Professional Documents
Culture Documents
Judgement 1
Judgement 1
JUDGMENT
Chelameswar, J.
1.
emancipation from the other two organs of the State. But have
we
developed
an
alternate
constitutional
morality
to
to
keep
us
in
control
from
abusing
such
outgrown
the
malady
of
dependence
or
merely
such
ethical
and
constitutional
disorder
that
for nepotism
464
465
3.
was
stipulated
by
memorandum
of
the
Government of India109.
After the AMENDMENT
4.
Articles 124 and 217 insofar as they are relevant for our
purpose read
Article 124 xxxxx
xxxxx
xxxx
(2)
Every Judge of the Supreme Court shall be appointed
by the President by warrant under his hand and seal on the
recommendation of the National Judicial Appointments
Commission referred to in article 124A and shall hold office until
he attains the age of sixty-five years.
Article 217 . Appointment and conditions of the office of a
Judge of a High Court (1) Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal on
the recommendation of the National Judicial Appointments
Commission referred to in article 124A, and shall hold office, in
109
The details of which are already noted in the judgment of my brother Khehar, J.
466
the case of an additional or acting Judge, as provided in article 224,
and in any other case, until he attains the age of sixty-two years.
5.
467
(c) ensure that the person recommended is of ability and
integrity.
124C. Parliament may, by law, regulate the procedure for the
appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts
and empower the Commission to lay down by regulations the
procedure for the discharge of its functions, the manner of selection
of persons for appointment and such other matters as may be
considered necessary by it.
468
Judges of High Courts and of recommending transfer of Chief Justices and other
Judges of High Courts from one High Court to any other High Court.
8.
made the ACT. For the present, suffice it to note that though
the amended text of the Constitution does not so provide,
Section 6(6)110 of the ACT provides that the NJAC shall not
recommend a person for appointment, if any two members of
the Commission do not agree for such recommendation.
10.
The
110
Section 6 (6). The Commission shall not recommend a person for appointment under this section if
any two members of the Commission do not agree for such recommendation.
469
mechanism
which
would
ensure
establishment
of
an
470
independent judiciary.
for
the
appointment
of
Judges
of
the
securing
an
independent
judiciary
or
can
there
be
alternatives?
If there can be alternatives, whether the mechanism ( NJAC)
sought to be established by the AMENDMENT transgresses
the boundaries of the constituent power?
14.
Alis view in S.P. Gupta v. Union of India & Ors. 111 AIR 1982 SC
149 (for short S.P. Gupta case) that the issue is irrelevant for
the masses and litigants.
111
Para 520. There is another fact of life which, however unpleasant, cannot be denied and this is that
precious little are our masses or litigants concerned with which Judge is appointed or not appointed or
which one is continued or not continued. The high sounding concept of independence of judiciary or
primacy of one or the other of the Constitutional functionaries or the mode of effective consultation are
matters of academic interest in which our masses are least interested. On the other hand, they are mainly
concerned with dangerous forces at work and evils reflected in economic-pressures, inflationary
tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing,
bread and butter, and above all the serious problem of unemployment,
521. It is only a sizeable section of the intellectuals consisting of the press and the lawyers who
have made a prestigious issue of the independence of judiciary. I can fully understand that lawyers or other
persons directly connected with the administration of justice may have a grievance however ill-founded that
proper selection of Judges or interference with the appointment of Judges strictly according to constitutional
provisions may mar the institution of judiciary and therefore they may to some extent be justified in
vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem
to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so
far as administration of justice is concerned they merely want that their cases should be decided quickly
by Judges who generate confidence.
of
such
enforceable
obligations.
To
generate
Notwithstanding
the
fact
that
they
are
fundamental values.
In the
112
20.
113
A 1720
In 1761 a statute
provided that commissions of the Judges shall remain in full force and effect during
good behaviour notwithstanding the demise of His Majesty or of any of his heirs and
114
judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and
established; but upon the address of both houses of parliament it may be lawful to remove them.
This clause has been repealed by ____
successors
According to
Blackstone,
(I) In this distinct and separate existence of the judicial power in a
peculiar body of men, nominated indeed, but not removable at
pleasure by the Crown, consists one main preservative of the public
liberty which cannot subsist long in any State unless the
administration of common justice be in some degree separated
both from the legislative and from the executive power.115
23.
that Judges of the Supreme Court and also the inferior Courts
established by Congress shall hold their office during good
behavior and they cannot be removed except through the
process of impeachment117. It also stipulates that they shall
receive a compensation for their services which shall not be
diminished during their continuance in office.
24.
Sir William Blackstones, Commentaries on the Laws of England, (1765) Vol. I p. 269
116
Article III Section I. The judicial power of the United States, shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished during their continuance in
office.
117
Article II Section 4. The President, Vice President and all civil officers of the United States, shall be
removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors.
118
Section 72. Judges' appointment, tenure, and remuneration:
The Justices of the High Court .
(ii) shall not be removed except on an address from both Houses of the Parliament
in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix; but the remuneration
shall not be diminished during their continuance in office.
The British North America Act, 1867 renamed by the Amendment in 1982 as the Constitution Act, 1867
Commonwealth of Australia Constitution Act, 1900.
The existing constitution and organization of constitutional courts in this country is discussed in some
detail by Justice Verma in the Second Judges case at paras 444, 445, 446.
444. The Government of India Act, 1919 provided in Section 101 for the Constitution of High
Courts; and the appointment of the Chief Justice and the permanent Judges was in the absolute discretion of
the Crown, subject only the prescribed conditions of eligibility. The tenure of their office, according to
Section 102, was dependent entirely on the Crowns pleasure.
xxxxx
xxxxxx
xxxxxx
xxxxx
445. Then, in the Government of India Act, 1935, provision for the establishment and Constitution
of the Federal Court was made in Section 200, while the Constitution of High Courts was provided for in
Section 220.
xxxxx
xxxxxx
xxxxxx
xxxxx
446. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal
Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive,
with no specific provision for consultation with the Chief Justice in the appointment process.
II.
the
termination
of
judicial
appointment
(during
Constitution
prescribes
that
Judge
of
except
by
following
an
elaborate
procedure
of
123
L Chandra Kumar & Ors v. Union of India & Ors., (1997) 3 SCC 261, para 78
Article 124(4) A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two thirds of the members of that House
present and voting has been presented to the President in the same session for such removal on the ground
203 (1) - So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a
State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be
construed as preventing the discussion in the Legislature of any of those estimates.
29.
fact that the State has the legal authority to make laws
including the laws that determine the process of selection of
judges and their service conditions can pose the greatest
threat to the independence of the judiciary if such law making
authority is without any limitations. Therefore, extraordinary
safeguards to protect the tenure and service conditions of the
members of the judiciary are provided in the Constitution; with
a fond hope that men and women, who hold judicial offices so
protected will be able to discharge their functions with
absolute independence and efficiency.
30.
Fali S. Nariman, Before Memory Fades: An Autobiography, [First Edition Hay House (2010 ),
p.348 ]
I once knew a fine, independent judge in South Africa during the days of apartheid JudgePresident John Milne of the Natal Supreme Court. We used to correspond, and Milne said something
similar. Milne wrote to me on one occasion (in despair) :
It seems that however much they may pay lip service to the idea that the Judiciary
is totally independent of the Executive, politicians throughout the ages and throughout the
world would actually much prefer to have executive minded lackeys and are considerably
irritated by independent Judges functioning in an independent manner.
Usually
such men are only loyal to power but not to the benefactor.
31.
appointment
of
Judges,
democracies
all
over
the
such
aberrations
world
have
are
avoided,
adopted
different
The
Insofar as the
model.
Article II Section 2
The President shall have power to .. nominate and by and with the advise and consent of the
Senate .. appoint .. Judges of the Supreme Court ..
In the case of the appointment of Judges of the other Statutory Federal Courts, the Congress
can by law entrust the power to the Supreme Court itself.
131
The Federal Legislature of America is called the Congress of the United States consisting of two
chambers Senate and House of Representatives.
132
Section 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time
provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and
for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
It is in exercise of such
Judges of the
133
134
Australian Constitution.
in
India,
It has no written
constitution
as
US,
Canada
and
Australia.
The text of
(emphasis supplied)
The following are salient features of Dr. Ambedkars statement:
1.
2.
(a)
Requiring
concurrence
of
the
Chief
Recall the words of Jackson, J. in Sacher v. United States 343 US 1 (1952) Men who make their way to
the Bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which
human flesh is heir.
(c)
it
imprudent
to
confer
on
the
President.
4.
ensure
competence
requisite
of
the
arrangements would
independence
judiciary
and
and
such
moment.
39.
controversy.
This
Court
in
Supreme
Court
Para 371
(iii) All the appointments to the Supreme Court from 1950 to 1959 were made
with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to
the High Courts during that period were also with the concurrence of the Chief Justice of
India.
(iv)
Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor
of the Parliament on November 24, 1959 that appointment of Judges were virtually being
made by the Chief Justice of India and the Executive was only an order - issuing
authority.
(v)
Mr. Ashok Sen, the Law Minister reiterated in the Parliament on
November 25,1959 that almost all the appointments made to the Supreme Court and the
High Courts were made with the concurrence of the Chief Justice of India.
(vi)
Out of 547 appointments of Judges made during the period January 1,
1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the
Chief Justice of India.
138
The matter,
Four
separate
judgments
were
delivered
by
41.
Justice Bhagwati, was entirely in agreement with what has been said by
42.
Fazal Ali.
43.
matter
opined
that
there
was
no
justification
for
It is a matter of
Per Fazal Ali, J. S.P. Gupta case, p.403 - It is true that there were, quite a few transfers during the
emergency which were not in consonance with the spirit of Article 222 and that is why the Government had
conceded this fact and took steps to revoke the transfers by retransferring, almost all the Judges to the High
Courts from where they had been transferred.
Chief
45.
147
relatively stagnant.
and complex.
emboldened
by
judgments
of
this
Court
in
148
Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page 586 :
Para 18. We gather that the Kerala High Court where the sanctioned strength has been reduced
by 2, has a sanctioned strength of 22 while its pendency as on January 1, 1990 being 34,330 cases justifies a
Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year. We intend to
indicate that there was no justification for reduction of the sanctioned strength.
149
Para 19. For the present we suggest to government that the matter should be reviewed from time to
time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of
the existing need. If there be no correlation between the need and the sanctioned strength and the provision
of Judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish
enforcement of the Rule of Law.
Selecting Judges for the Supreme Court of India 150 records some
as
acting
Chief
Justices,
were
made
A particular Additional
notwithstanding
the
recommendations
for
his
delivered
judgment
not
palatable
to
the
State
between the Government and the CJI and the record of the
consultation process are some of the best guarded secrets of
this country.
47.
The
151
As a
From 1978, Governments at the State level and the Union level ceased to be necessarily of the same
political party. Regional parties in parts of the country had captured power putting an end to one party rule
at both the levels.
48.
Justice
One proposition on
The point of
152
Para 421 - These questions have to be considered in the context of the independence of the judiciary, as
a part of the basic structure of the Constitution, to secure the rule of law, essential for the preservation of
the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with
the directive principle of separation of judiciary from executive even at the lowest strata, provides some
insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the
judiciary. The construction of these provisions must accord with these fundamental concepts in the
constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution
as a vibrant organism.
regarding
the
mode
by
which
the
establishment
and
insulated
from
vagaries
of
transient
and
shifting
Legislatures
have
absolutely
no
role
in
matters
Article 50. Separation of judiciary from executive The State shall take steps to separate the
judiciary from the executive in the public services of the State.
154
Form of oath or affirmation to be made by the Judges of the Supreme Court and the
Comptroller and Auditor-General of India:
I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or
Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and
solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge
and judgment perform the duties of my office without fear or favour, affection or illwill and that I will
uphold the Constitution and the laws.
155
this country.
Prior to the
Article 124(5). Parliament may by law regulate the procedure for the presentation of an address and for
the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
157
Article 124(4). A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two thirds of the members of that House
present and voting has been presented to the President in the same session for such removal on the ground
of proved misbehaviour or incapacity.
Articles 124 and 217, as the case may be. Consultation with
the CJI was mandatory for the appointment of Judges of all
CONSTITUTIONAL COURTS. Consultation with the Chief Justices
(per Hon. Pandian, J.) - Para 49. one other basic and inseparable vital condition is absolutely
necessary for timely securing the independence of judiciary; and that concerns the methodology followed in
the matter of sponsoring, selecting and appointing a proper and fit candidate to the (Supreme Court or High
Court) higher judiciary. The holistic condition is a major component that goes along with other
constitutionally guaranteed service conditions in securing a complete independence of judiciary. To say
differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of
the increasingly important condition in regard to the method of appointment of judges and, secondly,
protected by the fulfilment of the rights, privileges and other service conditions. The resultant inescapable
conclusion is that only the consummation or totality of all the requisite conditions beginning with the
method and strategy of selection and appointment of judges will secure and protect the independence of the
judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire
judicial system will explode which in turn may cripple the proper functioning of democracy and the
philosophy of this cherished concept will be only a myth rather than a reality.
(per Hon. Kuldip Singh, J.) Para 335. Then the question which comes up for consideration is,
can there be an independent judiciary when the power of appointment of judges vests in the
executive? To say yes, would be illogical. The independence of judiciary is inextricably linked and
connected with the constitutional process of appointment of judges of the higher judiciary. Independence of
Judiciary is the basic feature of our Constitution and if it means what we have discussed above, then the
Framers of the Constitution could have never intended to give this power to the executive. Even otherwise
the Governments Central or the State are parties before the Courts in large number of cases. The
Union Executive have vital interests in various important matters which come for adjudication before the
Apex Court. The executive in one form or the other is the largest single litigant before the courts. In
this view of the matter the judiciary being the mediator between the people and the executive the
Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme
Court and of the High Courts in the hands of the executive.
(per Hon. Verma, J.) Para 447. When the Constitution was being drafted, there was
general agreement that the appointments of Judges in the superior judiciary should not be left to the
absolute discretion of the executive, and this was the reason for the provision made in the Constitution
imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This
was done to achieve independence of the Judges of the superior judiciary even at the time of their
appointment, instead of confining it only to the provision of security of tenure and other conditions of
Consultation with
The Constituent
Such a
However, Justice
[emphasis supplied]
53.
[emphasis supplied]
54.
There
are
conflicting
opinions 159
regarding
the
an
independent
and
efficient
judiciary
the
159
See the articles of Lord Templemans favourable opinion and the critical view of Lord Cooke of
Thorndon published in the book titled Supreme but not Infallible Oxford University Press
2000 A.D.
Article 124 of the Constitution empowers the President (acting on the advice of the
Prime Minister and Cabinet) to appoint the judges of the Supreme Court. The President is given a
discretion about consulting judges of the Supreme Court and High Courts but in the case of
appointments of a Judge other than the Chief Justice, the Chief Justice of India shall always be
consulted. Similarly, Article 217 requires the Chief Justice of India to be consulted concerning the
appointment of a judge of the High Court of a state. In 1993, in the Supreme Court Advocates on
Record Association case the Supreme Court by a majority held that, having regard to the
independence of the judiciary and the separation of powers which the Court held to be implicit in
the Constitution, the views of the Chief Justice of India expressed when he was consulted must be
supreme. The Court also laid down guidelines governing the appointment and duration of office of
temporary acting judges. The majority decision has been criticized as an extension of the meaning
of the word consultation. However, having regard to the earlier experience in India of attempts by
the executive to influence the personalities and attitudes of members of the judiciary, and having
regard to the successful attempts made in Pakistan to control the judiciary and having regard to the
unfortunate results of the appointment of Supreme Court judges of the United States by the
President subject to approval by Congress, the majority decision of te Supreme Court of India in the
Advocates on Record case marks a welcome assertion of the independence of the judiciary and is
the best method of obtaining appointments of integrity and quality, a precedent method which the
British could follow such advantage.
---Lord
Templeman
All in all, the opinion of the Supreme Court in the third Judges case must be one of the
most remarkable rulings ever issued by a supreme national appellate court in the coomon law world.
Since, in some respects, I have had to voice respectful doubts about the soundness of the
constitutional foundations of that opinion.
---- Lord Cooke of Thorndon
57.
inference that can be drawn is that the law laid down by the
Second Judges case was not faithfully followed by the
successive Chief Justices, if not in all at least in some cases
attracting
comments.
Instead
of
Ministers,
Judges
patronised.160
58.
Two events are part of the record of this Court and can be
Iyer, V.R. Krishna, Judiciary : A reform agenda II, The Hindu (online edition)
15.08.2002
161
An Independent Judiciary speech delivered by Ms. Justice Ruma Pal at the 5 th V.M. Tarkunde
Memorial Lecture on 10th November 2011.
As I have said elsewhere the process by which a judge is appointed to a superior court is one of
the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of
information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance
remark, a rumour or even third-hand information may be sufficient to damn a judges prospects.
Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus
within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with
disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional
independence has also been compromised by growing sycophancy and lobbying within the system.
The
dispute
in
Shanti Bhushan
case
(supra)
was
Even the
Shanti Bhushan (supra) - Para 2. The primary ground urged is that the opinion of the Chief Justice of
India has to be formed collectively after taking into account the views of his senior colleagues who are
required to be consulted by him for the formation of opinion and no appointment can be made unless it is in
conformity with the final opinion of the Chief Justice of India formed in the aforesaid manner. . It is,
therefore, submitted that the appointment of Respondent No.2 as a permanent Judge as notified on 2.2.2007
has no sanctity in law.
Justice should have stuck to the view expressed by the collegium and
should not have been swayed by the views of the Government to
recommend extension of the term of Respondent 2 for one year; as it
amounts to surrender of primacy by jugglery of words.
[emphasis supplied]
Even if I choose to ignore the controversial statements made
(in the recent past) with regard to the appointment in question
in the case, by persons who held high constitutional offices
and played some role in the appointment process including
former Members of this Court, the judgment leaves sufficient
scope for believing that all did not go well with the
appointment. It appears to have been a joint venture in the
subversion of the law laid down by the Second and Third
Judges cases by both the executive and the judiciary which
neither party is willing to acknowledge.
61.
On the
62.
Third
Judges
cases
in
making
the
ill-fated
Both branches of
At least a
The
impugned
the
AMENDMENT
came
in
the
backdrop
of
above-mentioned experience.
64.
163
Mehta, Pratap Bhanu, Whom do you trust, The Indian Express, May 14, 2015 The implicit constitutional
accusation is this. The judiciary had, through improvisation, created a method of appointing judges that effectively
sidelined other branches of government. This arrangement was tolerated, not because it conformed to a constitutional
text or some hallowed principle, but because it seemed to maintain judicial independence. The experience of the 1970s
made the prospect of political packing of the judiciary a live fear. This arrangement is being challenged, not because we
have discovered a new principle, but because the credibility of the judiciary has declined. We are, in effect, saying that
any arrangement that relies solely on the judiciary has proved untrustworthy. Those challenging the NJAC are relying
on the ghost of the 1970s: Do you really want the political class to have a greater say in appointments? Both branches of
government are accusing each other of not being worthy of trust. In the process, they have dragged each other down.
The problem is that both are right.
[emphasis supplied]
None of the
Constitution
seeks
to
establish
and
nurture
an
164
65.
necessary
to
establish
appointment process.
an
independent
judiciary
the
matter
of
the
judicial appointments.
The probable
Various
Constitution.
166
On 24th May 1949 while draft Article 103 of the draft Constitution was being discussed corresponding to
present Article 124, four members, Prof. Shibban Lal Saksena and Prof. K.T. Shah, who represented the
United Provinces of Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who represented
Madras Provinces suggested amendments to Article 103, the relevant portions of which read as follows:
Prof. Shibban Lal Saksena:
That for clause (2) of article 103, the following clauses be substituted(2)
The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be
appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint
session of both the Houses of Parliament.
Prof. K.T. Shah:
Every judge of the Supreme Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Council of States and such of the judges of the Supreme Court and of
the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the
age of sixty-five years.
Mr. B. Pocker Sahib:
That for clause (2) and the first proviso of clause (2) of article 103, the following be substituted(2)
Every judge of the Supreme Court other than the Chief Justice of India shall be appointed
by the President by warrant under his hand and seal after consultation with the concurrence of the Chief
Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his
hand and seal after consultation with the judges of the Supreme Court and the Chief Justices of the High
Court in the States and every judge of the Supreme Court.
Mr. Mahboob Ali Beig Sahib:
That in the first proviso to clause (2) of article 103, for the words the Chief Justice of India shall
always be consulted the words it shall be made with the concurrence of the Chief Justice of India be
substituted.
68.
necessary:
(1)
of
basic
structure
and
basic
features
originated.
(2)
(4)
(5)
(6)
70.
the
Constitution.
That
question
arose
in
the
A Constitutional
168
are
amenable
to
the
amendatory
power
of
the
171
(Per Sikri, CJ) Para 292, fundamental rights cannot be abrogated but reasonable abridgements
of fundamental rights can be effected in public interest. That every provision of the Constitution can
be amended provided in the result the basic foundation and structure of the Constitution remains the
same. The basic structure may be said to consist of the following features:
(1)
(2)
(3)
(4)
(5)
(Per Shelat, J. who spoke for himself and Grover, J.) Paras 582, 583, there can be no difficulty
in discerning that the following can be regarded as the basic elements of the constitutional structure. These
cannot be catalogued but can only be illustrated:
(1)
The supremacy of the Constitution.
(2)
Republican and Democratic form of government and sovereignty of the country.
(3)
Secular and federal character of the Constitution.
(4)
Demarcation of power between the Legislature, the executive and the judiciary.
(5)
The dignity of the individual secured by the various freedoms and basic rights in
Part III and the mandate to build a welfare State contained in Part IV.
(6)
The unity and the integrity of the Nation.
and, therefore, the power under Article 368 is wide enough to permit amendment of each and
every article so long as its basic elements are not abrogated or denuded of their identity.
(Per Hegde, J, who also spoke for Mukherjea, J.) Para 666, Parliament has no power to abrogate
or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of
India, the democratic character of our polity, the unity of the country, the essential features of the individual
freedoms secured to the citizens. and mandate to build a welfare State and egalitarian society.
(Per P. Jaganmohan Reddy, J.) paras 1159, 1162, A sovereign democratic republic.
Parliamentary democracy, the three organs of the State constitute the basic structure. He further
held that without either the fundamental rights or directive principles it cannot be democratic
republic. Therefore, the power of amendment under Article 368 .. is not wide enough to totally abrogate
.. any one of the fundamental rights or other essential elements of the basic structure of the
Constitution and destroy its identity.
(Per Khanna, J.) para 1426,, the power under Article 368 does not take within its sweep the
power to destroy the old Constitution means the retention of the basic structure or framework of
the old Constitution it is not permissible to touch the foundation or to alter the basic institutional
pattern. According to Justice Khanna, such limitations are inherent and implicit in the word
amendment.
but such power does not enable Parliament to alter the basic structure or
framework of the Constitution.172
72.
172
See the summary of the majority of the judgment signed by 9 Judges, p. 1007 of (1973) 4 SCC 225.
[emphasis supplied]
73.
Again in Waman Rao & Ors. etc. etc. v. Union of India &
[emphasis supplied]
By then Justice Chandrachud had already expressed his
opinion in Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC
1 as follows:
663. There was some discussion at the Bar as to which features
of the Constitution form the basic structure of the Constitution
according to the majority decision in the Fundamental Rights case.
That, to me, is an inquiry both fruitless and irrelevant. The ratio of
the majority decision is not that some named features of the
Constitution are a part of its basic structure but that the power
of amendment cannot be exercised so as to damage or destroy
the essential elements or the basic structure of the Constitution,
whatever these expressions may comprehend.
[emphasis supplied]
elements
It was argued
A Constitution
75.
The judgment in Indira Nehru Gandhi case (supra) is neatly summarised by Chandrachud, J. in Waman
Rao case at para 15:
15. in Indira Gandhi v. Raj Narain Article 329-A(4) was held by the Court to be
beyond the amending competence of the Parliament since, by making separate and special
provisions as to elections to Parliament of the Prime Minister and the speaker, it destroyed the
basic structure of the Constitution. Ray, C.J. based his decision on the ground that the 39th
Amendment by which Article 329-A was introduced violated the Rule of Law (p. 418) (SCC p.
44); Khanna, J. based his decision on the ground that democracy was a basic feature of the
Constitution, that democracy contemplates that elections should be free and fair and that the clause
in question struck at the basis of free and fair elections (pp. 467 and 471) (SCC pp. 87 and 91);
Mathew, J. struck down the clause on the ground that it was in the nature of legislation ad
hominem (p. 513) (SCC p. 127) and that it damaged the democratic structure of the Constitution
(p. 515) (SCC p. 129); while one of us, Chandrachud, J., held that the clause was bad because it
violated the Rule of Law and was an outright negation of the principle of equality which is a basic
feature of the Constitution (pp. 663-65) (SCC p. 257).
174
Para 13. The question which we have to determine on the basis of the majority view in Kesavananda
Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment)
Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or
essential elements.
[emphasis supplied]
The Court finally reached the conclusion that the Parts III and
IV of the Constitution are like two wheels of a chariot both
equally important and held:
56.
.. To give absolute primacy to one over the other is to
disturb the harmony of the Constitution. This harmony and
balance between the fundamental rights and directive principles
is an essential feature of the basic structure of the
Constitution.
[emphasis supplied]
This Court concluded that the amendment to Article 31C is
destructive of the basic structure as it abrogated the protection
of Article 14 & 19 against laws which fall within the ambit of
the description contained in Article 31C.
77.
[emphasis supplied]
175
Para 31. For these reasons, we are of the view that the Amendment introduced by Section 4 of the
Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the
Constitution. The Amendment must, therefore, be upheld on its own merits.
78.
of
Articles
Constitution.
can
constitute
basic
feature
of
the
It all
79.
80.
See paras 25 to 29 Ahmadi, J., para 145 Sawant, J., paras 183 to 186 Ramaswamy, J., para 304
Jeevan Reddy, J.
177
In this case, this Court had to decide the validity of the Constitution (Eighty Fifth) Amendment Act 2001
by which Article 16(4A) was amended in the Constitution with retrospective effect. It provided a rule of
reservation in the context of the promotion in the Government service. Such an amendment was challenged
to be violative of the basic structure of the Constitution.
part of constitutional law even if they are not expressly stated in the
form of rules. An instance is the principle of reasonableness which
connects Articles 14, 19 and 21. Some of these principles may be
so important and fundamental, as to qualify as essential features
or part of the basic structure of the Constitution, that is to say,
they are not open to amendment. However, it is only by linking
provisions to such overarching principles that one would be able to
distinguish essential from less essential features of the Constitution.
24.
The point which is important to be noted is that principles
of federalism, secularism, reasonableness and socialism, etc. are
beyond the words of a particular provision. They are systematic
and structural principles underlying and connecting various
provisions of the Constitution. They give coherence to the
Constitution. They make the Constitution an organic whole. They
are part of constitutional law even if they are not expressly stated in
the form of rules.
25.
For a constitutional principle to qualify as an essential
feature, it must be established that the said principle is a part of the
constitutional law binding on the legislature. Only thereafter, is the
second step to be taken, namely, whether the principle is so
fundamental as to bind even the amending power of Parliament i.e.
to form a part of the basic structure. The basic structure concept
accordingly limits the amending power of Parliament. To sum up:
in order to qualify as an essential feature, a principle is to be
first established as part of the constitutional law and as such
binding on the legislature. Only then, can it be examined whether
it is so fundamental as to bind even the amending power of
Parliament i.e. to form part of the basic structure of the
Constitution. This is the standard of judicial review of
constitutional amendments in the context of the doctrine of basic
structure.
[emphasis supplied]
81.
[emphasis supplied]
82.
(ii)
(iii)
(iv)
(v)
total
of
the
basic
features
of
the
Constitution;
(vi)
83.
in
establishment
their
of
respective
an
spheres181;
independent
and
machinery182
the
for
84.
85.
example,
Article
326
Adult
It is
87.
88.
It creates a
The
by
framers
of
the
Constitution
for
ensuring
Such shift of
independent.
91.
Second and Third Judges cases are not based purely on the
interpretation of the text of the Constitution as it stood prior to
the impugned AMENDMENT but also on the basis of a
for
appointment
CONSTITUTIONAL COURTS
of
the
Judges
of
the
Commission
but
with
slightly
different
The National Commission to Review the Working of the Constitution (NCRWC), 2002 chaired by
Justice M.N. Venkatachaliah
184
7.3.7 The matter relating to manner of appointment of judges had been debated over a decade. The
Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced on 18 th May, 1990 (9th Lok Sabha)
providing for the institutional frame work of National Judicial Commission for recommending the
appointment of judges to the Supreme Court and the various High Courts. Further, it appears that latterly
there is a movement throughout the world to move this function away from the exclusive fiat of the
executive and involving some institutional frame work whereunder consultation with the judiciary at some
level is provided for before making such appointments. The system of consultation in some form is already
to
Mr.
Nariman
the
model
identified
by
given
by
recommendations
the
of
Union
the
of
Justice
India
M.N.
explaining
why
Venkatachaliah
1.
The Chief Justice of India
Chairman
Two senior most judges of the Supreme Court:
Member
3
The Union Minister for Law and Justice:
Member
4
One eminent person nominated by the President after consulting the CJI
Member
The recommendation for the establishment of a National Judicial Commission and its
composition are to be treated as integral in view of the need to preserve the independence of the judiciary.
cannot
abrogate
Constitution.
the
The
basic
structure
AMENDMENT
in
of
the
no
way
is
in
contravention
of
some
other
express
Absent such
In the case of a
on
the
three
great
branches
of
most
basic
constitutions.
the
three
feature
is
values
and
Constitution.
all
democratic
branches
democratic
of
inconsistent
the
with
scheme
of
core
our
AMENDMENT
disturbed
such
balance.
The
and
also
the
correctness
of
the
are
contrary
to
the
text
of
the
of
the
constitutional
history
and
that
under
the
scheme
of
the
disguise
of
interpretation.
Under
the
Parliament exercising
and
amongst
the
three
members
question.
the
opportunity
of
packing
the
The presence of
by
constituent
the
Parliament
powers
cannot
in
be
The model
exercise
held
of
its
to
be
of
some,
there
are
better
models
or
of
as
94.
Any
appointment
process
established
under
the
[emphasis supplied]
Judges who
before them
General,
the
history
of
appointments
to
No doubt
Allegations of seriously
95.
Parliament
representing
the
majoritarian
will
was
exercise
of
its
constituent
power
and
concomitant
AMENDMENT
transgresses
the
permissible
limits
of
96.
97.
judicial
appointments
is
not
the
only
means
for
the
99.
does not depend upon who proposes the name nor the
candidates
political
association,
if
any,
should
be
disqualification.
, even party men can be fiercely independent after being
appointed judges, as has been proved by some judges who were
Sudhanshu Ranjan, Justice, Judocracy and Democracy in India : Boundaries and Breaches, p.185-186
At least that
model,
primary
responsibility
Under any
to
preserve
reposed and the fear of losing the glory of being the chosen
representative. An in built possibility in the system of periodic
elections.
102. To assume or assert that judiciary alone is concerned
with the preservation of liberties and does that job well, is an
assumption that is dogmatic, bereft of evidentiary basis and
Judgments in A.K.
Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11
A.K. Gopalan v. State of Madras AIR 1950 SC 27
190
Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193
191
ADM Jabalpur Vs. S.S. Shukla Etc. Etc. AIR 1976 SC 1207
189
104. I now deal with the submission that presence of the law
minister in the NJAC undermines independence of judiciary.
According to the petitioners, the presence of a member of the
Executive invariably has the effect of shifting the power
dynamics.
control
is
capable
of
making
enormous
and
valuable
To wholly eliminate
Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2 of Chapter 1 Approaches to
Constitutional Analysis - That all lawful power derives from the people and must be held in check to
preserve their freedom is the oldest and most central tenet of American constitutionalism. At the
outset, only a small number of explicit substantive limitations on the exercise of governmental authority
were thought essential; in the main, it was believed that personal freedom could be secured more effectively
by decentralization than by express command. From the thought of seventeenth century English liberals,
particularly, as elaborated in eighteenth century France by Montesquieu, the Constitutions framers had
derived the conviction that human rights could best be preserved by inaction and indirection-shielded
behind the lay of deliberately fragmented centers of countervailing power, in a vision almost
Newtonian in its inspiration. In this first model, the centralized accumulation of power in any man or
single group of men meant tyranny; the division and separation of powers, both vertically (along the
axis of federal, state and local authority) and horizontally (along the axis of legislative, executive and
judicial authority) meant liberty. It was thus essential that no department, branch, or level of
government be empowered to achieve dominance on its own. If the legislature would punish, it must
enlist the cooperation of the other branches-the executive to prosecute, the judicial to try and convict. So
too with each other center of governmental power; exercising the mix of functions delegated to it by the
people in the social compact that was the Constitution, each power center would remain dependent
upon the others for the final efficacy of the social designs.
that
exclusion
of
the
Executive
Branch
is
Article 124A. National Judicial Appointments Commission.- (1) There shall be a Commission to be
known as the National Judicial Appointments Commission consisting of the following, namelyxxx
xxx
xxx
xxx
(d)
two eminent persons to be nominated by the committee consisting of the Prime Minister,
the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such
Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the
People-Members.
Provided that one of the eminent person shall be nominated from amongst the persons belonging to
the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.
Provided further that an eminent person shall be nominated for a period of three years and shall not
be eligible for renomination.
106. Transparency
governance.
is
vital
factor
in
constitutional
[emphasis supplied]
195
An Independent Judiciary speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde
Memorial Lecture on 10.11.2011
196
Bachawat, J. in I.C.
[emphasis supplied]
In the final analysis, all power could be misused including
judicial power. The remedy is not to deny grant of power but
to structure it so as to eliminate the potential for abuse. The
power to nominate two eminent persons is conferred upon
three high constitutional functionaries the Prime Minister,
the Leader of the Opposition and the CJI.
It is elementary
Nonetheless,
It is, therefore,
would
bring
this
process
within
permissible
Nominees
inherent
and
implied,
having
regard
to
functional
experiences of the past, both pre and post Second Judges case.
the
prolixity
of
our
Constitution,
In the
participatory
Constitutions
evolution
of
political
enumerate
ideals
and
structural
governmental
practices .
arrangements
of
organ of the State. Within such limits, how the various organs
of the State ought to discharge their allocated functions is a
matter of detail, either to be provided by law or convention. All
written democratic Constitutions are full of abstract moral
commands!
subordinate
constitutional
legislation.
body
is
only
The
functioning
disciplined
by
of
any
appropriate
or
the
Chief
Ministers.
Performance
of
occasionally
concerns
of
public
personal
interest
preferences
resulting
in
outweighed
undesirable
since
it
does
not
lay
down
any
guidelines
Such a provision is
that
though
the
provision
is
not
part
of
the
prescribes
special
majority
for
sanctifying
the
For example,
In other
Court was that the exercise of powers under Article 356 was
inconsistent with two features of the Constitution, i.e. the
197
Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 166, Krishna Iyer, J.
20. The question of basic structure being breached cannot arise when we examine the vires of an
ordinary legislation as distinguished from a constitutional amendment.
The
people
following
different
religions
is
certainly
There is no
Court who are not lucky enough to become the Chief Justice of
India.
..J.
( J. Chelameswar )
New Delhi;
October 16, 2015.
198
Thomas Babington Macaulays address on 2nd March 1831 in the House of Commons on Parliamentary
Reforms