Judges: J.S. Khehar, Jasti Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.

Facts:

Articles 124,127, 128, 217, 222, 224 and 231 of the Constitution of India deal with the appointment of the judges of the Supreme Court and the High Courts, and other allied matters.

The Constitution (Ninety-Ninth Amendment) Act, 2014 [hereinafter, Constitution (99th Amendment) Act] inter alia sought to amend these constitutional provisions. The National Judicial Appointments Commission Act, 2014 (hereinafter, the NJAC Act), enacted simultaneously, purported to regulate the procedure of the National Judicial Appointments Commission (NJAC).

In present case, petitions were filed challenging the constitutional validity of the Constitution (99th Amendment) Act and the NJAC Act.

Inter alia, the parties sought reconsideration of the decisions rendered by Supreme Court in the Supreme Court Advocates-on-Record Association v. Union of India MANU/SC/0073/1994 (hereinafter, Second Judges case) and Re: Special Reference No. 1 of 1998 MANU/SC/1146/1998 (hereinafter, Third Judges case).

Issues:

(i) Whether case made out to reconsider judgments rendered in Second Judges case and Third Judges case?

(ii) Whether Constitution (99th Amendment) Act is ultra vires the "basic structure" of the Constitution?

(iii) Whether provisions of NJAC Act are unconstitutional?

(iv) Whether primacy of judiciary in appointment of judges is part of basic structure of the Constitution?

(v) Whether the process of selection and appointment of Judges to the higher judiciary, and the transfer of Chief Justices and Judges of one High Court to another, contemplated through the Constitution (99th Amendment) Act, retains and preserves primacy in the decision making process, with the judiciary?

(vi) Would the amended provisions of the Constitution revive, if the Constitution (99th Amendment) Act was to be set aside, as being violative of the "basic structure" of the Constitution?

Law:

Constitution of India, 1950 - Article 368 - Power of parliament to amend the Constitution.

Constitution of India, 1950 - Article 124 - Establishment and constitution of Supreme Court.

Constitution of India, 1950 - Article 127 - Appointment of ad hoc Judges.

Constitution of India, 1950 - Article 217 - Appointment and conditions of the office of a Judge of a High Court.

Constitution of India, 1950 - Article 222 - Transfer of a Judge from one High Court to another.

Constitution of India, 1950 - Article 124A - Provisions relating to National Judicial Appointments Commission (NJAC).

Contentions:

Petitioners

(i) Constitution is supreme and powers of all organs are defined and controlled thereunder.

(ii) Amending power of Parliament is limited by the concept of basic structure as judicially interpreted.

(iii) Final interpreter of the Constitution and the scope of powers thereunder is this Court.

(iv) Independence of judiciary and separation of powers are part of basic structure.

(v) Primacy of judiciary in appointment of judges is crucial part of independence of judiciary and separation of powers and thus part of basic structure.

(vi) Role of executive and legislature in appointment of judges being kept at minimum was also part of basic structure.

(vii) The composition of the Commission in the impugned Amendment severally damages the basic structure of the Constitution by destroying primacy of judiciary in appointment of judges and giving controlling role to the executive and legislature in such appointments.

(viii) Constitution (99th Amendment) Act enables stalling of appointment of judges proposed by the judiciary unless candidates suggested by the executive are appointed thereby compromising independence of judiciary.

(ix) Constitution (99th Amendment) Act expands the power of amendment by delegating crucial issues of appointment of judges to Parliament which is against the basic structure of the Constitution.

(x) The composition of the Commission will shake confidence of people in Judiciary if Executive or Legislature has dominant voice.

(xi) NJAC Act is beyond legislative competence of the Parliament.

Respondents

(i) Power of appointment of judges rests with the executive and role of judiciary is confined to consultation which may or may not be accepted by the executive.

(ii) Primacy of judiciary in appointments was recognised by erroneous interpretation of unamended provisions of the Constitution and by way of amendment such interpretation has been corrected and thus there is no violation of basic structure. Alternatively larger Bench should be constituted to correct the earlier interpretation.

(iii) Primacy of judiciary in appointments was not inalienable and in changed situation, in the light of experiences gained, the primacy could be done away with or modified.

(iv) Wisdom of constituent body in making a choice was not open to judicial review.

(v) Taking the Constitution as a whole, value of independence of judiciary could be balanced with other constitutional values of democracy, accountability and checks and balances.

(vi) Power of amendment was plenary and could not be questioned unless it results in destruction of a pillar of Constitution.

(vii) Even with power being with executive or power of veto being with executive, independence of judiciary could survive so long as there was protection of tenure and service conditions of judges.

(viii) Accountability and transparency in functioning of every constitutional organ was part of democracy in which case exclusive power of appointment of judges with the judiciary was undemocratic.

(ix) Constitution (99th Amendment) Act retains primacy by having three out of six members, out of which two could stop an undesirable appointment. The executive did not have predominant role as two eminent persons were appointed by a committee having the Prime Minister, the CJI and the Leader of Opposition thereby role of Prime Minister being limited. Law Minister and eminent persons as members ensured giving of relevant feedback and ensuring accountability and transparency.

(x) Constitution (99th Amendment) Act in conferring power on Parliament and the Central Government in procedural matters did not violate independence of judiciary.

(xi) NJAC Act was within legislative competence of Parliament.

Analysis:

Second Judges Case (MANU/SC/0073/1994) - Conclusions drawn

(i) The word 'consultation' used in Articles 124, 217 and 222 of the Constitution meant that the opinion of consultee was normally to be accepted thereby according primacy to the judiciary.

(ii) The Executive being major litigant and role of judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges.

(iii) Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges.

(iv) Since traits of candidates could be better assessed by the Chief Justice, the view of the Chief Justice as to suitability and merit of the candidate had higher weight.

(v) The Chief Justice of India was not to make a recommendation individually but as representing the judiciary in the manner laid down, that is, after consulting the collegium; and Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution.

Third Judges case (MANU/SC/1146/1998) - Conclusions drawn

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

(ii) 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, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court.

(iii) 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.

Preliminary issue - Reconsideration of the Second Judges case and the Third Judges case

(i) Power of review was exercised and stood expended when the First Judges case was reviewed by a larger Bench in the Second Judges case. Union of India, conceded during the course of hearing of the Third Judges case, that it had accepted as binding, the decision rendered in the Second Judges case. Therefore, it is unjustified for the Union of India to try and reagitate the matter all over again.

(ii) Memorandum of Procedure, for selection of Supreme Court Judges, provides for a similar participatory role to the judiciary and the political-executive. It is not possible to accept, that in the procedure contemplated under the Second and Third Judges cases, Judges at their own select Judges to the higher judiciary, or that, the system of Imperium in Imperio has been created for appointment of Judges to the higher judiciary.

(iii) It is also not acceptable, that the judgment in the Second Judges case has interfered with the process of selection and appointment of Judges to the higher judiciary, by curtailing the participatory role of the executive, in the constitutional scheme of checks and balances, in view of the role of the executive fully outlined.

(iv) Respondents wrongly contended, that the consultative process postulated between the President with the other Judges of the Supreme Court or the High Courts in the States, at the discretion of the President, had been done away with by the Second and Third Judges cases. It has been, and is still open to the President, in his unfettered wisdom, to the consultation indicated in Article 124 of Constitution.

(v) All the three wings of governance, have uniformly maintained, that while making appointments of Judges to the higher judiciary, "independence of the judiciary" was accepted as an integral component of the spirit of the Constitution.

(vi) The term "consultation" used in Article 124 of Constitution, had to be understood as vesting primacy with the judiciary, with reference to the subjects contemplated under Articles 124, 217 and 222.

(vii) Principle of "separation of powers" was expressly ingrained in the Constitution, which removes the executive from any role in the judiciary, the right of the executive to have the final word in the appointment of Judges to the higher judiciary, was clearly ruled out. And therefore, this Court on a harmonious construction of the provisions of the Constitution, in the Second and Third Judges cases, rightfully held, that primacy in the above matter, vested with the judiciary, leading to the inference, that the term "consultation" in the provisions under reference, should be understood as giving primacy to the view expressed by the judiciary, through the Chief Justice of India.

(viii) There is really no legitimate reason for the Respondents to seek a review of the judgments in the Second and Third Judges cases.

Scope of judicial review with reference to a constitutional amendment

(i) Article 368 of Constitution postulates only a "procedure" for amendment of the Constitution, and that, the same could not be treated as a "power" vested in the Parliament to amend the Constitution, so as to alter, the "core" of the Constitution, which has also been described as, the "basic features/basic structure" of the Constitution.

(ii) If a constitutional amendment breaches the "core" of the Constitution or destroys its "basic or essential features" in a manner which was patently unconstitutional, it would have crossed over forbidden territory. This aspect, would undoubtedly fall within the realm of judicial review.

(iii) Constitution (99th Amendment) Act, as also, the NJAC Act, would be subject to judicial review on the touchstone of the "basic structure" of the Constitution, notwithstanding, approval and unanimously passage by an overwhelming majority, and notwithstanding the ratification thereof by as many as twenty-eight State Assemblies.

Concept of Basic Features - As Limitation on Power of the Parliament to amend the Constitution

(i) Article 368 of the Constitution provides for power to amend the Constitution and procedure therefor.

(ii) The basic structure or framework was not exhaustively defined but some of the features of the Constitution were held to be the illustrations of the basic structure by the majority of seven Judges in Kesavananda Bharti v. State of Kerala MANU/SC/0445/1973.

(iii) Power of the Parliament to amend the Constitution was limited by the requirement that basic foundation and structure of the Constitution remains the same.

(iv) As a result of amendment, the old Constitution could not be done away with. Basic structure of framework must be retained. It was not permissible to touch the foundation or to alter the basic institutional pattern. What can be amended is the existing Constitution and what must emerge as a result of amendment is not a new and different Constitution but the existing Constitution. What was contemplated by amendment was varying of the Constitution here and there and not elimination of its basic structure resulting in losing its identity.

(v) The word 'amendment' postulated that the Constitution survived without loss of identity despite the change.

Collegium system of judicial appointments

(i) The process of consideration of a person for appointment as a judge is important both at a stage prior to the recommendation being made by the Chief Justice of India in consultation with his/her colleagues, constituting a 'collegium' and also after the recommendation is sent by the Chief Justice of India to the executive. At both stages, the process is participatory.

(ii) In the pre-recommendation stage, it is a participatory process involving the Chief Justice of India and his/her colleagues, constituting the collegium. It is at this stage that the Chief Justice of India takes the opinion of the other judges and anybody else, if deemed necessary. This stage also includes the participation of the executive because it is at this stage that the Chief Justice of India receives inputs from the executive about the frailties, if any, of a person who may eventually be appointed a judge.

(iii) In the post-recommendation stage also the process is participatory but primarily with the executive in the event the executive has some objection to the appointment of a particular person for strong and cogent reasons to be recorded in writing.

(iv) Therefore, when a person is considered for appointment as a judge, there is extensive and intensive participatory consultation within the judiciary before the Chief Justice of India actually recommends a person for appointment as a judge; and after the recommendation is made, there is consultation between the executive and the judiciary before the process is carried further.

(v) It was felt not necessary to dwell at length upon the correctness or otherwise of the procedure for the appointment of a judge as laid down in the Second Judges case and the Third Judges case. The question really was whether the change in the procedure of appointment of judges violates the basic structure of the Constitution. Can the Judiciary be independent if the appointment process is in the hands of the National Judicial Appointments Commission?

Constitution (99th Amendment) Act - Primacy of judiciary in decision making process

(i) The judiciary has to be manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour. There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also, in the matter of transfer of Chief Justices and Judges of High Courts, to other High Courts).

(ii) It is not possible to conclude, that the combination contemplated for constitution of the NJAC, is such that would not be susceptible to an easy breach of the "independence of the judiciary".

(iii) Articles 124A(1)(a) and (b) of Constitution do not provide for an adequate representation in the matter, to the judicial component, to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary. Therefore, same are liable to be set aside and struck down as being violative of the "basic structure" of the Constitution of India.

(iv) "Basic structure" of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC. Constitution (99th Amendment) Act, being ultra vires the "basic structure" of the Constitution, is liable to be set aside.

Legitimate power of reciprocity - Political-executive dispensation in judicial appointments

(i) Political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication. Reciprocity, and feelings of pay back to the political-executive, would be disastrous to "independence of the judiciary".

(ii) In this, the Court only reiterated the position adopted by Dr. B.R. Ambedkar, who feared, that with the participation of the political-executive, the selection of Judges, would be impacted by "political pressure" and "political considerations".

(iii) It is in this background, that it needs to be ensured, that the political-executive dispensation has the least nexus, with the process of finalization of appointments of Judges to the higher judiciary.

Separation of power - Participation of the Union Minister in charge of Law and Justice

(i) 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.

(ii) Consequent upon the participation of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support, may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role.

(iii) In the NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary. It may be difficult for Judges 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.

(iv) The above, would have the inevitable effect of undermining the "independence of the judiciary", even where such a plea is repulsed.

(v) 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 NJAC, would render the amended provision of Article 124A(1)(c) as ultra vires the Constitution, as it impinges on the principles of "independence of the judiciary" and "separation of powers".

Judicial appointments - International perspective

(i) In the process of evolution of societies across the globe, the trend is to free the judiciary from executive and political control, and to incorporate a system of selection and appointment of Judges, based purely on merit. For it is only then, that the process of judicial review will effectively support nation building.

(ii) The progressions of the concepts of "independence of the judiciary" and "judicial review" were now being recognized the world over. The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an obvious reality.

(iii) The participation of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none-the Leader of the single largest Opposition Party in the House of the People), in the selection of "eminent persons", would be a retrograde step, and cannot be accepted.

NJAC model of judicial appointments - Role of two "eminent persons"

(i) The two "eminent persons" comprise of 1/3rd strength of the NJAC, and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC.

(ii) Issue of description of the qualifications (perhaps, also the disqualifications) of "eminent persons" is of utmost importance, and cannot be left to the free will and choice of the nominating authorities, irrespective of the high constitutional positions held by them.

(iii) Article 124A(1)(d) of Constitution 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 for having left the same vague and undefined.

(iv) It is also difficult to appreciate the wisdom of the Parliament, to introduce two lay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto.

(v) 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.

(vi) In the scheme of the selection process of Judges to the higher judiciary, contemplated under the Constitution (99th Amendment) Act read with the NJAC Act, the two "eminent persons" are sufficiently empowered to reject all recommendations, just by themselves.

(vii) 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 recommendation of the entire judicial component of the NJAC.

(viii) The vesting of such authority in the "eminent persons", is clearly unsustainable, in the scheme of "independence of the judiciary". Vesting of such authority on persons who have no nexus to the system of administration of justice is clearly arbitrary.

Procedure to be followed by the NJAC could not have been legislated upon by the Parliament, till the Constitution was amended

(i) Constitution (99th Amendment) Act, amended Articles 124 and 217 (as also, Articles 127, 128, 222, 224, 224A and 231), and Articles 124A to 124C were inserted in the Constitution.

(ii) While engineering the above amendments, the procedural requirements contained in Article 368 of Constitution were admittedly complied with. It is therefore apparent, that no procedural lapse was committed while enacting the Constitution (99th Amendment) Act.

(iii) Article 124C of Constitution, authorized the Parliament to enact a legislation in the nature of the NJAC Act. This could validly be done, by following the procedure contemplated for an ordinary legislation. Such procedure, as was contemplated for enacting an ordinary legislation, had indeed been followed by the Parliament, after the NJAC Bill was tabled in the Parliament, inasmuch as, both Houses of Parliament approved the NJAC Bill by the postulated majority, and thereupon, the same received the assent of the President on 31.12.2014. For the above reasons, the instant additional submission advanced by the Petitioners, cannot also be acceded to, and is accordingly declined.

Vires of the provisions of the NJAC Act - Basic structure of the Constitution

(i) It was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India, in uncertain and ambiguous terms. It was imperative to express, the clear parameters of the term "fit", with reference to the senior most Judge of the Supreme Court under Section 5 of the NJAC Act.

(ii) Insofar as Section 5(2) of the NJAC Act is concerned, there cannot be any doubt, that consideration of Judges on the basis of their seniority, by treating the same as a primary consideration, would adversely affect the present convention of ensuring representation from as many State High Courts, as is possible.

(iii) The convention in vogue is, to maintain regional representation. For the reasons recorded above, the first proviso Under Section 5(2) is liable to be struck down and set aside.

(iv) Section 6(1) of NJAC Act applies to appointment of a Judge of a High Court as Chief Justice of a High Court. It has the same seniority connotation as has been expressed hereinabove, with reference to the first proviso Under Section 5(2) of NJAC Act. For exactly the same reasons as have been noticed above, based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court. Section 6(1) of the NJAC Act was therefore liable to meet the same fate, as the first proviso Under Section 5(2).

(v) Power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). Section 6(6) of the NJAC Act also breach the "basic structure" of the Constitution, with reference to the "independence of the judiciary" and the "separation of powers".

(vi) Section 8 of the NJAC Act, which provides for the Secretary to the Government of India, in the Department of Justice, to be the convener of the NJAC. 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 appointment of Judges to the higher judiciary, would breach the concepts of "separation of powers" and the "independence of the judiciary", which are both undisputedly components of the "basic structure" of the Constitution of India. For exactly the same reasons, Section 8 of the NJAC Act is not sustainable in law. In a body like the NJAC, the administrative functioning cannot be under executive or legislative control.

Effect of Striking Down the Impugned Constitutional Amendment

(i) When a legislature amends or repeals an existing provision, its action is of its own free will, and is premised on well founded principles of interpretation, including the provisions of the General Causes Act. Not so when an amendment/repeal is set aside through a judicial process. When a judgment sets aside, an amendment or repeal by the legislature, it is but natural that the status quo ante, would stand restored.

(ii) In case of setting aside of the Constitution (99th Amendment) Act, the provisions of the Constitution sought to be amended thereby, would automatically revive.

Jasti Chelameswar, J. (Dissenting Opinion)

(i) Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.

(ii) Assumption that primacy of the Judicial Branch in the appointments process is an essential element and thus a basic feature is empirically flawed without any basis either in the constitutional history of the Nation or any other and normatively fallacious apart from being contrary to political theory.

(iii) 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 volteface. 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 enhance the credibility of the institution or good for the people of this country.

(iv) To hold that Executives should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy whose models were examined by the Constituent Assembly and none other were brought to our notice either.

(v) He, therefore, upheld the vires of Constitution (99th Amendment) Act.

Conclusion:

(i) Prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases [MANU/SC/0073/1994 and MANU/SC/1146/1998], was rejected.

(ii) Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231.

(iii) Constitution (Ninety-ninth Amendment) Act, 2014 was declared unconstitutional and void.

(iv) National Judicial Appointments Commission Act, 2014, was declared unconstitutional and void.

(v) System of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (collegium system), was declared to be operative.

Important Precedents:

(i) S.P. Gupta v. Union of India MANU/SC/0080/1981

(ii) Supreme Court Advocates-on-Record Association v. Union of India MANU/SC/0073/1994

(iii) Re: Special Reference No. 1 of 1998 MANU/SC/1146/1998

(iv) Kesavananda Bharti v. State of Kerala MANU/SC/0445/1973