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Petitioner
v.
Union of India
... Respondent
Contents
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
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.
ii.
iii.
iv.
v.
so?
16. The next few paragraphs elaborate on what this framework means and
applies it in the context of India:
i.
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.
ii.
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.
10
judicial
self-restraint
in
matters
beyond
the
Courts
11
and
disciplinary
control
over
judges
(short
of
12
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.
13
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.
14
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.
15
16
II.
Separation of Powers and Checks and Balances also form part of the
Basic Features of the Constitution
balances
in
the
Constitution
and
the
need
to
prevent
17
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 byproduct 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).
18
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.
19
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
20
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
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
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.
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.
24
is
an
essential
feature
of
the
Constitution
is
25
which
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.
arbitrary
decision-making,
while
maintaining
judicial
III.
judicial
independence,
separation
of
powers
and
27
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 earthshattering.
28
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
30
31
32
33
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.
35
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
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
and
inserted
Article
124A
thereafter,
which
leaves
the
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
39
40
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 shortlevy 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
41
42
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
43
44
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
45
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 feature of the Constitution.
46
occasions when the matter was heard, we found that the Union
Government had adopted the policy of reopening recommendations
even though the same had been cleared by the Chief Justice of India
on the basis that there had in the meantime been a change in the
personnel of the Chief Justice of the High Court or the Chief Minister
of the State. The selection of a person as a Judge has nothing
personal either to the Chief Justice of the High Court or the Chief
Minister of the State. The High Court is an institution of national
importance wherein the person appointed as a Judge functions in an
impersonal manner. The process of selection is intended to be totally
honest and upright with a view to finding out the most suitable
person for the vacancy. If in a given case the Chief Justice of the
High Court has recommended and the name has been considered by
the Chief Minister and duly processed through the Governor so as to
reach the hands of the Chief Justice of India through the Ministry of
Justice and the Chief Justice of India as the highest judicial
authority in the country, on due application of his mind, has given
finality to the process at his level, there cannot ordinarily be any
justification for reopening the matter merely because there has
been a change in the personnel of the Chief Justice or the Chief
Minister of the State concerned. We intend to make it clear that this
has to be the rule and the policy adopted by the Union of India as
has been indicated to us in Court by the learned Attorney General
should immediately be given up. In the functioning of public offices
there is and should be a continuity of process and action and all
objective decisions taken cannot be transformed into subjective
issues. That being the position, recommendations finalised by the
Chief Justice of India unless for any particular reason and
unconnected with the mere change of the Chief Justice or the Chief
Minister justifying the same should not be reopened and if in a given
case the Union of India is of the view that the matter requires to be
looked into again a reference should be made to the Chief Justice of
India and there can be a fresh look at the matter only if the Chief
Justice of India permits such a review of the case. In fact, as an
interim measure we had indicated that this should be the position
but we find that steps contrary to the expression of this opinion have
been taken. That is why we have found it necessary to restate the
opinion. Government shall take appropriate action in accordance
with this principle.
99. Interference by the executive leading to appointments on extraneous
grounds was a widespread view ever since the supersession of Justices
Shelat, Hegde and Grover for the post of Chief Justice of India by the
47
48
49
3.19. Since the inception of the Constitution, the office of the Chief
Justice of India was filled in by promotion of the next man according
to seniority. This principle was departed from in April 1973, when
the then Chief Justice of India demitted office on reaching the age
of superannuation but the Judge next in succession was not
promoted to the office of the Chief Justice of India. He and two
others were superseded and the Judge fourth in rank was promoted
as the Chief Justice of India. This was seen by the Bar as a threat to
the independence of the judiciary, by some as subversion of the
Constitution from within and a manifest attempt to undermine the
courts independence. Again, in January 1977, on the retirement of
Justice A.N. Ray, the next Judge according to seniority was passed
over and the Judge next to him was appointed as Chief Justice of
India, the controversy, reenacting the events of 1973, ensued.
3.20. The Government of India, recalling the earlier report of the
Law Commission on Judicial Administration defended its action
stating that succession to the office of the Chief Justice of India
cannot be regulated by mere seniority. The Commission had
recommended that a healthy convention should be set up that
appointment to the office of the Chief Justice rests on special
consideration and does not as a matter of course go to the seniormost puisne Judge. If such a convention was established, it would be
no reflection on the senior-most puisne Judge if he is not appointed
to the office of the Chief Justice. The Commission had also
recommended that such a convention must also be established in the
case of appointment of Chief Justice of a High Court. Once such a
convention is established, it will be the duty of those responsible for
appointment to choose a suitable person for that high office, if
necessary, from among persons outside the court.
3.21. It is during this controversy that a reference was made by the
then Law Minister and another Minister to the Government of India
to the social philosophy of the person to be considered for
appointment as the Chief Justice of India being in tune with one of
the Government of the day. This statement gave rise to a bitter
controversy and it was said that this is the starting point of setting
up a committed judiciary.
While contemplating the need for a new system:
7.1. Everyone is agreed that the present scheme or model or
mechanism for recruitment to superior judiciary has failed to deliver
the goods. Even the votaries of the effectiveness of the present
model
have conceded that defects and lacunae have come to
surface in the actual working of the scheme and that they were of
such character that they can be rectified without throwing
overboard the whole scheme. Efforts should, therefore, be made to
rectify the defects and plug the loopholes.' Add to that the views
50
100. This was supported by the Constitution (67th Amendment) Bill, 1990
introduced in the Lok Sabha by Law Minister Dinesh Goswami. The
Statement of Objects and Reasons appended to the Bill as reproduced
in the NCRWC Report stated that the object of the said amendment
was to obviate the criticisms on the part of the executive in such
appointments and transfers and also to make such appointments
without any delay. (Para 8.18, Consultation Paper on Superior
Judiciary, NCRWC)
101. It was in this backdrop that the Second Judges case read in primacy
of the Chief Justice of India into Article 124(2) and Article 217(1) of the
Constitution. It was thus devised as a method to protect judicial
independence in the particular political context of threats of excessive
executive interference in appointments. Such a method, derived in a
particular context to protect judicial independence cannot itself be
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of the countries surveyed does the judiciary enjoy any primacy in the
matter of appointments. Even in Italy, the chairperson of the CSM
(appointments commission) is the President who ultimately appoint
judges. In no country is participation of the executive per se or even its
dominant participation, opposed or frowned upon. Such lack of judicial
primacy is not seen as detracting from the existence of an independent
judiciary in any of these countries.
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
108. It has already been demonstrated that the intention of the framers of
the Constitution was to secure the independence of the judiciary.
However this did not extend to requiring primacy of the judiciary in the
matter of appointment. Individual independence of judges was sought
to be optimally protected by a method of appointment that involved
both the Executive as well as the Judiciary, with the ultimate act of
appointment being an executive act. Further, judges salaries could not
be diminished to their disadvantage and they could not be removed
except by impeachment. Institutional independence was protected by
vesting the Supreme Court and High Courts with primary power
(subject to Parliamentary oversight) to frame rules, as well as
managing their expenses which were to be charged on the Consolidated
Fund of India.
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110. This was echoed by Dr. BR Ambedkar, when he said, (27th May 1949,
Constituent Assembly Debates, vol. VIII, p. 397)
Sir, there is no doubt that the House in general, has agreed that
the independence of the Judiciary from the Executive should be
made as clear and definite as we could make it by law. At the same
time, there is the fear that in the name of the independence of the
Judiciary, we might be creating, what my Friend Mr. T. T.
Krishnamachari very aptly called an Imperium in Imperio. We do
not want to create an Imperium in Imperio, and at the same time we
want to give the Judiciary ample independence so that it can act
without fear or favour of the Executive.
111. It is thus clear that conceptually, for the founding fathers of the
Constitution, independence of the judiciary, which they were very
zealous of protecting, did not require primacy of judges in the process
of appointment. This provides further evidence to buttress the
proposition that primacy of the judiciary in appointment, both in other
jurisdictions, as well as originally conceived of in India, did not require
such primacy. Hence there is no necessary connection between having
an independent judiciary and having primacy of the higher judiciary in
appointment of judges.
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judiciary
without
judges
having
primacy
in
appointment.