional amendment is likely to be challenged on the
ground that it alters the basic structure or the framework of the Constitution,
namely the independ- ence of the Judiciary. Care will therefore have to be taken
by Parliament to ensure that the composition of the Judicial Commission and the
procedure for selection of judges are such as not to compromise the
independence of Judiciary. According to Granville Austin, ‘an independent
Judiciary begins with who appoint: and what caliber of judges. We must work on
this advice of the great Jurist.

109
The Judiciary has failed the Judiciary
110
-by Dushyant Dave

The passage of the two Bills that aim to replace the collegium system with a
national judicial appointments commission (NJAC) has led to the formation of
two camps: While one camp feels that the judiciary will cease to be independent,
the other believes that the executive has corrected an anomaly.

109
Hindustan Times, August 20, 2014.
110
Dushyant Dave is a Senior Advocate, Supreme Court of India.
99 | P a g e
So what is the correct position?

The two Bills remove the basis of the 1993 and 19982 judgments of the Supreme
Court, which had rewritten constitutional provisions and virtually arrogated to
itself the power of appointing judges to the Supreme Court and High Courts by
giving primacy to the opinion of the Chief Justice of India (CJI), later expanded
to the collegium. The- Constitution mandates that such power would rest with
the President of India in consul- tation with the Chief Justice of India. The
Constituent Assembly had on May 24, 1949, emphatically rejected the amending
of these words, “it shall be made with the concur- rence of the CJI”.

BR Ambedkar defended the current Article 124, stating, “There can be no

difference of opinion in the House that our Judiciary must both be independent
of the Executive and must also be competent in it. And the question is how these
two objects could be se- cured...I think, to allow the Chief Justice practically a
veto upon the appointment of judges is really to transfer the authority to the
Chief Justice which we are not prepared to vest in the President or the
Government of the day. I therefore, think that is also a dangerous proposition”.

Our experience of the last two decades shows how prophetic these words were.
Far from the salutary objects in the 1993 SC verdict as to “rule of law, persons
with known background and reputation, unimpeachable integrity, selecting the
best from those available, ethical behaviour etc”, the appointment procedure had
degenerated into mere ‘give and take’, ‘nepotism’, and ‘sycophancy’. While
many good judges have been ap- pointed, a large number of undeserving persons
in terms of the Supreme Courts’ own judgment were also selected. It is well
known that the judiciary is afflicted with medioc- rity, inefficiency, lethargy and
corruption. Naturally, the justice delivery system in this country is failing, if it
has not failed already, with arrears of over 30 million cases. The biggest victim
has been intellectualism on the Bench. The quality of judgments between 1950
and 1990 and post 1990 certify the same.

100 | P a g e
 The judiciary has failed the judiciary

The two Bills, therefore, not only restore the constitutional scheme and morality
of things but also seek to correct the failures of the judiciary. While I have
serious reser- vations about the NJAC and its functioning, I believe the removal
of the judicial power to appoint judges is a step in the right direction. It will
stop politics among judges. As for the test, only time will tell.

111
Two Bills that Threaten democracy
112
-by Ram Jethmalani

The effect of the two Bill is to restore the doctrine of Executive supremacy in
high ju- dicial appointments. The two Bills together, as well as individually, are
a serious threat to our democratic system and the independence of the judiciary,
which, fortunately, are basic features of our Constitution. Experience shows that
it is only when the executive gets sunk in corruption and governance
bankruptcy that it resorts to stifling other branches of government
unconstitutionally through executive supremacy. The judiciary becomes a red
rag before the executive, and judges who are a thorn in the flesh, are shown
crude executive muscle power through Bills such as these. It is my belief that
even if a Constitutional Amendment is approved by a two-third majority by
both the Houses, it would still be void as repugnant to the basic features of the
Constitution, which cannot be repealed or diluted

The combined effect of the two Bills is to restore the pre 1993 position, which
had been sanctified by the SP. Gupta judgment of 1981. It is that judgment,
which was set aside by the subsequent nine-judge bench, which, fortunately, put
an end to the doc- trine of executive primacy in the matter of high judicial
appointments. The nine-judge bench accepted the argument made by me,
supported by other distinguished counsels, that Article 50 of the Constitution is
a basic feature of the Constitution within the meaning of that concept
enunciated by the thirteen-judge Kesavananda Bharati judg- ment of 1973,

111
The Sunday Guardian, September 7, 2014
112
Ram Jethmalani is a Senior Advocate, Supreme Court of India
101 | P a g e
 report reported in (1973) 4 SSC 25. It is this judgment, which protected the
Indian Constitution and the people of India from the kind of diabolical
constitutional subversion by the late Indira Gandhi and her sycophantic
advisers.

There are so many instances where Supreme Court has set aside constitutional
amend- ments because in its view they violated the basic structure principle of
the independence of judiciary.

113
In P Sambamurthy v. State of Andhra Pradesh and Another , , a constitution
bench of the Supreme Court set aside the proviso to Clause 5 of Article 371-D of
the Constitu- tion, which conferred on the state government, the power to modify
or annul the final order of an administrative tribunal. This constitutional
provision was found to violate the principle of independence of judiciary and
was thus held to be beyond the constitu- tive or amending power of the
Parliament.
114
In Kihoto Hollohan v. Zachillu and Others, a constitution bench of the
Supreme Court held that Paragraph 7 of Schedule X of the Constitution, which
excluded the ju- risdiction of all courts including the Supreme Court under
Article 136 and the high courts under Articles 226 and 227 on any matter
regarding the disqualification of a member of Parliament or state legislature on
account of defection, violated the basic structure principles of independence of
judiciary and the separation of powers.

115
In L. Chandrakumar v. Union of India, a seven-judge bench of the Supreme Court
held that Articles 323-A(2)(d) and 323-B(3)(d), which empowered the Parliament
and the state legislatures to exclude the jurisdiction of all courts except the
Supreme Court under Article 136, was violative of the basic structure principle of
judicial review, which was crucial for maintaining the independence

113
(1987) 1 SCC 362
114
(1992) Supp 2 SCC 651
115
(1997) 3 SCC 261
102 | P a g e
of the judiciary.
These cases show that the supreme Court has not been shy about setting aside
constitutional provisions on the touchstone of judicial independence as a basic
feature. The Supreme Court’s approach has not been to evolve any standard or
well-defined test to determine what constitutes judicial independence. Instead,
the Court has followed a case- by-case approach in determining whether a
specific constitutional amendment interferes with the independence of the
judiciary, somewhat similar to the “you know it when you see it” test used in
some other contexts. In light of this history, it would be very likely that the
Supreme Court will set aside any provisions in the proposed constitutional
amendment that seeks to interfere with independence of judiciary.

Article 50 of our Constitution is an extremely simple Article consisting of only

one sen- tence.

“The State shall take steps to separate the judiciary from the executive in the
public services of the State.” This Article does not mean that judges of the
Supreme Court will not socially mix with the ministers or live in separate
bungalows or in different towns. The Supreme Court rightly construed this
Article to mean that the government, which is the cause of more than half the
litigation in our courts, cannot be permitted to have any control over the
appointment of judges, who must deal with every litigant in- cluding the
government, on the merits of their case. Frequent litigant cannot be permit- ted
by any civilised society to be the appointing authority of judges of his liking or
choice.

Though the present collegium system does ensure independence of the judiciary
from the executive, it could do with further reform, though not dilution. A
possible reform is certainly a National Judicial Commission with proper
structure and mandate. It must include the Prime Minister or any other minister
of his choice, but equally it must in- clude the Leader of the Opposition, for
parity between the government and the Opposi- tion. The present Bill has
almost destroyed the role of the Leader of opposition, his role being confined to
103 | P a g e
participation in selecting two eminent citizens along with the Prime Minister
and the Chief Justice of India. The membership of the Chief Jusitce of India as
a chairperson is an absolute necessity.the organized Bar of the country must be
represented in the commission, as no one knows the character and calibre of the
potential appointees better than practicing lawyers. The Lokpal, whenever the
office is created, should be a member, and the academic world and social
sciences must also be repre- sented by a process which excludes executive
influence.

I would like to add that though some members of the judiciary may be accused
of some questionable acts, on the whole the judiciary has discharged its
responsibility in a much more honourable and conscientious manner than the
other branches of government. I had hoped that the government would refer the
Bills to a Select Committee of Parlia- ment where the views of the judges, the
Bar, jurists, and other opinion leaders would be taken on board, for the
education of the nation and enlightenment of its elected rep- resentatives.

Justice Kehar Stated:-

“I have independently arrived at the conclusion, that clause (c) of Article
124A(1) is ultra vires the provisions of the Constitution, because of the inclusion
of the Union Min- ister in charge of Law and Justice as an ex officio Member of
the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the
principles of “independence of the judi- ciary”, as well as, “separation of
powers”. It has also been concluded by me, that clause (d) of Article 124A(1)
which provides for the inclusion of two “eminent persons” as Members of the
NJAC is ultra vires the provisions of the Constitution, for a variety of reasons.
The same has also been held as violative of the “basic structure” of the Con-
stitution.”

Justice Joseph Kurien in his judgment started out with the Latin maxim:
“Entia Non Sunt Multiplicanda Sine Necessitate (Things should not be multiplied
with- out necessity)”. Complimenting his brother judges‟ “masterpiece”

104 | P a g e
judgments, he wrote a very short judgment “ leaving all legal jargons and using a
language of common man, the core issue before us id the validity of the
Constitution 99th amendment”, Direct par- ticipation of the Executive or the other
non-judicial elements would ultimately lead to structured bargaining in
appointment, if not, anything worse,. Amy attempt by diluting the basic structure to
create a committed judiciary, however remote be the possibility, is to be nipped in
the bud.” According to Justice Roberts,

“Court has no power to gerrymander the constitution. Contextually, I would

say, the parliament has no power to gerrymander the Constitution. The
constitution 99th amendment impairs the structural distribution of powers and
hence it is impermissible”

105 | P a g e
 CHAPTER 5

NJAC: AN ATTEMPT TO SCRAP

‘COLLEGIUM’

106 | P a g e
 In April-May 2014 two bills were introduced Rajya Sabha to scrap the existing
‘Colle- gium’ system. The bills were "THE NATIONAL JUDICIAL
116
APPOINTMENTS COMMISSION BILL, 2014" & to achieve the objective
of setting up the commis- sion some amendments in the Article(s) of the
Constitution were envisaged by “THE CONSTITUTION (121ST
117
AMENDMENT) BILL, 2014” .

It states that the National Judicial Appointment Commission will make the
participants in the selection accountable and introduce “transparency” in the
process. The Bill seeks to set up a panel headed by the Chief Justice of India to
appoint and transfer senior judges.

To
ac
hi
ev
e
th
e pur- ported objective, Article(s)
124, 127,
128, 217,
222, 224,
224A and
231 were
amended and Article’s 124A, 124B and 124C were inserted in the Constitution,
118
through the Constitution (99th Amendment) Act . The amendment, received
the assent of the President on 31.12.2014, with effect from 13.4.2015
(consequent upon its notification in the Gazette of India). Simultaneously
119
therewith, the Parliament enacted the NJAC Act , which also received the
assent of the President on 31.12.2014. The same was also brought into force,

116
The National Judicial Appointment Commission Bill, 2014 (Bill No. 96 of 2014).
117
The Constitution (121st Amendment) Bill, 2014 (Bill No. 97 of 2014).
118
The Constitution (Ninety – Ninth Amendment) Act, 2014
119
The National Judicial Appointments Commission Act, 2014 (40 of 2014).
107 | P a g e
With effect from 13.4.2015 (by its notification in the Gazetted of India).

120
Article 124A provides for Constitution and composition of NJAC. It states
that...There shall be a Commission to be known as the National Judicial
Appointments Commission consisting of the following, namely:––

a. the Chief Justice of India, Chairperson, ex officio;

b. two other senior Judges of the Supreme Court next to the Chief Justice

of India: Members, ex officio;

c. The Union Minister in charge of Law and Justice: Member, ex officio;

d. Two eminent persons to be nominated by the committee consisting of
the Prime Minister, the Chief Justice of India and the Leader of Opposition
in the House of the People or where there is no such Leader of Opposition,
then, the Leader of sin- gle largest Opposition Party in the House of the
People.

Provided that one of the eminent person shall be nominated from amongst the
persons belonging to the Scheduled Castes, the Scheduled Tribes, Other
Backward Classes, Mi- norities or Women.
121
Article 124B provides for the function of the commission & Article 124C
provides for the power of the Parliament to make laws in this respect. Idea
behind the National Judicial Appointments Commission was to give a standing
to the executive to say in the appointment and transfer of judges in higher
judiciary and also to provide for accounta- bility and transparency in selection
process. This National Judicial Appointments Commission would have shifted
the supremacy and exclusivity in transfer and appoint- ment, as was established
by judges cases, from the judiciary to the body of 6 members, but was struck
down by the Supreme Court as ultra virus the basic structure.

Numerous writ petitions were filed in the Supreme Court challenging the 99th
Constitu- tional amendment and NJAC Act contending that the two acts are

120
Ibid
121
Ibid

108 | P a g e
violative of basic structure of the Constitution i.e.; the independence of judiciary.

An assessment of the new law introduced to appoint judges argues that it will
make the judiciary subservient to the executive and thus throws a fundamental
challenge to the Constitution and Indian democracy. The long-pending demands
for transparency and accountability of judges and for making the judiciary more
accountable have been for- gotten in these new bills. Even before the ink is dry
on the two bills, petitions have been filed in the Supreme Court challenging their
constitutionality on the ground that they have violated the basic structure of the
Constitution. The petition filed by the Supreme Court Advocates-onRecord
Association states that Parliament does not have the power to change the basic
structure of the Constitution which it has done and hence the gov- ernment
should be restrained from sending the amendment bill to the states for ratifica-
tion. The NJAC Bill is also challenged on the ground that when it was
introduced, Arti- cle 124 and Article 217 were in full force and effect and no
legislation can go contrary to the Constitution. The two bills are therefore a
stillborn law, null and void.

The challenge is a rather unusual one, inasmuch as for the first time a bill is
challenged before it has actually become law. There was a similar challenge to
the bill creating Tel- angana before it became a law and the Supreme Court
rejected the challenge on the ground that only a law could be challenged and not
a bill.

Ironically, during the United Progressive Alliance (UPA) regime, it was Arun
Jaitley who made the point that no law could be made altering Article 124 of the
Constitution without a constitutional amendment first being made but in its haste
to set up a commis- sion, the NDA seems to have forgotten this basic
proposition.

The petition challenging the constitutional amendment states that the two bills
destroy the separation of powers and undermine the independence of the
judiciary. In plain lan- guage, this means that the executive can determine the
composition of the judiciary, making it an institution appointed by the executive.
109 | P a g e
 Given that in our system, laws made by the executive can be challenged in front
of the judiciary, it is imperative that judges are not dependent on the executive
122
for their appointment. On 16th October 2015 the constitution bench of SC by
4:1 majority upheld the collegi- ums system and struck down the NJAC by
Supreme Court Advocates-on-Record- Association and Ors.Vs Union of India
(UOI) case known as Fourth Judges Case.

Doctrine of Revival

When an ordinary statute is repealed, it means that the statute never existed in
the first place. Therefore, when an amendment is struck down it does not revive
the pre- amendment version of the act. However, there are three exceptions to
123
this rule which are collectively known as the “doctrine of revival”.

The first exception is when an act is struck down due to legislative

incompetence. An act is said to lack legislative competence when it is not within
the purview of the consti- tutional framework. In such instances, the amending
act is considered to be “still born” or not to have come into existence.

The second exception is when an act violates fundamental rights under the
Constitution.

The third exception is when an amendment is struck down because it violates the
basic structure of the Constitution. This exception was first seen in the
Keshavananda Bharati case. The Supreme Court held that the Parliament is
barred by Article 368 of the Con- stitution from altering the basic structure and
124
framework of the Constitution . There- fore even if an amendment act violates
the basic structure of the constitution and not just a specific provision, it will be
held to have never come into existence.

The court held that the NJAC violates the basic structure of the Constitution so;
Article 124 as it stood prior to the amendment will be restored. In
Keshavananda Bharati case, it was held that if a constitutional amendment is
invalid, then the pre-amendment provision would revive.

122
Indira Jaising, “NJAC: A Critique”, Economic and Political weekly, August 30, 2014.
123
Retrived from https://blog.ipleaders.in/analysis-of-the-njac-judgement/. Visited on 13 march 2018
124
Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
110 | P a g e
Key Holdings in the Judgment

The key holding of the majority are – First, judicial appointment is the basic
facet of judicial independence which is a part of the basic structure. Second,
judicial primacy during the selection process is also a part of the basic structure.
Third, the collegium allows for executive participation while maintaining
judicial primacy through the colle- gium. Finally, the NJAC violates the basic
structure by doing away with judicial prima- cy through its veto provisions.

The Fourth Judges Case:-

In a shock to the central government, the Supreme Court on 16th October 2015,
in the fourth Judges Case Supreme Court Advocates-on-Record-Association
and Ors.Vs Un- ion of India (UOI) [10] struck down the constitution's 99th
amendment and the NJAC Act as unconstitutional and void, restoring the
collegium system for appointment of judges to the higher judiciary. In a
“collective order”, the constitution bench of Justice Jagdish Singh Khehar,
Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and
Justice Adarsh Kumar Goel said that the constitution's 99th amendment and the
NJAC Act are unconstitutional and void. The constitution amendment and
National Judicial Appointments Commission (NJAC) Act were brought to
replace the 1993 col- legium system evolved after second judges case for the
appointment of judges to the Supreme Court and the high courts. The court said
the system of,
"Appointment of judges to the SC, Chief Justices and judges of the High Courts
and the transfer of Chief Justices and judges of the High Courts that existed
prior to the amendment begins to be operative".

The court sought suggestions from the bar for improved functioning of the
collegium system.

111 | P a g e
Justice Kehar Stated;-
“ I have independently arrived at the conclusion, that clause (c) of Article
124A(1) is ultra vires the provisions of the Constitution, because of the inclusion
of the Union Min- ister in charge of Law and Justice as an ex officio Member of
the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the
principles of “independence of the judi- ciary”, as well as, “separation of
powers”. It has also been concluded by me, that clause (d) of Article 124A(1)
which provides for the inclusion of two “eminent persons” as Members of the
NJAC is ultra vires the provisions of the Constitution, for a variety of reasons.
The same has also been held as violative of the “basic structure” of the Con-
stitution.”

Justice Joseph
Ku- rien in his
judgment
started out with
the Latin
maxim:

“Entia Non
Sunt Mul-
tiplicanda Sine
Neces- sitate
(Things should
not be
multiplied with-
out necessity)”.
Com-
plimenting his
brother
judges‟ “masterpiece” judgments, he wrote a very short judgment “leavning all
legal jargons and using a language of the common man, the core issue before us
is validity of the constitituion 99th amendment”, holding: Direct participation of
112 | P a g e
the executive or other non-judical elements would ultimately lead to structured
bargaining in appointment, if not, anything worse. Any attempt by diluting the
basic structure to create a committed judiciary, however remote be the
possibility, is to be nipped in the bud.”

According to Justice Roberts, “Court has no power to gerrymander the

Constitution. Contextually, I would say, the Parliament has no power to
gerrymander the Constitution. The Constitution 99th amendment impairs the
structural distribution of powers and hence it is impermissible.”

It is indisputable that judicial independence, based on the principle of separation

of powers, is part of the Indian Constitution‟s basic structure. However, the
majority judgment in the NJAC case has wrongly interpreted judicial
independence to mean pri- macy in appointments.

In the aftermath of the Supreme Court‟s verdict that invalidated the 99th
Constitution Amendment, rendering nugatory the National Judicial
Appointments Commission (NJAC), a popular narrative has entered our
conscience that the commission is not a credible alternative to the Supreme
Court‟s „collegium. But such ideas, for all their ap- parent forcefulness, ought to
be extraneous to any proper debate on the legitimacy of the Supreme Court‟s
ruling .What we must really consider in analysing this verdict is not our
respective concerns about what makes for good policy, but rather, what
interpreta- tion would ensure the greatest conformity to the Constitution‟s text,
to the intention of its framers and to the document‟s finest aspirations.
When viewed thus, the majority judgment in this case is profoundly
unsatisfactory. The verdict upholds an extra-constitutional forum, created by the
Supreme Court‟s own members to serve its own ends, in the place of a system
lawfully enacted by a popularly elected Parliament.

What’s more, the judgment fails to adequately answer the fundamental question
at the root of the controversy: how is judicial primacy in making appointments to
the higher judiciary a part of our Constitution’s basic structure?

113 | P a g e
Consequently, the decision acquires an entirely political character. It is subsumed
not by constitutionalism but by an anti-democratic temper. Declaring that the
judiciary cannot risk being caught in a “web of indebtedness” towards the
government, the Supreme Court rejected the National Judicial Appointments
Commission (NJAC) Act and the 99th Constitutional Amendment which sought to
give politicians and civil society a fi- nal say in the appointment of judges to the
125
highest courts .

Finally on October 16, 2015 a Constitutional bench of Supreme Court by

majority of 4:1 set aside the NJAC Act along with Constitution (99th
Amendment) Act.

125
http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-
system/article7769266.ece retrieved on 25 April2017
114 | P a g e
 CHAPTER 6

JUDGMENT ANALYSIS

115 | P a g e
The centripetal force, in the 1030 page decision of the Constitution bench of the
Su- preme Court, is undoubtedly the independence of judiciary. Without
independence of judiciary, no meaningful democracy can sustain. This in effect
is the central theme of the judgment which determined the constitutional validity
of the 99th Amendment, 2014 and the National Judicial Appointments
Commission Act, 2014.

Apparently a great many people have forgotten that the framers of our
constitution went to such great effort to create an independent judicial
branch that would not be subject to retaliation by either the executive
branch or the legislative branch because of some decision made by those
judges:

-by Sandra Day

O’Connor

These enactments were attacked on the ground that it constituted the very
negation of independence of the judiciary. For the government it was perceived
as a move towards a transparent and accountable appointments process. No
amount of gloss, by the gov- ernment or its spokesmen, could cover up the fact
that both the Acts in effect seriously eroded judicial independence and sought to
bring back political sanction and patronage

116 | P a g e
117 | P a g e
 to judicial appointments. In an extraordinary bout of candour, the former law
Minister H.R.Bharadwaj, on being questioned whether politicians were trying to
control the ju- diciary; his answer was an affirmative yes. “Is there any doubt
about it? They have al- ways been making attempts. I can show you examples of
chief ministers and ministers trying to influence appointment of judges because
they land in trouble very frequently” and be added “They want to have a
convenient judiciary. But is it in national interest if you appoint convenient
126
judges? ”

VIEWS OF JUDGES ON DIFFERENT ISSUES

On question of reconsideration of the second and third judges’ cases

J.S. KHEHAR J.

This Court on no less than five occasions has examined the controversy which
we are presently dealing with, through Constitution Benches. In the Samsher
Singh case, it was concluded, that in all conceivable cases, consultation with the
highest dignitary in the Indian judiciary – the Chief Justice of India, will and
should be accepted by the Gov- ernment of India, in matters relatable to the
Chapters and Parts of the Constitution re- ferred to above. In case, it was not so
accepted, the Court would have an opportunity to examine, whether any other
extraneous circumstances had entered into the verdict of the concerned Minister
or the Council of Ministers (headed by the Prime Minister), whose views had
prevailed in ignoring the counsel given by the Chief Justice of India. This Court
accordingly concluded that in practice, the last word must belong to the Chief
Justice of India... It is therefore apparent, that the judiciary would have primacy
in mat- ters regulated by Articles 124, 217 and 222, was conceded, by the Union
127
of India, in the Third Judges case.

KURIAN JOSEPH J. also observed “...Once this Court has addressed an issue

126
Santosh Pau l (ed.), Appointing our Judges: Forging Independence and Accountability 230, Lex-
isNexis, 2016.
127
Supreme Court Advocates-on-record Association and another v. Union of India Writ Petition
(C) No. 14 of 2015 page 129-130

118 | P a g e
on a substantial question of law as to the structure of the Constitution and has
laid down the law, a request for revisit shall not be welcomed unless it is
shown that the structural in- terpretation is palpably erroneous. None before us
could blur the graphic picture on the scheme of appointment of Judges and its
solid structural base in the Constitution por- trayed in the Second Judges Case.
This Bench is bound by the ratio that independence of judiciary is part of the
basic structure of Constitution and that the appointment of Judges to the High
Courts and the Supreme Court is an integral part of the concept of independence
of judiciary. And for that simple reason, the Constitution 99th Amend- ment is
bound to be declared unconstitutional and I do so. Thus, I wholly agree with the
view taken by Khehar, Lokur and Goel, JJ., that the amendment is
unconstitutional and I respectfully disagree with the view taken by
Chelameswar, J. in that regard. Since it is being held by the majority that the
amendment itself is bad, there is no point in dealing with the validity of the
creature of the amendment, viz., the National Judicial Appointments
Commission Act, 2014. It does not exist under law. Why then write the
horoscope of a stillborn child!

On the view of Dr. Ambedkar that in the matter of appointments, the

independ- ence of judiciary was an integral part

J.S. KHEHAR J. observed “...before dwelling upon the issue, which strictly
pertained to the appointments of the judges, Dr. Ambedkar expressed in
unequivocal terms, that the unanimous of the Constituent Assembly was that
“our judiciary must be independ- ent of the executive”.

Finally, BR Ambedkar said:

“Mr. President, Sir, I would just like to make a few observations in order to
clear the position. Sir, there is no doubt that the House in general, has agreed
that the inde- pendence of the Judiciary from the Executive should be made
as clear and definite as we could make it by law. At the same time, there is
119 | P a g e
 the fear that in the name of the independence of the Judiciary, we might be
creating, what my Friend Mr. T.T. Krishnamachari very aptly called an
"Imperium in Imperio". We do not want to cre- ate an Imperium in Imperio,
and at the same time we want to give the Judiciary ample independence so
that it can act without fear or favour of the Executive. My friends, if they
will carefully examine the provisions of the new amendment which I have
proposed in place of the original article 122, will find that the new article
pro- poses to steer a middle course. It refuses to create an Imperium in
Imperio, and I think it gives the Judiciary as much independence as is
128
necessary for the purpose of administering justice without fear or favour. ”

MADAN B. LOKUR J. observed “...Dr. Ambedkar was quite clear that there
could be no difference of opinion that the judiciary should be independent of
the executive, yet competent. He was of the view that it would be ‘dangerous’
to leave the appointment of judges to the President without any reservation or
limitation, that is to say, merely on the advice of the executive of the day...” “If
this dichotomy between the role of the President and the executive and the
binding or non-binding effect of the advice of the executive on the President is
appreciated, the views of Dr. Ambedkar become very clear. He was quite clear
that the executive was not to have primacy in the appointment process nor did
he want the President to have unfettered discretion to accept or reject the advice
of the executive or act on his/her own. As far as the concurrence of the Leg-
islature is concerned, Dr. Ambedkar felt that the process would be cumbrous
with the possibility of political pressure and considerations. It is in this context
that Dr. Ambedkar said that he was steering a middle course and was not
prepared to grant a veto to the President in the appointment of judges, executive
primacy having already been rejected by him. Under the circumstances, he felt
that ‘this sort of provision [con- sultation with the Chief Justice of India] may
be regarded as sufficient for the mo- ment.’
With regard to the ‘concurrence’ of the Chief Justice of India (as against
consultation with the Chief Justice of India) in the appointment of a judge of the
Supreme Court, Dr. Ambedkar was of the opinion that the Chief Justice, despite

128
Id at 84
120 | P a g e
 his eminence, had all the failings, sentiments and prejudices of common people
and to confer on him a pow- er of veto, which is not vested in the President or
the Government of the day (that is the executive), would be a ‘dangerous
proposition’. Dr. Ambedkar was of the view that neither the President nor the
Government of the day (the executive) nor the Chief Justice of India should
have the final word in the matter of the appointment of judges. Who then would
have the final say in the event of a difference of opinion between the President,
the Government of the day or the Chief Justice of India on the appointment of a
particular person as a judge? Dr. Ambedkar did not directly address this
question since he did not visualize a stalemate arising in this regard129.

On executive’s presence in the NJAC

J.S. KHEHAR J. observed “...Since the executive has a major stake, in a

majority of cases, which arise for consideration before the higher judiciary, the
participation of the Union Minister in charge of Law and Justice, as an ex officio
Member of the NJAC, would be clearly questionable. The plea of conflict of
interest would be available against the executive, if it has a participatory role in
the final selection and appointment of Judges, who are then to sit in judgment
130
over matters, wherever the executive is an essential and mandatory party...”

On the presence of the Law Minister in the NJAC, KHEHAR J. observed “...In
the NJAC, the Union Minister in charge of Law and Justice would be a party to
all final se- lections and appointments of Judges to the higher judiciary. It may
be difficult for Judg- es approved by the NJAC, to resist a plea of conflict of
interest (if such a plea was to be raised, and pressed), where the political-
executive is a party to the lis. The above, would have the inevitable effect of
undermining the “independence of the judiciary”, even where such a plea is
repulsed. Therefore, the role assigned to the political-executive, can at best be
limited to a collaborative participation, excluding any role in the final deter-
mination. Therefore, merely the participation of the Union Minister in charge of
Law and Justice, in the final process of selection, as an ex officio Member of the

129
Id at 620-622
130
Id at 367-368
121 | P a g e
 NJAC, would render the amended provision of Article 124A(1)(c) as ultra vires
the Constitu- tion, as it impinges on the principles of “independence of the
judiciary” and “separation of powers”.131

MADAN B. LOKUR J. observed...Post Independence till the early 1990s; the

judiciary saw the slow but sure interference of the executive in the appointment
of judges. This was in the form of the executive recommending persons to the
Chief Justice of the High Court for appointment as a judge of the High Court.
There were occasions when the ex- ecutive completely by-passed the Chief
Justice of the High Court and directly recom- mended persons to the Union
Government for appointment as judges. The third strata- gem adopted by the
executive was to withhold recommendations made by the Chief Jus- tice and
instead forward its own recommendation to the Union Government. The fourth
method was to reopen approved recommendations on some pretext or the other.
The fifth method was to delay processing a recommendation made by the Chief
132
Justice.

Regarding law Minister he said “...It must be realized and appreciated that the
tectonic shift in several countries towards constituting a judicial appointment
commission is tak- ing place only to ensure that the executive does not have a
role in the appointment of judges. The learned Attorney-General supported the
shift but if the trend is to be taken seriously, the Law Minister can have no place
in any commission or, as in the present case, in the NJAC. Therefore, while the
99th Constitution Amendment Act and the NJAC Act attempt to set up a body
intended to be independent of the executive, the NJAC that has been set up has
an important member of the political executive as a part of this body, which is
133
rather anachronistic...”

On the eminent persons

J.S. KHEHAR J. observed, it is also difficult to appreciate the wisdom of the

131
Id at 369

132
Id at 644
133
Id at 862
122 | P a g e
parlia- ment, to introduce two lay persons, in the process of selection and
appointment of Judg- es to the higher judiciary, and to simultaneously vest with
them a power of veto. The second proviso under Section 5(2), and Section 6(6) of
the NJAC Act, clearly mandate, that a person nominated to be considered for
appointment as a Judge of the Supreme Court, and persons being considered for
appointment as Chief Justices and Judges of High Courts, cannot be appointed, if
any two Members of the NJAC do not agree to the proposal. In the scheme of the
selection process of Judges to the higher judiciary, contemplated under the
impugned constitutional amendment read with the NJAC Act, the two “eminent
persons” are sufficiently empowered to reject all recommendations, just by
themselves. Not just that, the two “eminent persons” would also have the absolute
authority to reject all names unanimously approved by the remaining four
Members of the NJAC. That would obviously include the power to reject, the
unanimous recom- mendation of the entire judicial component of the NJAC. In our
considered view, the vesting of such authority in the “eminent persons”, is clearly
unsustainable, in the scheme of “independence of the judiciary”.

Again observed, having examined the issue with the assistance of the most
learned and eminent counsel, it is imperative to conclude, that the issue of
description of the qualifi- cations (perhaps, also the disqualifications) of
“eminent persons” is of utmost im- portance and cannot be left to the free will
and choice of the nominating authorities, ir- respective of the high constitutional
positions held by them. Specially so, because the two “eminent persons”
comprise of 1/3rd strength of the NJAC, and double that of the politicalexecutive
component, and as such, will have a supremely important role in the decision
making process of the NJAC. We are therefore persuaded to accept, that Arti- cle
124A(1)(d) is liable to be set aside and struck down, for having not laid down
the qualifications of eligibility for being nominated as “eminent persons”, and
134
for having left the same vague and undefined.

MADAN B. LOKUR J. observed “...The real cause for unhappiness is the

second pro- viso to Section 5(2) of the NJAC Act which effectively confers a

134
Id at 380-382.
123 | P a g e
 veto on each member of the NJAC. What is objectionable about the veto (a part
of the package deal referred to by the learned Attorney-General) is that it can
also be exercised by two eminent per- sons whose participation in the
appointment process was not even imagined by the Con- stituent Assembly.
Article 124(2) of the Constitution (prior to its amendment) had only two
constitutional authorities involved in the appointment process – the President and
the Chief Justice of India. The 99th Constitution Amendment Act has introduced
a third and a previously non-constitutional ‘authority’ namely an eminent person.
Two eminent persons who had no role to play in the appointment process prior
to the 99th Constitution Amendment Act have suddenly assumed Kafkaesque
proportions and together they can paralyze the appointment process, reducing the
President and the Chief Justice of India to ciphers for reasons that might have
nothing to do with the judicial potential or fitness and suitability of a person
135
considered for appointment as a judge...”
On Independence of Judiciary

MADAN B. LOKUR J. observed, this discussion in the historical perspective

indicates that the appointment of judges plays a crucial and critical role in the
independence of the judiciary in the real sense of the term. If judges can be
influenced by political con- siderations and other extraneous factors, the
judiciary cannot remain independent only by securing the salary, allowances and
conditions of service and pension of such judges. The meat lies in the calibre of
136
the judges and not their perks.

A.K. GOEL J. observed that, the judiciary has been assigned the role of
determining powers of every Constitutional organ as also the rights of
individuals. The disputes may arise between the Government of India and the
States, between a citizen and the State or between a citizen and a citizen.
Disputes relating to the powers of Union Legislature and the State Legislature or
the exercise of the executive power may involve issues of constitutionality or
legality. It may involve allegations of mala fides even against high- est
constitutional dignitaries. This requires an impartial and independent judiciary.
135
Id at 857-858.
136
Id at 644
124 | P a g e
The judiciary is required to be separate from the executive control. Judiciary has
to inspire confidence of the people for its impartiality and competence. It has not
been disputed by learned Attorney General that independence of judiciary is part
of the basic structure. It is also undisputed that judicial review is part of basic
structure. The decisions of this Court expressly lay down that independence of
judiciary and judicial review are part of basic structure. Broad separation of
powers between the three departments of the State is a part of doctrine of checks
and balances. It is also a part of democracy. Independence of judiciary is
integral to the entire scheme of the Constitution without which neither

primacy of the Constitution nor Federal character, Social Democracy nor

137
rights of equality and liberty be effective.

137
Id at 960-961

125 | P a g e
On the challenges for the collegiums

KURIAN JOSEPH J. observed “...All told, all was and is not well. To that
extent, I agree with Chelameswar, J. that the present Collegium system lacks
transparency, ac- countability and objectivity. The trust deficit has affected the
credibility of the Collegi- um system, as sometimes observed by the civic
society. Quite often, very serious allega- tions and many a time not unfounded
too, have been raised that its approach has been highly subjective. Deserving
persons have been ignored wholly for subjective reasons, social and other
national realities were overlooked, certain appointments were purposely delayed
so as either to benefit vested choices or to deny such benefits to the less patron-
ised, selection of patronised or favoured persons were made in blatant violation
of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial
attitude of the Collegium seriously affecting the selfrespect and dignity, if not,
independence of Judg- es, the court, particularly the Supreme Court, often being
styled as the Court of the Col- legium, the looking forward syndrome affecting
impartial assessment, etc., have been some of the other allegations in the air for
quite some time. These allegations certainly call for a deep introspection as to
whether the institutional trusteeship has kept up the expectations of the framers
of the Constitution. Though one would not like to go into a detailed analysis of
the reasons, I feel that it is not the trusteeship that failed, but the frailties of the
trustees and the collaborators which failed the system. To me, it is a cur- able
138
situation yet.

A.K. GOEL J. observed “...At this stage, it may be mentioned that any
perceived short- coming in the working of existing mechanism of appointment
of judges cannot by itself justify alteration or damage of the existing scheme
once it is held to be part of basic fea- ture... even a good system may have
shortcomings in its working on account of individ- ual failures. It may be
mentioned that criticism of working may be levelled against working of every
organ of the Constitution including the Executive and the Legislature and while

138
Id at 922-923

126 | P a g e
 all efforts must be continuously made to bring about improvemrnt in every
sphere, scheme set up by the Constitution cannot be given a go bye on that
ground. It is not necessary to comment upon how good or bad any constitutional
authorities have performed in discharge of their duties or how good or bad the
judiciary has performed, as the limited question for consideration of the Court is
to identify and retain the basic structure of the Constitution in appointment of
judges. The improvement in working of existing system of appointment of
judges can be the subject matter of sepa- rate consideration which is being
proposed but certainly without giving a go bye to the basic features of the
Constitution of independence of judiciary.

139
In Manoj Narula vs. Union of India , question considered was how persons with
crim- inal antecedents could be prevented from being appointed as Ministers.
There was also reference to the concern as to how persons with such antecedents
could be prevented from being legislators. This Court held that the issue has to
be dealt with by those to whom the Constitution has entrusted the responsibility
140
and this Court could only en- force the constitutional scheme.

Conclusion of Constitutionality

On conclusion of Constitutionality J.S. KHEHAR J. observed “...We have

already con- cluded earlier, that the participation of the Union Minister in charge
of Law and Justice, as a Member of the NJAC, as contemplated under Article
124A (1), in the matter of ap- pointment of Judges to the higher judiciary, would
breach the concepts of “separation of powers” and the “independence of the
judiciary”, which are both undisputedly compo- nents of the “basic structure” of
the Constitution of India. For exactly the same reasons, we are of the view, that
Section 8 of the NJAC Act which provides, that the Secretary to the Government
of India, in the Department of Justice, would be the convener of the NJAC, is not
sustainable in law. In a body like the NJAC, the administrative functioning
cannot be under executive or legislative control. The only remaining alternative
is to vest the administrative control of such a body, with the judiciary. For the

139
2014 (9) SCC 1
140
Id at 990-991.
127 | P a g e
 above reasons, Section 8 of the NJAC Act would likewise be unsustainable in
141
law.

A.K. GOEL J. observed that the impugned Amendment and the Act are struck
down as unconstitutional. Pre-existing scheme of appointment of judges stands
revived. The matter be listed for consideration of the surviving issue of
142
grievances as to working of pre-existing system.

MADAN B. LOKUR J. observed that in my opinion, the Constitution (Ninety-

ninth Amendment) Act, 2014 (for short the 99th Constitution Amendment Act)
alters the basic structure of the Constitution by introducing substantive changes
in the appoint- ment of judges to the Supreme Court and the High Courts and
rewriting Article 124(2) and Article 217(1) of the Constitution, thereby seriously
compromising the independ- ence of the judiciary. Consequently, the 99th
Constitution Amendment Act is unconstitu- tional. Since the 99th Constitution
Amendment Act is unconstitutional, the National Ju- dicial Appointments
Commission Act, 2014 (for short the NJAC Act) which is the child of the 99th
Constitution Amendment Act cannot independently survive on the statute books.
Even otherwise, it violates Article 14 of the Constitution by enabling substantive
arbitrariness in the appointment of judges to the Supreme Court and the High
143
Courts.

DISSENTING VIEW OF JASTI CHELAMESWAR J.

On possibility of abuse of power

Chelameswar J. observed “...In the final analysis, all power could be misused
including judicial power. The remedy is not to deny grant of power but to
structure it so as to eliminate the potential for abuse. The power to nominate two
eminent persons is con- ferred upon three high constitutional functionaries – the
Prime Minister, the Leader of the Opposition and the CJI. It is elementary

141
Id at 431.

142
Id at 1025.
143
Id at 591.

128 | P a g e
 political knowledge that the Prime Minister and the Leader of Opposition would
always have conflicting political interests and would rarely agree upon any issue.
Nonetheless, possibility of a bipartisan compromise cannot be ruled out. Though,
the presence of CJI in the Committee should normally be a strong deterrent, the
possibility of the CJI failing to perceive a political compromise or helplessness
144
in the event of such compromise cannot be ruled out...”

On Eminent persons

It is incontestable that nomination of eminent persons is not immune to judicial

review. There is thus possibility of delay in functioning of NJAC and inevitably
the process of appointments to CONSTITUTIONALCOURTS.

It is, therefore, essential that there must be an entrenched process of nomination

of emi- nent persons which eliminates risk of possible bipartisan compromises.
The only con- ceivable curative is to incorporate another tier of scrutiny in the
process of nomination. In my considered view, the following safeguard would
bring this process within permis- sible contours of the basic feature
simultaneously eliminating the ‘delay factor’. The Committee contemplated
under Article 124- A(1)(a) should prepare a panel of three members for each of
the two categories of the nominees (for eminent persons) – in all a panel of six
persons. Such panel should be placed before the full house of the Supreme Court
for voting. Nominees securing the highest vote in each of the two categories
should eventually be nominated as eminent members of the NJAC. Such
procedure would still preserve the choice of eminent persons primarily with the
Committee con- templated under Article 124- A, while incorporating sufficient
145
safeguard against possi- ble abuse of the power by the Committee.

On veto power vested in two members

The question whether the content of Section 6(6) confers a power of veto or

144
Id at 572.
145
Id at 572-573.

129 | P a g e
prescribe a special majority is only of semantic relevance. Whatever name we
call it, the result is the same. The two member of the NJAC can override the
opinion of the other four and shall the recommendation. I do not find anything
inherently illegal about such a prescription. For the purpose of the present case, I
do not even want to embark upon an enquiry whether the constitutional
fascination for the basic structure doctrine be made a Trojan horse to penetrate
the entire legislative camp. For my part, I would like to examine the question in
greater detail before answering the question. There are conflicting views of this
Court on this proposition.197 In my opinion, such an enquiry is not required in
this case in view of the majority decision that the AMENDMENT is
unsustainable. Some of the learned counsel for the petitioners placed reliance on
S.R. Bommai case as a justifi- cation for the invocation of the doctrine of basic
146
structure.

On failure of collegium system

The fiasco created in P.D. Dinakaran case and Shanti Bhushan case would
justify the participation of the members of the civil society in the process to
eliminate from the se- lection process the maladies involved in the process
pointed out by Ruma Pal, J. The abovementioned two are not the only cases
where the system failed. It is a matter of public record that in the last 20 years,
after the advent of the collegium system, number of recommendations made by
the collegia of High Courts came to be rejected by the collegium of the Supreme
Court. There are also cases where the collegium of this Court quickly retraced its
steps having rejected the recommendations of a particular name made by the
High Court collegium giving scope for a great deal of speculation as to the
factors which must have weighed with the collegium to make such a quick volte
face. Such decisions may be justified in some cases and may not in other cases.
There is no accountability in this regard. The records are absolutely beyond the
reach of any person including the judges of this Court who are not lucky enough
to become the Chief Justice of India. Such a state of affairs does not either

146
Id at 579-580.
130 | P a g e
 147
enhance the credibility of the institution or good for the people of this country.

On Independence of judiciary

Only an independent and efficient judicial system can create confidence in the
society which it serves. The ever increasing pendency of matters before various
CONSTITU- TIONAL COURTS of this country is clearly not a certificate of
efficiency. The fre- quency with which the residuary jurisdiction of this Court
under Article 136 is invoked seeking correction of errors committed by the High
Courts, some of which are trivial and some profound coupled with bewildering
number of conflicting decisions rendered by the various benches of this Court
only indicate that a comprehensive reform of the system is overdue. Selection
process of the Judges to the CONSTITUTIONAL COURTS is only one of the
aspects of such reforms. An attempt in that direction, unfor- tunately, failed to
secure the approval of this Court leaving this Court with the sole re- sponsibility
and exclusive accountability of the efficiency of the legal system. I only part
with this case recollecting the words of Macaulay –“reform that you may pre-
serve”. Future alone can tell whether I am rightly reminded of those words or
148
not.

Independence of such for a rests on two integers - independence of the

institution and of individuals who man the institution.

“(Judicial independence) connotes not merely a state of mind or attitude in

the ac- tual exercise of judicial functions, but a status or relationship to
others, particular- ly to the executive branch of government that rests on
objective conditions or guarantees. It is generally agreed that judicial
independence involves both indi- vidual and institutional relationships: the
individual independence of a judge, as reflected in such matters as security
of tenure, and the institutional independence of the court or tribunal over
which he or she presides, as reflected in its institu- tional or administrative

147
Id at 582-583.
148
Id at 583-584.
131 | P a g e
 relationships to the executive and legislative branches of Government.”

On primacy of judiciary in the appointments process

Primacy of the opinion of judiciary in the matter of judicial appointments is not

the only means for the establishment of an independent and efficient judiciary.
There is abun- dance of opinion (in discerning and responsible quarters of the
civil society in the legal fraternity, jurists, political theorists and scholars) that
primacy to the opinion of judiciary is not a normative or constitutional
fundamental form establishment of an independ- ent and efficient judiciary. Such
an assumption has been proved to be of doubtful accu- racy. It is Parliament’s
asserted assumption that induction of civil society representation will bring
about critically desirable transparency, commitment and participation of the
ultimate stakeholders–the people. The fountain of all constitutional authority, to
ensure appointment of the most suitable persons with due regard to legitimate
aspirations of the several competing interests. Various democratic societies have
and are experimenting with models involving association of civil society
representation in such selection pro- cess. Assessment of the product of such
experiments are however inconclusive. The question is not whether the model
conceived by the AMENDMENT would yield a more independent and efficient
judiciary. The question is whether Parliament’s wisdom and authority to
undertake such an experiment by resort to constituent power is subject to curial
149
audit.

On veto power

The respondents submitted that Section 6(6) of the ACT only prescribes a special
ma- jority for sanctifying the recommendations of NJAC. Prescription of special
majorities in law is a known phenomenon. The Constitution itself prescribes
special majorities in certain cases. For example, Article 368(2) prescribes a
special majority for amending the Constitution. Similarly, Article 124(4)
prescribes a special majority for the im- peachment of judges of the
CONSTITUTIONAL COURTS. It is argued that the peti- tioners’ presumption

149
Id at 560-561
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 that only Government could take advantage of the prescription un- der Section 6(6)
is totally baseless. In a given case it may happen that two judicial members of the
NJAC can turn down the proposal of the NJAC. Learned Attorney Gen- eral also
submitted that such a prescription of a special majority is also a part of the re- gime
created under Second Judges Case and, therefore, there is nothing constitutionally
objectionable in such a prescription.150

Upholding the constitutional validity

For all the above mentioned reasons, I would upheld the AMENDMENT.
However, in view of the majority decision, I do not see any useful purpose in
151
examining the constitutionality of the ACT.

LATER DEVELOPMENTS

Report A report was filed by Ms. Pinky Anand and Arvind P. Datar, Senior
Advocate on the various suggestions that could be taken up for the modification
of the Collegium system. The various suggestions were based on five categories
being which were

a. Transparency
b. Eligibility
c. Secretariat
d. Complaints
152
e. Miscellaneous

a. Transparency: The different proposals at a general level depended on having

the best possible criteria which should allude to the age, merit, position,
uprightness, salary criteria, scholarly capabilities which ought to be
effortlessly accessible on the Supreme Court and High Court sites. Other

150
Id at 578-579
151
Id at 583.
152
Anand. P., Datar. A.,Neo Colleguim Suggestions filed in Supreme Court. Retrieved at:
http://s3.documentcloud.org/documents/2505344/pinky-anand-arvind-datar-njac-collegium.pdf
133 | P a g e
pertinent data about the chose candidate ought to be available in spite of the fact that
the straightforwardness to a great level acts to be counterproductive and should
hamper the choice making. Subsequently, an appropriate adjustment should be struck
in the middle of transparency and secre- cy. The Proper system talks around a three
stage process that involves the proposal and arrangement of the Judges through a
consultative and participatory activity. An IB report ought to be sent by the High
153
Court collegium to the Supreme Court and the names cleared ought to be sent to SC.

b. Eligibility: Different criteria identified with the qualification of the Judges

from the High court to the Supreme Court ought to be such that: It expressed
that the Chief Justices ought to be hoisted as well as alternate applicants of
legitimacy ought to ad- ditionally be considered. All the High Court judges
who have finished five years ought to be viewed as qualified and the three
senior most judges of the High Court ought to be qualified. 10% of the
Supreme Court Judges ought to be from the bar. There was likewise a
154
154
proposal of directing a written exam for the rise to Supreme Court.

c. Secretariat: The Union of India recommended the foundation of the

Secretariat in the Supreme Court and every High Court to guarantee effective
determination of judges which will be about the Members of the Bar and
regional Court Judges who are delegated to a High Court. For the current
judges to be delegated, legitimate data might gathered in light of the quantity
of judgments conveyed, landmark cases, It ought to be totally autonomous of
the official and it ought to have same status as that of the Supreme Court
Registry.155

d. Complaints: The names of the candidates should be unveiled to people in

general 30 days before the thought by the collegium and the general
population must keep in touch with the Committee about the objections and
the grievances. This would apply both for the High Court and the Supreme
Court. At the point when the protestation is made, the individual ought to be

153
Ibid. at 20 para 6 pp.3
154
Ibid. at 20 para 7 pp. 5
155
Ibid. at 20 para 8 pp. 8
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 e. given a chance to give a clarification. The exam- ination should be by the
board of resigned judges.156

f. Miscellaneous: The Union of India proposed that the exchange ought to be

just on the record of the administrative exigencies, irreconcilable
circumstance with rela- tives rehearsing at the Bar or at the solicitation of the
concerned judges. Adherence to the idea of transfers not being punitive
likewise needs to be considered amid the transfers. A legitimate record of the
data identified with the transfers should be kept.
A proposal to incorporate more number of female judges was delivered as
157
the num- ber of the female judges is low in the High Courts.

Merits of the Collegium System

a. The major benefit given by this system to our country is to protect

and safeguard the separation of powers between the three organs of
our Government, which is the basic structure of the Constitution. It
ensures that the independent nature of the judiciary is not affected
by the Legislature or the Executive.
b. Problem in implementation: NJAC’s issues relating to composition
are a trouble both in principle and practice.
c. NJAC will also assess if candidate is fit to hold office - The
criterion based on which the fitness will be declared is questionable
and vague
d. Appointments remain a secret - While talking about transparency,
the shortlist- ing of candidates and their selection as well as veto for
the same is to be done in secrecy as per the NJAC bill. This defeats
the very purpose of the bill.
e. Reservations over the role of governor - There are also concerns
over whether the governor will act as per his discretion or the CM
for appointing judges as part of NJAC

156
Ibid. at 20 para 9 pp. 10
157
Ibid. at 20para 10 pp. 11
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 f. Non judicial members join the fray: Veto by non-judicial members
can override the majoritarian decision whereby appointment of CJI
and 2 senior judge can be overwritten

g. Non participation of wider civil society - Even the “eminent

persons” are not chosen unanimously but amongst the Prime
Minister, CJI and leader of the Op- position in Lok Sabha.
h. Prevents judicial politicisation: The politicisation of the judiciary
through NJAC is circumvented by the collegium system
i. Judiciary retains autonomy- the senior judge know better about the
talent in the field of judiciary rather than the executive and the SC
retain autonomy through the collegium system Justice Sathasivam is of
the opinion that the Collegium System has become a little more
transparent and the consultation is made to be broad – based, as a result
158
it will be best suited for the appointment of the judges.

He also said that, “we as judges know the capability and character of the persons
who are considered for appointment as judges to the Supreme Court and high
courts”. This statement by him makes it clear that it would become difficult for
people who are not Assitantd with the daily work of courts to shortlist the best
people for the required posi- tion. On comparing to the Judicial Appointment
Commission (JAC), the current Colle- gium System scrutinizes the shortlisted
candidates more accurately for the qualities ex- pected of a judge in the Supreme
Court or the High Court.

Criticism in the Collegium System:

1. It is non-transparent system without any official mechanism or secretariat

law- fully enacted by the Parliament.

2. There is no provision regarding the collegium system or such a body in

the Con- stitution.

3. It lays down no prescribed norms regarding eligibility criteria or even the

selec- tion procedure.

158
/3www.insightsonindia.com/2015/02/27-
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 4. No information regarding its meetings, procedures and methods is there
in the public domain.

5. Lawyers also suffer from lack of knowledge whether their names have
been con- sidered for elevation as a judge.

6. It is a system where the members of the judiciary are serving their own
ends.

7. Judicial primacy in making appointments is not a part of the basic structure.

8. This method gives excess powers to the judiciary and does not give
genuine broad minded lay persons to be a part of the process of selection.

Suggestions to reform the Collegium system:-

Appointment of Judges is a cardinal process in a democratic country like India

and it should be done with utmost care and caution. Executive interference came
to an end and the collegium is the only alternative left after fourth Judges case.
But now, even the col- legium is also under several allegations and people are
continuously raising questions over the working process of collegium.
Collegium has been blamed of not being trans- parent and accountable and
corruption charges have been levied.

As we had seen that four judges from the Supreme Court came in public through
the medium of media to talk about the dispute which is going on within the
Supreme Court regarding allotment of cases and transfer of judges from one high
court to another. This shows that there is need to improve the collegium system
otherwise it will make chaos within the judiciary.

Therefore, throughout this study I would like to put some suggestion for
improvement of present case. These are:
1. After the struck down of the NJAC it should be the responsibility of the
Gov- ernment to provide new paramount for healthy relationship between
the execu- tive and Judiciary. Give and take relationship should be
developed as soon as possible.
2. The collegium system is not bad but it is some time subject to doubtful.
137 | P a g e
3. Its ob- ject should to select best person based on legal merit and ability
for the higher Judiciary. There should be actual and significant reforms in
the content and op- eration of the collegium system.
4. The framer of the constitution had never indicated to give absolute
discretion to the CJI as angle authority in the matter of appointment. So,
there should remain some power with the executive also to check the
abuse of power whenever nec- essary.
5. Article 124A, as amended, is still fully loaded in favour of the high
judiciary. Three out of the six members are Judges. In that sense it is
failing to meet to be just and democratic. But the Parliament has in its
wisdom enacted so and if there is a complaint, the forum is to generate
public opinion and seek greater democ- racy.
6. Collegium system also suffers from various stigmas such as lack of
accountabil- ity and transparency. This is need of hour to constitute a
body which is inde- pendent of both the executive and Judiciary to
strengthened and not dilute the democratic nature of the country.

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CONCLUSION

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On October 16, 2015 when the NJAC judgment came, it wasn't surprising at all
because it had to come that way and it did come. After going through the cases
of property rights and other cases of amending powers of the parliament, one
could sense that fourth judges' case holds mixed elements of fear and self
defence. Here the nature of self de- fence can be understood to protect the
feature of 'independence of judiciary' behind a protective shield of ‘basic feature’
and this fear can be said to have been derived from infamous incidences like
1975 emergency situation, habeas corpus and judges' transfer case.

In fourth judges' case, the Apex court quashed the NJAC as violative of
'independence of judiciary'. But it would be wrong on our part to judge
Executive, when it came up with the concept of NJAC, as assailant of this
judicial independence, claiming that the judges shouldn't have dominant voice in
judicial appointments and administration.

One of the remarkable aspects of the judgment is the rather innovative and
unconven- tional approach adopted by the court to actually constitute hearings
on the subject as to how to improve the existing collegiums system of
appointments. Much of the criticism of the collegiums system of appointments
was that the outsiders really never knew how these appointments came to be
made, what considerations were taken into account, how the talent was
identified, how character integrity and performance were determined, how and
which agencies were involved in the decision-making process. There were per-
sistently pleas made by the eminent counsel Fali Nariman to lay threadbare the
process in order to the wrong perceptions. The Court inviting suggestions for
improving the col- legiums system is a welcome step toward accountability. This
unprecedented move will only enhance its already high standing

During ruffle for judicial independence and parliamentary supremacy, these

constitu- tional bodies are forgetting that they derive such authorities from
Constitution itself. It is the Constitution which is Sovereign. Our tri-pod of
constitutional functionaries de- rives their powers, functions and authorities from
the Constitution. It is the Constitution which provides that “...President shall
appoint judges after consulting with the Chief Justice of India and other SC and

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HC judges as he considers necessary...” but both the Collegium and the NJAC
overlooked this important institution (President). Neither the Collegium nor the
NJAC cared to mention

the role of President in judges’ appointment and transfer. Therefore, neither of

the two concepts is advisable because if we go with collegiums then there are
chances that ap- pointments of judges may not be transparent and if we choose
NJAC then independence of judiciary will be compromised. There will always
be some element of inherent bias- ness. At last I would only say that, fourth
judges' case was an opportunity which should have utilized to undo this
overlooking of constitution and to reinstate the primacy of President in
appointment and transfer of judges in higher judiciary, but the Apex court
missed that opportunity.

This victory in favour of the judiciary’s independence has also resulted in a far
graver responsibility. The court has to deal with judicial appointments with
accountability. It will now be have to reposition itself to being transparent and
ensuring merit and merit alone is the criteria. The theme that those with
connections alone go to the top of the ladder is dangerous and causes any
institution to be destroyed.

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142 | P a g e
Articles as Reference, Bibliography &

Webliography

143 | P a g e
 ARTICLE TAKEN AS REFERENCE

 Article 14 of the Indian Constitution

 Article 19 (1)(f) of the Indian Constitution
 Article 31(A) of the Indian Constitution
 Article 31(B) of the Indian Constitution
 Article 31(C) of the Indian Constitution
 Article 39 (b) &(c) of the Indian Constitution
 Article 50 of the Indian Constitution
 Article 124 of the Indian Constitution
 Article 136 of the Indian Constitution
 Article 217 of the Indian Constitution
 Article 222 of the Indian Constitution
 Article 368 of the Indian Constitution

144 | P a g e
 BIBLIOGRAPHY

Books :

 Dd.Basu, Shorter Constitution of India, 14th edition 2009, Lexis Nexis,

Butter- wirhts Wadhwa.
 Dr. J.N. Pandey, “Constitutional Law of India”. 44th edn., Central Law
Agency, Allahabad (2007).
 Jain M.P., Indian Constitutional Law, 6th edition 2010, lexisnexis.
 Mahendra P. Singh, “V.N. Shukla’s Constitution of India”, 2010 edn.,
Rep. 2000, Eastern Book Company, Lucknow.
 Nani Palkhivala: The Courtroom Genius, Soli J Sorabji & Arvind P
Datar, 1st
edition, Lexix Nexis, Butterwirhts Wadhwa.

Articles:

 Dr. Dharmendra Kumar Singh and Dr. Amit Singh, “appointment of

judges and overview of collegium system in india: a need to reform”,
Int. J. Adv. Res. 5(6), 900-906, 17 may 2017.
 Dr. Sachchidanand & Bijeta Chetry, Tussle For Control: A Fragility Of
Indian Democracy, pp 322-325, Vol. 4, Issue 7, 2017.
 Ketki tara kumaiyan, “Impact of major amendments on the Indian
polity”, ku- maon university, nainital, 2015.
 Neelakshi Gupta & Debayan Gangopadhyay, “national judicial
appointments commission: an imperium in imperio?”, Vol.2 Issue 3.
 Prerna Tara, judicial appointments with emphasis on india’s njac model,
isbn: 978-605-64453-5-4, 8-10 February 2016- Istanbul, Turkey, pp 558-
568.
 Shiva Kant Jha, suggestions for improving the collegium system, Nov. 14,
2015.

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