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IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association Petitioner

v.

Union of India ... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA

PART II

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Contents

D. INDEPENDENCE OF THE JUDICIARY AND CHECKS AND BALANCES ............ 1

I. Independence of the judiciary forms part of the basic structure and is an

essential feature of the Constitution ..................................................... 1

a. The concept of independence of the judiciary under the Constitution of

India has a wide set of features only one of which is the method of

appointment of judges of the higher judiciary ....................................... 2

b. In no aspect of judicial functioning is judicial independence to be

protected as an absolutist ideal ........................................................ 6

II. Separation of Powers and Checks and Balances also form part of the Basic

Features of the Constitution .............................................................. 16

a. The Constituent Assembly Debates demonstrate the intention of the

framers to ensure checks and balances and prevent unaccountable exercises of

judicial power apart from ensuring judicial independence ....................... 16

b. Separation of Powers is a basic feature of the Constitution which has been

held to include checks and balances .................................................. 16

III. When interpreting a constitutional amendment against the basic structure,

judicial independence, separation of powers and democracy have to be balanced

..26

E. PRIMACY OF THE JUDICIARY IN APPOINTMENT OF JUDGES TO THE SUPREME

COURT AND HIGH COURTS IS NOT A BASIC FEATURE OF THE CONSTITUTION ... 32

I. The Second Judges Case requires reconsideration .............................. 33

II. Assuming it is held that the Second Judges Case does not require

reconsideration, it has no relevance for assessing the constitutional validity of

the 99th Amendment ....................................................................... 36

III. In any event, primacy of the judiciary cannot be a basic feature of the

Constitution ................................................................................. 41

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a. Primacy of the judiciary and the concept of a judicial collegium to

recommend appointment of judges cannot be culled out from the provisions of

the Constitution as originally enacted. ............................................... 41

b. Primacy of the judiciary was a judicially devised method to secure judicial

independence responding to certain pressures on the judiciary at the time ... 45

c. There is no necessary connection between judicial independence and

primacy of judges in appointment .................................................... 52

d. Judicial independence without primacy of the judiciary in appointments

was the express intention of the drafters of the Constitution manifested in the

early working of the Indian higher judiciary ......................................... 55

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D. INDEPENDENCE OF THE JUDICIARY AND CHECKS AND BALANCES

I. Independence of the judiciary forms part of the basic structure and is an

essential feature of the Constitution

1. It is the petitioners contention that the 99th Amendment violates the

independence of the judiciary - a basic feature of the Constitution. To

meet this contention, it is necessary to understand what independence

of the judiciary connotes.

2. Independence of the judiciary has been recognised as a basic feature of

this Constitution. The context in which it is so recognised can be

understood from the extracts of the judgments below.

3. In Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1, Ray CJI held

(at p. 35):

22..The basic feature of separation of powers with the role of independence of Judiciary is changed by denying jurisdiction of this Court to test the validity of the election. The essential feature of democracy will be destroyed if power is conceded to Parliament to declare the elections void according to law under which it has been held to be valid.

4. In the Second Judges case, Pandian J. held (at p. 522):

50.The essence of the above deliberation and discussion is that the independence of judiciary is the livewire of our judicial system and if that wire is snapped, the dooms day of judiciary will not be far off.

Pandian J. also held (at p. 523):

56.Indisputably, this concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a fixed-star in our constitutional constellation and its voice centres around the

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philosophy of the Constitution. The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administration of justice.

Kuldip Singh J. also held (at p. 647):

331.The powers and functioning of the three wings of the Government have been precisely defined and demarcated under the Constitution. Independence of judiciary is the basic feature of the Constitution.

5. In Sub-Committee on Judicial Accountability v. Union of India

(1991) 4 SCC 699, BC Ray J. held (at p. 719):

16.Rule of law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of rule of law.

6. In addition to the above-mentioned cases, the Supreme Court has in a

number of other cases, such as RK Jain v. Union of India and Ors.

(1993) 4 SCC 119; All India Judges Association and Ors. v. Union of

India and Ors. (1993) 4 SCC 288; Jasbir Singh v. State of Punjab

(2006) 8 SCC 294;Central Public Information Officer, Supreme Court

of India v. Subhash Chandra Aggrawal (2011) 1 SCC 496; Union of

India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC

1, identified independence of the judiciary as part of the basic

structure of the Constitution.

a. The concept of independence of the judiciary under the Constitution of

India has a wide set of features only one of which is the method of

appointment of judges of the higher judiciary

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7. There are various enunciations of the independence of the judiciary

and its relevance to the appointments process in the First Judges

case. Bhagwati J. (as he then was) acknowledged in the context of

appointments that the principle of independence of judiciary is a part

of the basic structure of the Constitution. Further, he observed (at p.

222-223):

27.The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective...

8. A contrary view was taken by Venkataramaiah J. in the First Judges

case (at pp. 791 and 793-794):

1033.As a part of this very contention it is urged that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment, It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that, after such appointment the executive should have no scope to interfere with the work of a Judge.

1042.In India we have adopted the procedure contained in Article 217(1) of the Constitution for the appointment of Judges of the High Courts. We do need anything intrinsically wrong in this method. The process of consultation prescribed by Article 217(1) acts as a sufficient safeguard against the appointment of undesirable persona as Judges of the High Courts. Our experience has been that the independence of the judiciary has not in any way been impaired by reason of the president appointing Judges on the advice of his Council of Ministers after following the process of consultation prescribed in Article 217(1).This method appears to have been adopted so that the appointments of Judges may have ultimately the sanction of the people whom the Council of Ministers represent in a

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parliamentary form of Government. In that way only the Judges may be called people's Judges. If the appointments of Judges are to be made on the basis of the recommendations of Judges only then they will be Judges' Judges and such appointments may not fit into the scheme of popular democracy.

9. Explaining the concept of judicial independence, Raveendran J. in

Union of India v. Madras Bar Association (2010) 11 SCC 1 held (at p.

35):

46. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values.

The contours of judicial independence were further laid out by

Raveendran J. as follows:

46. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things - security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the Executive).

10. The independence of the judiciary, as a basic feature is ensured

through a framework of Constitutional provisions, statutes, principles

and practices. Chandrachud J. (as he then was) in Union of India v.

Sankalchand H. Sheth (1977) 4 SCC 193 observed (at p. 216):

13. Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independence of the judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. The form of oath prescribed by clause VIII, Third Schedule of the Constitution for a Judge or a Chief Justice of the High Court requires him to affirm that he will perform the duties of his office without fear or favour, affection or ill will.

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The words without fear or favour were added by the Constitution to the oath prescribed for Judges and Chief Justices of High Courts by the Fourth Schedule, clause 4 of the Government of India Act, 1935. By Article 202(3)(d), expenditure in respect of the salaries and allowances of High Court Judges is charged on the Consolidated Fund of each State. The pensions payable to High Court Judges are charged on the Consolidated Fund of India under Article 112(3)(d)(iii). By virtue of Article 203(1), the, salaries and allowances are not subject to the vote of the Legislative Assembly and, by virtue of Article 113(1), the pensions are not subject to the vote of the Parliament. The High Court Judges, by Article 221(1), are entitled to be paid the salaries which are specified in the Second Schedule to the Constitution. Evidently, such salaries cannot be varied without an amendment of the Constitution. Further, under the proviso to Article 221(2), neither the allowances of a Judge nor his rights in respect of leave of absence or pension can be varied to his disadvantage after his appointment. The relevant part of Article 211 provides that no discussion shall take place in the legislature of a State with respect to the conduct of any Judge of a High Court in the discharge of his duties. Article 215 makes every High Court a Court of record and confers upon it all the powers of such a court including the power to punish for contempt of itself. Judges of the High Court, by Article 217(1), hold their tenure until they attain the age of 62 and not at the pleasure of the President. Appointments of officers and servants of a High Court are to be made under Article 229(1) by the Chief Justice of the High Court or such other Judge or officer of the Court as he may direct. By sub-clause (2) of that article, the conditions of service of officers and servants of a High Court shall, subject to the provisions of any law made by the legislature of the State, be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice. Under clause (3), the administrative expenses of the High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, are to be charged upon the Consolidated Fund of the State.

11. In the context of impeachment, it was held by Ramaswami J. in

Krishna Swami v. Union of India (1992) 4 SCC 605 (at pp. 649-650):

66..Rule of law as basic feature permeates the entire constitutional structure. Independence of the judiciary is sine qua non for the efficacy of the rule of law.....The independence of the judiciary in the scheme is essential to establish real parliamentary democracy and maintenance of rule of law....Independence of judiciary thus constitutes the cornerstone and the foundation on which our democratic polity itself is to rest and work on sound principles.

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12. Post-tenure benefits for judges have also been identified as an aspect

which requires protection to ensure judicial independence. In

Secretary, Ministry of Health and Family Welfare, Government of

Maharashtra v. S.C. Malte and Ors. (2012) 13 SCC 118, Swatanter

Kumar J. observed (at pp. 134-135):

33.Arbitrariness in the power of the State to make unfair conditions of service for the sitting or the former Judges of the High Court would tantamount to putting a kind of pressure on the judiciary.The exercise of subordinate legislative power, which by necessary implication, entrenches upon the independence of judiciary, would have to be decided on the touchstone of it being violative or otherwise, of the basic structure of the Constitution.

13. It is thus submitted that multiple features and aspects of the

Constitution are relevant in understanding how the independence of

the judiciary is sought to be protected in India. It is not limited to the

method of appointment of judges alone.

b. In no aspect of judicial functioning is judicial independence to be

protected as an absolutist ideal

14. From the note titled Historical Background to Constitutional Provisions

pertaining to the Higher Judiciary submitted to the Court on 5th May,

2015 (Annexure III), the following inferences regarding the intent of

the framers as far as the judiciary is concerned, are clear:

a. Independence of the judiciary was a key value to be secured in the Constitution insofar as the judiciary was concerned.

b. However, absolute judicial independence was not sought and all amendments that tilted the balance too far in favour of judicial independence were negatived.

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c. Judicial independence was sought to be balanced against accountability of judges and the judiciary, through several provisions that vested power in Parliament or the President, either in terms of appointment, or removal or salaries which are equally crucial in the overall scheme pertaining to judicial functioning.

d. Such provisions were designed to ensure checks and balances in the operation of the judiciary and its constitutional function.

15. In appreciating both the scope and degree of the independence of the

judiciary deemed necessary in India, we must place it within the

framework of the following questions derived from the working of the

constitutional provisions and case law:

i. Whose independence is being protected?

ii. From whom is the independence being protected?

iii. How is the independence being safeguarded?

iv. What are the matters in which such independence is being safeguarded?

v. Why is the independence of the judiciary being safeguarded so?

16. The next few paragraphs elaborate on what this framework means and

applies it in the context of India:

i. Whose independence is being protected?

17. In speaking of the independence of the judiciary in the context of the

Constitution, it is necessary to separate the independence of an

individual who functions as a judge and the independence of the

institution of the judiciary as a whole. It is undeniable that both have

to be protected in the context of our Constitutional scheme.

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18. The independence of the individual judge requires that he/she enjoy

the protections necessary to ensure that he/she can carry out his/her

constitutional functions as a judge in a free and fair manner, without

bias or the threat of repercussions.

19. Institutional independence requires the institutions of the judiciary,

the Supreme Court and the High Courts to maintain their independence

as institutions in the performance of their Constitutional duties.

20. In the First Judges case, Fazal Ali J. (at p. 411) accepted as correct

the contention that:

334..[i]ndependence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.

21. This distinction has been recognised by Kuldip Singh J. in the Second

Judges case when he quoted with approval (at pp. 647-648) Le Dain J.

of the Supreme Court of Canada in Valente v. The Queen [(1985) 2 SCR

673 (Can)]:

332.It is generally agreed that judicial independence involves both individual 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 institutional or administrative relationships to the executive and legislative branches of Government.

22. Institutional independence of the judiciary is therefore distinct from

the functional independence of the judge who is part of such a

judiciary. Both require protection on an equal footing.

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ii. From whom is the independence being protected?

23. The independence of the judiciary is protected, not only from the

interference of the Executive, but also the involvement of any third

party, which affects impartiality. This goes to the very nature of the

judiciary as the organ of state which is the neutral, impartial arbiter of

disputes between parties.

24. Balakrishnan J. (as he then was) in Jasbir Singh v. State of Punjab

(2006) 8 SCC 294 held (at p. 301):

14.The independence of the judiciary has been considered as a part of the basic structure of the Constitution and such independence is postulated not only from the Executive, but also from all other sources of pressure.

25. In the First Judges case, Bhagwati J. (as he then was) held (at p.

221):

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

iii. How is the independence being safeguarded?

26. The independence of the judiciary is safeguarded in a number of ways

through constitutional provisions, statutes, conventions and practices.

In addition to the framework protecting the individual judges

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independence, there also exists a separate framework adequately

protecting the independence of the judiciary as an institution. This

protection extends not just to the Supreme Court and High Courts, but

to the District Courts as well.

27. While appointments are one aspect of the functioning of Judges, the

Constitution of India also protects the functional independence of

judges in numerous other ways. This was pointed out in the discussion

of the Constituent Assembly Debates pertaining to the judiciary (See

Annexure III).

28. Further, judicial self-restraint in matters beyond the Courts

competence is one further way in which the independence of the

judiciary is maintained. As Sudershan Reddy J. observed in Divine

Retreat Centre v. State of Kerala (2008) 3 SCC 542 (at p. 570):

70. Institutions own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to them by adopting procedures which are otherwise not known.

71. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as public interest litigants. The individual Judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular Judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what

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communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.

iv. What are the matters in which such independence is being

safeguarded?

29. The primary matter in which the independence must be safeguarded is

decisional independence i.e. safeguarding individual judges from

threats, temptations, reprisals and other extraneous pressures, which

can affect judicial decision-making. This is the most basic level of

independence that a judge should enjoy in decision-making.

30. Judges also need to be behaviourally independent. Thus judges are also

public servants for the purposes of both the Code of Criminal

Procedure, 1973 and the Prevention of Corruption Act, 1988 as held by

this Honble Court in K. Veeraswami v Union of India (1991) 3 SCC

655. They cannot be prosecuted without the prior sanction of the

President acting in consultation with the Chief Justice of India or other

judges of the Supreme Court as the case may be.

31. With respect to the institutional protections enjoyed by the judiciary,

apart from the day-to-day functioning aspects mentioned above in

relation to the staff and the expenses of the Supreme Court and the

High Court, the Constitution also vests the power to exercise

administrative and disciplinary control over judges (short of

impeachment) in the Court itself.

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32. In respect of the District Courts, it is the High Court which exercises

the power of superintendence over such courts (Article 227). The High

Court is also mandatorily consulted by the Governor of the State before

making the appointment of District Judges (Article 233(1)).

iv. Why is the independence of the judiciary being safeguarded so?

33. The importance of independence of the judiciary is almost always

taken for granted, but it is well worth repeating the underlying

purposes for which this principle has been made a cornerstone of

modern democracy.

34. The reasons why judicial independence has been sought also vary.

While in the Second Judges case, Punchhi J. (as he then was) in his

dissenting opinion observed that Independence of the judiciary is an

essential attribute of Rule of Law, and is part of the basic structure of

the Constitution (para 502), in Union of India v. R Gandhi (2010) 11

SCC 1, Raveendran J. traced its relevance to the need for impartiality

by saying that independence is the lifeblood of Judiciary. Without

independence, impartiality cannot thrive. (para 46).

35. The importance of judicial independence for the separation of powers

also comes across from the observation made in Pareena Swarup v.

Union of India (2008) 14 SCC 107 by Sathasivam J. (as he then was)(at

p. 111):

10. .The Constitution guarantees free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined, if the legislatures were to divest the

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regular courts of their jurisdiction in all matters, and entrust the same to the newly created Tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular courts.

36. In Brij Mohan Lal v. Union of India (2012) 6 SCC 502, Swatanter

Kumar J. held (at pp. 547-548):

105. The independence of the Indian judiciary is one of the most significant features of the Constitution. Any policy or decision of the Government which would undermine or destroy the independence of the judiciary would not only be opposed to public policy but would also impinge upon the basic structure of the Constitution. It has to be clearly understood that the State policies should neither defeat nor cause impediment in discharge of judicial functions. To preserve the doctrine of separation of powers, it is necessary that the provisions falling in the domain of judicial field are discharged by the judiciary and that too, effectively.

37. Apart from its function as a neutral arbiter of disputes between

citizens, the judiciary also performs the role of a neutral arbiter in

disputes between citizen and State. In this respect, it cannot be seen

to be acting as an organ of the State (which it is) when the State is

before it as a litigant. While each country has had a distinct history in

the context of which the principle of judicial independence has been

articulated and applied, the common thread running through them all

is the need for the judiciary to act as a check on behalf of citizens

against the power of the State. (See Alexander Hamilton, James

Madison and John Jay, The Federalist (Harvard University Press 2009),

509-511).

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38. This Honble Court has also recognised the judiciarys role to act as a

guardian of the rights of the citizens against the State. An observation

to this effect was made by Bhagwati J. in the First Judges case(at p.

221):

27. .The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive.

39. In Union of India v. Madras Bar Association (2010) 11 SCC 1,

Raveendran J. brought about the necessary connection between the

need for impartiality in adjudication and the rule of law for the

protection of the rights of the citizens (at p. 56):

102..[r]ule of law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.

40. The sequitur from the analysis thus far is that the notion of the

independence of the judiciary is a structural phenomenon in the

context of the Constitution that consists of a network of provisions,

laws, practices and principles which have been adhered to, not just by

the legislature but also by the judiciary itself to uphold and maintain

its independence. It is thus submitted that independence of the

judiciary, whether functional independence for judges or institutional

independence of the judiciary is located in a number of features not

limited to appointment alone. Further it is not a monolithic concept

that mandates insulation of the judiciary in all its functions but

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operates as part of a larger framework of separation of powers and rule

of law. As regards functional independence of judges, the relevant

features are:

a. Protection for fixed terms and conditions of service.

b. Rules of recusal in cases of bias or conflict of interest along with a

general code of conduct on acceptable behaviour or judges.

c. Disciplinary powers being vested with the judiciary itself.

d. Removal only on the basis of a detailed enquiry and on vote by

Parliament.

e. Requirement to abstain from the practice of law post retirement.

41. Insofar as institutional independence is concerned, the features of

independence of the judiciary include:

a. Involvement in the appointments process of judges, whether to

the higher or the lower judiciary.

b. Administrative and disciplinary control of the lower judiciary.

c. Administrative control of the Court.

d. Primary power to engage and dispense with administrative staff

necessary for the functioning of the Court.

e. Expenses and costs of administration beyond Executive or

Legislative interference.

f. Judicial restraint in the exercise of jurisdiction.

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II. Separation of Powers and Checks and Balances also form part of the

Basic Features of the Constitution

a. The Constituent Assembly Debates demonstrate the intention of the

framers to ensure checks and balances and prevent unaccountable

exercises of judicial power apart from ensuring judicial independence

42. In attempting to understand the basic framework underlying the checks

and balances in the Constitution and the need to prevent

unaccountable exercise of powers by the judiciary, it is necessary to

examine the Constituent Assembly Debates which shed light on this

aspect. This has already been submitted to this Honble Court on

5thMay, 2015 and may be found at Annexure III. These Debates show

the coexistence of judicial independence and checks and balances in

Chapter IV of Part V and Chapter V of Part VI of the Constitution.

b. Separation of Powers is a basic feature of the Constitution which has

been held to include checks and balances

43. To understand the need for and the meaning of checks and balances,

reference may be made to the Federalist Papers where the most

cogent treatment of this concept as an essential aspect of separation

of powers may be found. (Federalist No. 47-51, Alexander Hamilton,

James Madison and John Jay, The Federalist, Cambridge MA: Belknap

Press, 2009) (See Annexure IV).

44. James Madison, writing in Federalist No. 47, stressed the need to keep

organs of government, including the judiciary, separate and distinct

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from each other. In fact he agreed with critics who had commented

that his proposed scheme of separation was insufficient by agreeing

with the basis of their objection, i.e. that no political truth other

than the separation of powers, was of greater intrinsic value.

(Federalist Paper No. 47 in Federalist Papers, 316). At the same time

he defended his proposed scheme by arguing that nothing in the

concept of separation of powers required absolute separation between

the legislature, executive and judiciary. Instead, he was of the view

that (Federalist Paper No. 48 in Federalist Papers 324):

Unless these departments be so far connected and blended with each other as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.

45. For Madison, maintaining a balance of political power was crucial. But

constant clashes between the King and Parliament in Britain, a by-

product of the intensely blended Westminster model of government,

made him, and other founding fathers of the American Constitution,

rightfully wary of inter-connections between personnel in agencies of

government. Thus such balance would have to be achieved without any

blending in terms of institutional personnel though each organ would

have a key stake in the others functioning. (For more on the Federalist

Papers and its relevance to judicial appointments in India, see Arghya

Sengupta, Independence and Accountability of the Indian Higher

Judiciary D.Phil. in Law Thesis, University of Oxford, July 2014, at pp.

201-224).

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46. This Honble Court has also agreed with the line of thinking in the

Federalist Papers in respect of the Independence of the judiciary and

separation of powers in IR Coelho v State of Tamil Nadu (2007) 2 SCC

1 where Sabharwal CJI held (at p. 86):

63. The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati case [(1973) 4 SCC 225] by the majority. Later, it was reiterated in Indira Gandhi case [1975 Supp SCC 1]. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

64. In fact, it was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter 6). There, Montesquieu writes,

When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty Again, there is no liberty, if the judicial power be not separated from the legislative and executive.

Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government.

Further, it was also pertinently observed (at p. 79):

43.The principle of constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision-making.

47. In India, separation of powers is considered part of the basic structure

of the Constitution and the same has been held by this Honble Court.

In Kesavananda Bharati Sikri CJI at para 292 identified separation of

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powers between the legislature, the executive and the judiciary as

one of the basic features of the Constitution.

48. This Honble Court has recognised the existence of a system of checks

and balances prevailing within the scheme of the Constitution in a

number of decisions. The Court has also recognised that the principle

of separation of powers encompasses varied virtues such as mutual

checks and balances and accountability of action for all branches of the

government. In State of Bihar v. Bihar Distillery Ltd. (1997) 2 SCC

453, Jeevan Reddy J. observed (at p. 466):

17.It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of checks and balances inherent in such scheme.

49. In Kesavananda Bharati, Shelat and Grover JJ. held (at pp. 452-453):

577.There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them.

50. The Supreme Court further propounded on the need and existence of

the system of checks and balances. In Indira Nehru Gandhi v. Raj

Narain 1975 Supp SCC 1 Chandrachud J. (as he then was) held (at pp.

260-261):

687. The reason of this restraint is not that the Indian Constitution recognizes any rigid separation of powers. Plainly, it does not. The reason is that the concentration of powers in any one organ may, by upsetting that fine balance between the three organs, destroy the

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fundamental premises of a democratic government to which we are pledged. Sir Carleton K. Alien says in his Law and Orders (1965 Edn., p. 8) that neither in Montesquieus analysis nor in Lockes are the governmental powers conceived as the familiar trinity of legislative, executive and judicial powers. Montesquieus separation took the form not of impassable barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as checks and balances (p. 10).

688..no Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems entwined in the political thicket. Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which has in it the precept, innate in the prudence of self-preservation (even if history has not repeatedly brought it home), that discretion is the better part of valour [Julius Stone: Social Dimensions of Law and Justice, (1966) p. 668].

51. Bhagwati J. (as he then was) held in Minerva Mills v. Union of

India(1980) 3 SCC 625 (at pp. 676-677):

86. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.

52. While explaining the functioning of the three organs of the government

inter se, the Supreme Court in Asif Hameed and Ors. v. State of

Jammu and Kashmir and Ors.1989 Supp (2) SCC 364 speaking

through Kuldip Singh J. held (at pp. 373-374):

17. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function

21

and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of peoples will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy.

53. In State of Uttar Pradesh v. Jeet S. Bisht (2007) 6 SCC 586, Sinha J.

observed (at pp. 617-618):

78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times.

54. In the context of separating the judiciary from the executive, this

Honble Court has also cautioned against the uncanalised power of a

single branch of the government. In the context of the independence of

the judiciary in Union of India v. Sankalchand H. Sheth (1977) 4 SCC

193, Krishna Iyer J. noted (at pp.262-263):

91......It is not as if judicial independence is an absolute end overriding the peoples well being. Nothing is more certain in a modern society, declared the U.S. Supreme Court at mid-century, than the principle that there are no absolutesTo idealise independence of the Judges beyond the profile of the Constitution is to self-colonise our countrys life-style. And, Benjamin Cardozo has, with beautiful bluntness, expressed how the sub-conscious forces and social philosophies of Judges hold their minds captive:

Judges cannot escape that current any more than other mortals. All their lives, forces, which they do not recognise and cannot name,

22

have been tugging at them inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense, in James phrase, of the total push and pressure of the cosmos which, when reasons are nicely balanced, must determine where the choice shall fall. [Nature of the Judicial Process, p. 12]

55. This Honble Court has also acknowledged the existence of the

principle of separation of powers in the context of accountability of

each branch of the government. In Bhim Singh v. Union of India

(2010) 5 SCC 538, Sathasivam J. (as he then was), held (at pp. 572 and

575):

77..The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government.

78. While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability.

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

56. The importance of the judiciary retaining public confidence, especially

in the manner in which appointments to the higher judiciary are

carried out thus must be seen both in the context of independence of

23

the judiciary as also the need for checks and balances on it. In K.

Veeraswami v. Union of India (1991) 3 SCC 655 this Honble Court

held as follows (at pp. 705 and 750-751):

53. The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration.

122It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made even if sometime a good appointment does not go through.

57. As this Court has pointed out, judicial independence is not absolute in

all respects and must be balanced with public interest. Krishna Iyer J.

in Union of India v. Sankalchand H. Sheth (1977) 4 SCC 193 drew a

connection between judicial independence and public interest by

observing (at p. 263):

92....[t]he independence principle will have to be harmonised with the cause of compelling public interest. Indeed, the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as not to militate seriously against the free flow of public justice. Such a balanced blend is the happy solution of a delicate, complex, subtle, yet challenging issue which bears on human rights and human justice.

58. Based on the above, it is submitted that the concept of separation of

powers represents various virtues, and not just a strict separation of

the branches of government. Most significantly, it envisages an

24

independent judiciary existing within a system of checks and balances

between various branches pervading the entire constitutional scheme.

Thus when the validity of the 99th Amendment against the basic

structure is to be assessed it must be in light of the various facets of

the basic structure and not merely against an absolutist conception of

judicial independence as has been contended by the petitioners.

59. In addition to the independence of judiciary and separation of powers,

democracy has also been held to be one of the basic features of the

Constitution. This Honble Court in Indira Nehru Gandhi v. Raj Narain

1975 Supp SCC 1 held (at p. 254) that The contention that

democracy is an essential feature of the Constitution is

unassailable (para 672). Furthermore, this Honble Court in Manoj

Narula v. Union of India(2014) 9 SCC 1 observed, per Misra J. (at p.

20):

1. There is no shadow of doubt that democracy in India is a product of the rule of law and aspires to establish an egalitarian social order. It is not only a political philosophy but also an embodiment of constitutional philosophy.

60. It is also humbly submitted that democracy, inter alia, envisages

openness and plurality of views. In Secretary, Ministry of Information

and Broadcasting v. Cricket Association of Bengal (1995) 2 SCC 161,

Sawant J. (for himself and Mohan J.) observed (at p. 195):

16. Democracy is a government by the people via open discussion. The democratic form of government itself demands from its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a

25

basic feature and a rational process of democracy which distinguishes it from all other forms of government.

Further, this Honble Court held (at p. 300):

201(1)(b).A successful democracy posits an aware citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them.

Clearly, diversity of opinions and plurality of views are general facets

essential to a democracy. The working of a democracy envisages

participation from a wide range of interests in the process of decision-

making.

61. In the context of appointment of judges, this plurality should be read

as plurality of voices from a broad range of persons, and not just

plurality of judges. Such plurality has been intended as a check on

arbitrary power exercisable by any one individual. Verma J. (as he then

was) observed in the Second Judges case (at p. 699):

468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.

62. Pandian J. also observed (at p. 574) in the Second Judges case the

importance of plurality and diversity while recognising the right of the

Central as well as the State Government to suggest names of suitable

26

candidates for judgeship, to the Chief Justice of India and the Chief

Justice of the State respectively:

216(3). It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or Scheduled Castes or Scheduled Tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.

63. It is humbly submitted that an independent judiciary serves as a

prerequisite for a flourishing democracy. Democracy encompasses the

requirement of plurality of views and diversity of opinions. The 99th

Amendment makes an attempt to ensure such plurality in the

appointments process by requiring the presence of the Chief Justice of

India, two seniormost puisne Judges of the Supreme Court, the Law

Minister and two eminent persons on the NJAC. Such a diverse

composition would ensure plurality, which is intended to act as a check

against arbitrary decision-making, while maintaining judicial

independence. Thus, the 99th Amendment ensures a democratic process

for the appointment of judges, by ensuring that only one branch of the

government is not solely responsible for making appointments.

III. When interpreting a constitutional amendment against the basic

structure, judicial independence, separation of powers and

democracy have to be balanced

27

64. It is respectfully submitted that when interpreting the Constitution as

well as the various facets of the basic structure the Court must

consider the text and the structure in their entirety and not in a uni-

dimensional manner. This Honble Court in Sahara India Real Estate

Corpn. Ltd. v. SEBI (2012) 10 SCC 603, speaking through Kapadia CJI

held (at p. 717-718):

25.It must not be forgotten that no single value, no matter how exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in an appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial. (emphasis supplied)

65. The above passage echoes Professor Laurence Tribe, who in his book

On Reading the Constitution (co-authored with Michael C. Dorf,

Harvard University Press, 1991), has said:

When all of the Constitutions supposed unities are exposed to scrutiny, criticisms of its inconsistency with various readers sweeping visions of what it ought to be become considerably less impressive. Not all need be reducible to a single theme. Inconsistency even inconsistency with democracy is hardly earth-shattering.

66. This has led to a technique of constitutional interpretation known in

American constitutional law as holism. The above principle has been

28

elaborated in a number of academic journals and articles. Its essence is

captured by the statement below:

Holistic methods share the premise that the meaning of the constitutional text is not exhausted by whatever concepts an isolated phrase connotes to the reader [because] further guidance can often be gleaned from the balance of the constitutional text. (Michael C. Dorf, Equal Protection Incorporation, 88 VA L Rev 951, 952 (2002).)

67. This has also been followed in Germany, a country whose Federal

Constitutional Court has, like India, recognised substantive limitations

on the power to amend the Constitution. In the Southwest

case(BVerfGE 1,14, 1951) where such limitations were first recognised,

the Court held,(as translated and paraphrased by Justice Gerhard

Leibholz, who was an Associate Justice of the Court):

When making its decision in the legal dispute, the Court felt the need to set forth a number of fundamental tenets. They may be of particular interest to other countries with special constitutional authorities. One of the first tenets laid down by the Court, for example, states that the Court is concerned with determining only the legality, not the expediency of a contested rule. It stresses explicitly that the Court is not to decide whether the legislature has put the discretionary power which it has been granted to proper use in individual cases, although it adds that the extent to which the legislature may exercise its discretionary power is in itself a legal question which comes under the jurisdiction of the Court if the limits of this power are considered to be defined by the Constitution.

Another tenet of fundamental importance formulated by the Court states that no single constitutional provision may be taken out of its context and interpreted by itself. The Court holds that each constitutional clause is in a definite relationship with all other clauses, and that together they form an entity. It considers certain constitutional principles and basic concepts to have emerged from the whole of the Basic Law to which other constitutional regulations are subordinate. The Court even goes so far as to acknowledge the existence of a higher law which transcends positive law and to which it is necessary to hold responsible both the legislature and the

29

constituent power. In the opinion of the Court, therefore, every constitutional provision must always be interpreted in such a way as to render it compatible with the fundamental principles of the Constitution and the intentions of its authors. And in answer to the question as to which parts of the Bonn Basic Law are to be considered fundamental, the Court mentions three: the democratic principle, the federal principle, and the principle of the rule of law (Rechtsstaat.) [Gerhard Leibholz, The Federal Constitutional Court in Germany and the Southwest Case The American Political Science Review 46(3) 723 (1952) at 725-26]

68. The technique of holism as a means of constitutional interpretation

has been explained with specific reference to judicial Independence

and accountability by Saikrishna Prakash and Steven D. Smith (both

Professors at the University of San Diego) in an article in the Yale Law

Journal (116 Yale Law Journal 159 (2006):

The Framers (of the US Constitution) were concerned about accountability, to be sure -but they were also concerned about judicial independence and a whole host of other values. These values did, and do, compete with each other to some extent. So the Framers devised a system that inevitably involved balancing and tradeoffs among competing values and commitments. They could have adopted a system designed to maximize accountability (by making all officials, including judges, subject to annual reelection perhaps), or they could have adopted a system that would maximize judicial independence (by not making judges impeachable at all). But, in fact, the Framers were sensible enough to do neither of these things.

Consequently, appealing to one among many competing values and commitments in a holistic way and then construing a provision to further that value is no way to respect the constitutional design. If we want to be genuinely holistic, we must look at the particular tradeoffs the Framers made as embodied in the various constitutional provisions, and do our best to figure out what those particular provisions meant.

69. It is respectfully submitted that the technique of holism in

constitutional interpretation must be adopted by this Honble Court in

the instant case. Accordingly, the provisions pertaining to Chapter IV of

30

Part V (The Union Judiciary) and Chapter V of Part VI (The High

Courts in the States) of the Constitution need to be read as a whole

rather than construing Article 124 and Article 217 in isolation. Further,

while assessing whether the 99th Amendment against the touchstone of

the basic structure, all its relevant facets, in this case the

independence of the judiciary, checks and balances, democracy and

separation of powers need to be considered as a whole.

70. Reading the Constitution as a whole and without falling into the trap of

one-dimensional holism, it is clear that judicial independence was a

key value the framers of the Constitution considered basic to our

constitutional scheme. This has been well-accepted in a catena of

decisions of the Supreme Court, which have been mentioned above.

However, from the constitutional scheme, it is equally evident that

three other values underpin the vesting of power generally and judicial

power in specific accountability, democracy and checks and balances.

This is discernible from the Constituent Assembly Debates as well as

precedents cited above. Further, checks and balances has been held to

be part of the basic structure of the Constitution as a necessary

corollary of separation of powers.

71. On the basis of the aforementioned precedents and texts cited above,

it is submitted that:

a. The principle of independence of judiciary is a basic feature of

the Constitution.

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b. The principle of separation of powers and its corollary of checks

and balances, as well as democracy are basic features of the

Constitution.

c. Independence of judiciary, separation of powers and democracy

are all relevant values to be secured in the process of appointing

judges to the higher judiciary.

d. None of these values is absolute and the provisions of the 99th

Amendment optimally secure all of these values in a manner that

does not abrogate or destroy the basic features of the

Constitution, as has been demonstrated presently.

32

E. PRIMACY OF THE JUDICIARY IN APPOINTMENT OF JUDGES TO THE

SUPREME COURT AND HIGH COURTS IS NOT A BASIC FEATURE OF THE

CONSTITUTION

72. It has been submitted by the petitioners that the 99th Amendment is

violative of the independence of the judiciary. This is specifically

alleged on the ground that:

In the matter of appointment of Judges to the High Courts and the Supreme Court primacy of the Higher Judiciary must be secured and protected(first affirmed in Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441 at page 522 para 56); (Bench of Nine Judges); re-affirmed in Special Reference No. 1 of 1998 (Nine Judges) reported in 1998 (7) SCC 739) (unanimous) [Ground C(iii)- Writ Petition No. 13 of 2015 filed by Supreme Court Advocates-on-Record Association]

On this basis, it is contended,

The Independence of the Judiciary is an integral part of the Basic Structure of the Constitution of India and Independence of the Judiciary, and inter alia, includes the necessity to eliminate political influence even at the stage of appointment of a Judge, the executive element in the appointment process being minimal. The Constitution (99th Amendment) Act of 2014 as passed by the two houses of Parliament, by providing for a National Judicial Appointments Commission, consisting of the Chief Justice of India; and two other senior Judges of the Supreme Court next to the Chief Justice of India; the Union Minister in charge of Law and Justice; and two eminent persons to be nominated by a committee (consisting of the Prime Minister, Leader of Opposition or leader of single largest party in Lok Sabha and the Chief Justice of India), takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India next to the Chief Justice of India, i.e. even if all three senior most judges of the Supreme Court of India collectively recommend an appointee, the appointment is enabled to be suspended by a majority of three non-Judge members. (emphasis supplied) [Ground D- Writ Petition No. 13 of 2015 filed by Supreme Court Advocates-on-Record Association]

33

73. It is respectfully submitted that the concept of primacy of the judiciary

in the matter of appointments came about only pursuant to the Second

Judges Case. The said case requires reconsideration. Even if not

reconsidered, it is submitted that the Second Judges case and the

Third Judges case have no relevance to the question of assessing the

constitutional validity of the 99th Amendment, as they read in the

requirement of primacy in the context of the consultative process laid

down in the original Article 124(2) and Article 217(1). The said

provisions having been amended, the judgments have no relevance.

74. In any event, primacy of the higher judiciary in the matter of

appointment of judges to the higher judiciary is not a basic feature of

the Constitution. Further, it has no necessary connection with judicial

independence as is demonstrated by the fact of the existence of

independent judiciaries in several jurisdictions, including India at the

inception of the Constitution in 1950, where no primacy of the

judiciary in appointments has been provided for.

I. The Second Judges Case requires reconsideration

75. Primacy of the judiciary in judicial appointments was laid down as law

in the Second Judges case. Verma J. speaking for the majority held

(at p. 693):

451.The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if

34

conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.

Again, it was held (at pp. 701-702):

478(5).The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.

76. That primacy was not accorded to the individual opinion of the Chief

Justice of India but the views of the judiciary as a whole symbolised by

the Chief Justice was clarified in Para 478,

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

35

77. These were summarised in the conclusion as follows,

(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.

78. The Third Judges case upheld this requirement of primacy and

clarified the working of the consultative process within the judiciary,

necessary for the view of the judiciary symbolised by the Chief Justice

of India to have legal validity. It held:

15. We think it necessary to make clear at the outset the distinction that follows. The opinion of the Chief Justice of India which has primacy in the matter of recommendations for appointment to the Supreme Court has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. In making a decision as to whom that collegium should recommend, it takes into account the view that are elicited by the Chief Justice of India from the seniormost Judge of the Supreme Court who comes from the same High Court as the person proposed to be recommended. It also takes into account the views of other Judges of the Supreme Court or the Chief Justices or Judges of the High Court or, indeed, members of the Bar who may also have been asked by the Chief Justice of India or on his behalf. The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench. The Chief Justice of India and the seniormost puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective. They can assess the comparative worth of possible appointees by reason of the fact that their judgments would have been the subject matter of petitions for special leave to appeal and appeals. Even where the person under consideration is a member of the Bar, he would have frequently appeared before them. In

36

assessing comparative worth as aforestated, the collegium would have the benefit of the inputs provided by those whose views have been sought. The distinction, therefore, is between the Judges of the Supreme Court who decide, along with the Chief Justice of India, who should be recommended for appointment to the Supreme Court and the judges of the Supreme Court and others who are asked to express their views about the suitability of a possible nominee for such appointment.

16. With this in mind, what has to be considered is whether the size of the collegium that makes the recommendation should be increased. Having regard to the terms of Article 124(2), as analysed in the majority judgment in the second Judges case, as also the precedent set by the then Chief Justice of India, as set out earlier, and having regard to the objective aforestated, we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court.

79. It has already been humbly submitted before this Honble Court that

the decision in the Second Judges caseand consequently the Third

Judges case require reconsideration on these points by a larger

Bench. In any event, the need for an authoritative pronouncement on

the points of law in a matter of such constitutional importance requires

reference to a larger Bench. The reasons for seeking such reference to

a larger Bench may be found in Annexure V. Hence the instant case

should be referred to a larger Bench for consideration.

II. Assuming it is held that the Second Judges Case does not require

reconsideration, it has no relevance for assessing the constitutional

validity of the 99th Amendment

80. It is humbly submitted that a judgment which interprets a certain

provision of an enactment ceases to be a precedent for that

37

interpretation when the said provision is amended or substituted. In

the instant case, it is pertinent to note that the Second Judges case

and the Third Judges case rendered an interpretation of Article 124

of the Constitution. However the 99th Amendment has amended Article

124 and inserted Article 124A thereafter, which leaves the

interpretation hitherto placed on the unamended Article 124 irrelevant

for the purposes of testing the validity of the 99th Amendment.

81. It must be noted that though the 99th Amendment is not a validating

amendment in terms, it is akin to one for the purposes of effacing the

precedential value of the Second Judges case and the Third Judges

case. Hence the judgments explaining the loss of the binding and

precedential value of judgments after a validating amendment would

be relevant.

82. In this regard, a Constitution bench of this Honble Court in Shri

Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2

SCC 283 speaking through Hidayatullah CJI, held as follows (at pp. 286-

287):

4.. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (Emphasis supplied)

83. A similar observation was made by Ray CJI in Indira Nehru Gandhi v.

Shri Raj Narain 1975 Supp SCC 1 (at p. 40):

39. The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of

38

old law and thus make the judgment ineffective. A formal declaration that the judgment rendered under the old Act is void, is not necessary

84. Again in K. Sankaran Nair v. Devaki Amma Malathy Amma (1996) 11

SCC 428 this Honble Court held (at p. 433):

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

85. It is submitted that the sequitur to the aforesaid dicta is that

subsequent to a validating amendment, the judgment in question

would cease to be a binding precedent, without a declaration to that

effect.

86. In P.S. Mahal v. Union of India (1984) 4 SCC 545 this Honble Court

after considering the judgment in Shri Prithvi Cotton Mills Ltd. v.

Broach Borough Municipality (supra) held that only a declaratory

judgment can be overcome by a legislature through a validating

amendment (at p. 570):

12...It is difficult to see how this decision given in the context of a validating statute can be of any help to the respondents. Here the decision in A.K. Subraman case [(1975) 1 SCC 3191975 SCC (L&S) 36 : (1975) 2 SCR 979 : 1975 Lab IC 254] which is relied upon by the petitioners is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by that judgment and validate such impost or tax.But it

39

is a decision giving effect to the right of the Executive Engineers promoted from the grade of Assistant Engineers to have their inter se seniority with Executive Engineers promoted from the grade of Assistant Executive Engineers determined on the basis of rule of length of continuous officiation by issue of a writ directing the Government of India to amend and revise the seniority list in accordance with such rule of seniority [Emphasis supplied]

87. Since the Second Judges case and the Third Judges case are

declaratory judgments on the original Article 124, the foundation of

the judgment has been removed and hence cannot be relied on in their

entirety.

88. This Honble Court has likened the result of such an amendment to be

that of wiping out the judgment in question in the case of

Bhubaneshwar Singh v. Union of India (1994) 6 SCC 77 where it held

(at p. 83):

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

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89. In Easland Combines v. CCE (2003) 3 SCC 410 this Honble Court

explained that the reasoning of a judgment would not survive after a

change in legislation (at p. 419):

14. ..This amendment changes the entire basis or foundation of the judgment rendered in Cotspun case [(1999) 7 SCC 633 : (1999) 113 ELT 353] . The entire discussion in the said case is based upon Rule 173-B which dealt with classification list and that the assessee must determine the excise duty which is payable by him on the goods which he intends to remove in accordance with the approved classification list. The Court based its reasoning by holding (at SCC p. 637, para 13) Rule 10 does not deal with classification lists or relate to the reopening of approved classification lists. That is exclusively provided for by Rule 173-B. The Court further held that the levy of excise duty on the basis of approved classification list is not short-levy and the differential duty cannot be recovered on the ground that it is a short-levy and Rule 10 then has no application. After the amendment of law, this reasoning of the judgment would no longer survive. .

90. In S.T. Sadiq v. State of Kerala(2015) 4 SCC 400, Nariman J. held (at

p. 412):

13. It is settled law by a catena of decisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in making law (see Article 245 of the Constitution) and not in declaring what the law shall be (see Article 141 of the Constitution). If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters which are inter partes. Interestingly, in England, the last such bill of attainder passing a legislative judgment [R. v. Fenwick, (1696) How 13 St Tr 538] against a man called Fenwick was passed as far back as in 1696. A century later, the US Constitution expressly outlawed bills of attainder (see Article 1 Section 9).

14. It is for this reason that our Constitution permits a legislature to make laws retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no longer hold good. However, if such is not the case then legislation which

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trenches upon the judicial power must necessarily be declared to be unconstitutional.

91. In light of the afore-mentioned decisions of this Honble Court, it is

humbly submitted that the Second Judges case and the Third

Judges case were interpreting the term consultation in the old

Article 124 which envisaged a consultative process that the President

would have to undertake prior to appointment of a judge. The said

consultative process including the word consultation have no place in

the amended Article 124 brought about by the 99th Amendment. Hence

precedents pertaining to the old Article 124 have been rendered

ineffective and irrelevant. This, as this Honble Court has held, time

and again, is within the competence of the Parliament. Thus in testing

the constitutional validity of the 99th Amendment, the Second Judges

case and the Third Judges case have no relevance.

III. In any event, primacy of the judiciary cannot be a basic feature of the

Constitution

a. Primacy of the judiciary and the concept of a judicial collegium to

recommend appointment of judges cannot be culled out from the

provisions of the Constitution as originally enacted.

92. At the time of the enactment of the Constitution, Article 124(2) read

as follows:

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

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Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).

Similarly Article 217(1) as originally enacted read as follows,

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor or the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office until he attains the age of sixty years:

Provided that --

a Judge may, by writing under his hand addressed to the President, resign his office; a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; the office of a Judge shall be vacated by his being appointed by the President of India to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

93. A bare reading of the provisions demonstrates that in case of Article

124(2), the Chief Justice of India had a mandatory consultative role.

Other judges of the Supreme Court and High Courts could be consulted

by the President in his discretion. In Article 217(1), the Chief Justice of

India, Governor of the State and for posts other than the Chief Justice

of the High Court, the Chief Justice of the High Court would have to be

mandatorily consulted. No question of primacy of the Chief Justice of

India or the judiciary is discernible from a bare reading of the

provisions. On the contrary, it is a scheme that contains checks and

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balances with no constitutional functionary having unfettered power to

appoint.

94. The Constituent Assembly Debates support this proposition. In the

Debates, the intent of the framers was clearly to prevent unfettered

executive discretion in the matter of appointments while not making

the judiciary an insulated organ of government. Thus appointments

continued to be an executive act with consultation with several

constitutional functionaries to act as a check and balance on the

executive and secure judicial independence. This combination of

judicial independence and mutual checks and balances is not just a

feature of Article 124(2)and Article 217(1) but runs through the whole

of Chapter IV of Part V, pertaining to the Union Judiciary, and Chapter

V of Part VI, pertaining to the High Courts in the States. This is clear

from the note titled Historical Background to Constitutional Provisions

pertaining to the Higher Judiciary submitted to the Court on 5th May,

2015. It may be found in Annexure III.

95. It is evident from a bare reading of Articles 124(2) and 217(1), their

contextual reading in light of the provisions pertaining to the judiciary

on the whole and the Constituent Assembly Debates that in the matter

of appointment of judges to the higher judiciary, no primacy of the

Chief Justice of India was envisaged. On the contrary, the Chief Justice

was a check on the executive which had the final say in the matter of

appointment. There is no indication in any source that this checking

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function of the Chief Justice of India should be turned on its head and

equated with primacy being accorded to his views.

96. The same inference can be drawn in relation to the view that the Chief

Justice of India in Article 124(2) and Article 217(1) does not act in his

individual capacity but symbolises the view of the judiciary. A bare

reading of Article 124(2) shows that judges of the Supreme Court, other

than the Chief Justice of India, and judges of High Courts could be

consulted by the President in his discretion. Similarly in Article 217(1),

the Chief Justice of the High Court had to be separately consulted as

did the Governor of the State. Through consultation with multiple

constitutional functionaries, a plurality of opinions would be sought,

which would aid the President in appointing the most appropriate

persons to judgeship. Nowhere was this concept of plurality seen as

internal to the judiciary as has been held by the Second Judges

Casein justifying the creation of the collegium. Hence the idea of the

collegium of judges whose opinions would collectively form the view of

the Chief Justice of India is a judicial construct that has no basis in the

original Constitution. This was also the intention of the framers of the

Constitution so as not to allow the judiciary to reallocate the powers of

specific authorities. Dr. Ambedkar in his closing speech in the

Constituent Assembly pertinently noted:

Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing

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powers, but they cannot assign to one authority powers explicitly granted to another.

[Constituent Assembly Debates, 25th November 1949, vol. XI]

97. It has already been established that the basic structure of the

Constitution can be culled out by the judiciary only from the provisions

of the Constitution as originally enacted. There was no concept of

primacy of the Chief Justice of India in the matter of judicial

appointments in the Constitution as originally enacted. Similarly, there

was no concept of a collegium of seniormost justices of the Supreme

Court and High Court, including the respective Chief Justices whose

views would represent the symbolised views of the judiciary. Thus the

primacy of the judiciary in the matter of judicial appointments cannot

be a basic featu