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IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION


WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association

Petitioner

v.

Union of India

... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA

PART III

Contents

F. CONSTITUTIONAL VALIDITY OF THE 99th AMENDMENT IN LIGHT OF THE


PROPOSITIONS ADVANCED ................................................................... 1
I. The lack of an absolute majority of judges on the NJAC cannot be held
violative of the basic structure of the Constitution. In any event, the judiciary
is the single largest organ represented on the NJAC ................................ 1
a. The 99th Amendment sets up the NJAC, a broad-based collegiate body
comprising three judges including the Chief Justice of India as its Chairperson 1
b. The absence of primacy of judicial opinion would not amount to abrogation
of the independence of the judiciary ......................................................................... 2
c. In any event, primacy accorded to judicial opinion by the Second Judges
case was not absolute ................................................................................................... 4
II. The presence of two eminent persons on the NJAC is necessary to
ensure participation of the general public, a key stakeholder of justice in the
appointment process to the higher judiciary and also ensure that the
appointments made reflect sufficient diversity ...................................... 9
a.

The infirmity with the term eminent persons as contended by the

petitioners must be of such a nature as to amount to emasculating the


independence of the judiciary thereby abrogating the basic structure of the
Constitution
Error!
Bookmark not defined.
b.The presence of two eminent persons serves important and vital purposes in
selecting judges for the higher judiciary .....................................................

III. The presence of the Union Minister for Law and Justice on the NJAC does
not affect the independence of the judiciary ...................................... 26
a. The Law Minister provides information about candidates that is available
only to the Executive .................................................................................................. 26

b. The Executive is a key stakeholder in the justice delivery system for which
it is accountable to Parliament ................................................................................. 29
c. The Law Minister ensures checks and balances in the process of appointing
judges ............................................................................................................................. 31
d. The presence of one member of the executive in a commission of six
members does not affect judicial independence ................................................... 32
e. The arguments of the petitioners on the noxious presence of the Law
Minister are based entirely on presumptions and supposition ............................. 35
IV. The setting up of the NJAC has two key advantages, viz., transparency
and accountability in the matter of appointments ................................ 38
a. Transparency and accountability in the matter of appointment of judges
are essential for the public to repose their confidence in the judiciary ........... 38
b. The setting up of the NJAC for the purpose of appointment of judges has the
advantage of bringing in transparency and accountability in the appointments
process thereby fulfilling the constitutional mandate of the citizens right to
know ............................................................................................................................... 41
V. Section 3 of the 99th Amendment inserting Article 124A(2) does not
abrogate the basic structure of the Constitution .................................. 46
a. Independence of the judiciary does not mean independence from
Parliamentary law ........................................................................................................ 50
b. Parliament has powers to enact laws governing various aspects relating to
the functioning of judiciary ....................................................................................... 53
c. The Parliament has the authority to enact laws laying down the suitability
criteria pertaining to the appointment and selection of judges of the Supreme
Court and High Courts ................................................................................................. 56
G. SUMMARY OF SUBMISSIONS ........................................................... 61
Annexure VII: Extracted Provisions of UK Law..................................................62
Annexure VI: Comparative Chart on Judicial Appointments...................................79
Annexure VIII: List of Acts with Similar Provisions to Article 124A(2) inserted by the 99th
Amendment.....................................................................................94

Annexure III: Note on Historical Background on Constitutional Provision pertaining to the


Higher Judiciary in India.............................................................................101
Annexure IX: Memorandum Showing the Procedure for Appointment and Transfer of Chief
Justices and Judges of High Courts..........................................................178
Annexure X: Memorandum Showing the Procedure for Appointment of the Chief Justice of
India and Judges of the Supreme Court of India..............................................198

F. CONSTITUTIONAL VALIDITY OF THE 99th AMENDMENT IN LIGHT OF THE


PROPOSITIONS ADVANCED
I.

The lack of an absolute majority of judges on the NJAC cannot be


held violative of the basic structure of the Constitution. In any event,
the judiciary is the single largest organ represented on the NJAC

a. The 99th Amendment sets up the NJAC, a broad-based collegiate body


comprising three judges including the Chief Justice of India as its
Chairperson

1. The NJAC is a broad-based collegiate body representing key


stakeholders who can contribute fruitfully to the selection of the
best candidates for judicial office. As stated in the Statement of
Objects and Reasons of the 99th Amendment,
The proposed Bill seeks to broad base the method of
appointment of Judges in the Supreme Court and High Courts,
enables participation of judiciary, executive and eminent persons
and ensures greater transparency, accountability and objectivity
in the appointment of the Judges in the Supreme Court and High
Courts.
2. It is also respectfully submitted that a participatory and collective
process has always been envisaged for judicial appointments. In
Subhash Sharma v. Union of India (1991) Supp (1) SCC 574(at p.
597):
42. .The appointment is rather the result of collective,
constitutional process. It is a participatory constitutional
function. It is, perhaps, inappropriate to refer to any power or
right to appoint Judges. It is essentially a discharge of a
1

constitutional trust of which certain constitutional functionaries


are collectively repositories...
3. It is submitted that the NJAC, apart from the Chief Justice of India
and two seniormost puisne judges of the Supreme Court, comprises
one member of the Executive, viz., the Union Minister of Law and
Justice (Law Minister) and two eminent persons. There is no other
representative of the executive apart from the Law Minister. As a
member of the Executive, the Law Minister is intended to provide
information about candidates for judicial office that other
members might not have. The two eminent persons on the
Commission are independent members who are appointed by a
committee consisting of the Prime Minister, the Chief Justice of
India and the Leader of the Opposition in the House of People or
where there is no such Leader of Opposition, then, the Leader of
the single largest Opposition Party in the House of the People. The
eminent persons are truly independent and represent neither the
executive nor the judiciary but rather are intended to infuse an
element of objectivity into the process and maintain checks and
balances.

b. The absence of primacy of judicial opinion would not amount to


abrogation of the independence of the judiciary
4. It is the petitioners contention that the absence of primacy given
to the judiciary in the appointments process and the involvement
of the Executive, through even one member in the NJAC, and the
2

presence of eminent persons, would be tantamount to an


abrogation of the independence of the judiciary - a basic feature of
the Constitution. It has already been demonstrated that the
primacy of the judiciary in the matter of appointment of judges to
the higher judiciary, not being a part of the Constitution as
originally enacted and being a method devised by the judiciary to
protect its independence in a particular historical context
(executive overreach) and having a narrow remit (to prevent
stalemate in case of disagreement) cannot be a part of the basic
features

of

the

Constitution.

Further,

it

has

also

been

demonstrated that primacy has no necessary connection with


judicial independence. Thus, the mere fact that the judiciary does
not have an absolute majority in the NJAC but has three out of six
members belonging to it cannot by itself be considered a violation
of the basic structure of the Constitution.

5. Without prejudice to the above submissions, even in the NJAC, it


must be noted that the judiciary enjoys primacy inasmuch as it
has predominant representation with three judges as opposed to
two eminent persons and one member of the Executive. Further,
two judges who disapprove of a particular candidate can ensure
that such a person is never appointed (owing to the second proviso
to Section 5(2) and Section 6(6) of the NJAC Act). Additionally, the
right to reject a candidate approved by the judges on the NJAC
cannot be exercised by the executive alone but requires at least
3

one other member who does not represent the executive i.e. one
eminent person. Thus, seen from this perspective, NJAC tilts the
balance further in favour of the judges and represents a diluted
role for the executive. Thus unless majority of the judges on the
NJAC are in favour of a particular candidate, the appointment of
the candidate will not go through. In light of this, it is respectfully
submitted that judges continue to enjoy considerable preeminence
under the NJAC.

c. In any event, primacy accorded to judicial opinion by the


Second Judges casewas not absolute
6. An important issue that requires consideration is with regard to
appointment of persons whose names are supported by all judges
but who do not have the approval of other members of the NJAC.
In other words, can the judges, who are members of the NJAC have
the right to insist on the appointment of a particular candidate,
when two others express strong reservations against such
candidate? It is respectfully submitted that the concept of primacy,
even as interpreted in the Second Judges case, assuming it is not
to be reconsidered and continues to be applicable, does not take
such an extreme and absolutist view. From the following passages,
it is apparent that such absolutist primacy was not intended under
the Second Judges case. Verma J. observed (at p. 693):
450. .the word consultation instead of concurrence was
used, but that was done merely to indicate that absolute
discretion was not given to anyone, not even to the Chief Justice
4

of India as an individual, much less to the executive, which


earlier had absolute discretion under the Government of India
Acts.
7. It is further significant that the Second Judges case did not give
the judiciary a carte blanche to appoint judges contrary to the
views of the executive. This is clear from the following passages of
Verma J.s judgment (at pp. 703-705):
478(6). The distinction between making an appointment in
conformity with the opinion of the Chief Justice of India, and not
making an appointment recommended by the Chief Justice of
India has to be borne in mind. Even though no appointment can
be made unless it is in conformity with the opinion of the Chief
Justice of India, yet in an exceptional case, where the facts
justify, a recommendee of the Chief Justice of India, if
considered unsuitable on the basis of positive material available
on record and placed before the Chief Justice of India, may not
be appointed except in the situation indicated later. Primacy is
in making an appointment; and, when the appointment is not
made, the question of primacy does not arise. There may be a
certain area, relating to suitability of the candidate, such as his
antecedents and personal character, which, at times, consultees,
other than the Chief Justice of India, may be in a better position
to know. In that area, the opinion of the other consultees is
entitled to due weight, and permits non-appointment of the
candidate recommended by the Chief Justice of India, except in
the situation indicated hereafter.
It is only to this limited extent of non-appointment of a
recommendee of the Chief Justice of India, on the basis of
positive material indicating his appointment to be otherwise
unsuitable, that the Chief Justice of India does not have the
primacy to persist for appointment of that recommendee except
in the situation indicated later. This will ensure composition of
the courts by appointment of only those who are approved of by
the Chief Justice of India, which is the real object of the primacy
of his opinion and intended to secure the independence of the
judiciary and the appointment of the best men available with
undoubted credentials.
478(7). Non-appointment of anyone recommended, on the
ground of unsuitability, must be for good reasons, disclosed to
the Chief Justice of India to enable him to reconsider and
withdraw his recommendation on those considerations. If the
Chief Justice of India does not find it necessary to withdraw his
5

recommendation even thereafter, but the other Judges of the


Supreme Court who have been consulted in the matter are of the
view that it ought to be withdrawn, the non-appointment of that
person, for reasons to be recorded, may be permissible in the
public interest. If the non-appointment in a rare case, on this
ground, turns out to be a mistake, that mistake in the ultimate
public interest is less harmful than a wrong appointment.
However, if after due consideration of the reasons disclosed to
the Chief Justice of India, that recommendation is reiterated by
the Chief Justice of India with the unanimous agreement of the
Judges of the Supreme Court consulted in the matter, with
reasons for not withdrawing the recommendation, then that
appointment as a matter of healthy convention ought to be
made.
8. It is clear from the passages above which are reiterated in the
Summary of Conclusions of Verma J. (as he then was), that
although all appointments were to be made with the approval of
the judiciary symbolised by the CJI, the CJI did not have an
untrammeled right to push through an appointment contrary to the
opinion of the executive. Thus primacy of judges as interpreted
in the Second Judges case does not include the right of judges to
insist on the appointment of a particular candidate contrary to the
wishes of the executive. This is further apparent from the
conclusions recorded in the Third Judges case (at p. 772):
44(4). 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.
Bharucha J. (as he then was) held (at p. 766):
23. .It may be that one or more members of the collegium
that made a particular recommendation have retired or are
otherwise unavailable when reasons are disclosed to the Chief
6

Justice of India for the non-appointment of that person. In such


a situation, the reasons must be placed before the remaining
members of the original collegium plus another Judge or Judges
who have reached the required seniority and become one of the
first four puisne Judges. It is for this collegium, so reconstituted,
to consider whether the recommendation should be withdrawn or
reiterated. It is only if it is unanimously reiterated that the
appointment must be made. Having regard to the objective of
securing the best available men for the Supreme Court, it is
imperative that the number of Judges of the Supreme Court who
consider the reasons for non-appointment should be as large as
the number that had made the particular recommendation.
24. The Chief Justice of India may, in his discretion, bring to the
knowledge of the person recommended the reasons disclosed by
the Government of India for his non-appointment and ask for his
response thereto. The response, if asked for and made, should be
considered by the collegium before it withdraws or reiterates
the recommendation.
It is therefore clear that there was no absolute right given to the
Chief Justice of India to insist upon an appointment in the first
instance.
9. Without prejudice to the above submissions, it is submitted that
the arguments based on the right to primacy of the judiciary are
based on the misconceived notion that all three judges on the NJAC
must speak in one voice and act in unison. This is to suggest that
the three judges will not apply their minds independently or have
different views. The three judges on the NJAC cannot be viewed as
a single voice there is no one voice symbolising the view of the
judiciary in any commission where there is more than one judge.
Each judge is expected to independently apply his or her mind and
express different views and perspectives, thereby adding an
element of plurality to the deliberations. The importance of

plurality was identified in the Second Judges casein the


following observation of Verma J. (as he then as)(at pp. 707-08):
480.Plurality of Judges in the formation of the opinion of the
Chief Justice of India, as indicated, is another inbuilt check
against the likelihood of arbitrariness or bias..
Therefore, the question of a collision between the executive and
the judiciary does not and cannot arise as each of the three
judges opinion must be weighed independently. All the members
of the NJAC will partake in a participative exercise,use their own
expertise and have collective consultation so as to choose the most
suitable candidate for the judicial office.
10. In light of the above, it is humbly submitted that:
a. Primacy of the judiciary in appointment cannot be part of the
basic structure of the Constitution;
b. Without prejudice to the above, the lack of absolute majority
of judges in the NJAC is not violative of the basic structure of
the Constitution.
c. In any event, the judiciary is the single largest organ
represented on the NJAC and thus retains preeminence.

II.

The presence of two eminent persons on the NJAC does not affect
the independence of the judiciary; on the contrary it is necessary to
ensure diversity and accountability in appointments

11. It has been contended by the petitioners that the term eminent
persons as contained in sub-clause (d) of clause (1) of Article 124A
introduced by the 99th Amendment is vague and without criteria, and
therefore the requirement to have two eminent persons on the NJAC
should be struck down.
a. The infirmity with the term eminent persons as contended by
the petitioners must be of such a nature as to amount to
emasculating the independence of the judiciary thereby
abrogating the basic structure of the Constitution
12. It is respectfully submitted that merely stating that the power to select
eminent

persons

is

vague

does

not

render

the

provision

unconstitutional. It has to be shown as to why such vague or uncanalised


power (assuming, without conceding that this exists) violates the basic
structure of the Constitution. As has been held by the Supreme Court,
every violation of Article 14 is not a violation of the basic structure. In
Maharao Sahib Shri Bhim Singhji v. Union of India(1981) 1 SCC 166
Krishna Iyer J. said (at p. 186):
20.Therefore, what is a betrayal of the basic feature is not a
mere violation of Article 14 but a shocking, unconscionable or
unscrupulous travesty of the quintessence of equal justice

13. The burden to demonstrate this infirmity is on the petitioners, till which
time the provision enjoys a presumption of constitutionality.

b. The term eminent persons is neither vague nor uncanalised

14. It is submitted that the term eminent person is in no way vague or


uncanalised. In fact, it has a specific meaning attached to it well
understood in daily usage and the law. As defined in the Oxford English
Dictionary, the term eminent means Distinguished in character or
attainments, or by success in any walk of life.
15. The apparent synonymity of eminent with the term distinguished
led Dr. BR Ambedkar to comment in the Constituent Assembly that he
was unsure about the difference between the two. This is manifested
also in the Constituent Assembly Debates in the context of persons who
could be appointed to the Supreme Court under clause (3) of Article
124. In this respect, reference may be made to Dr. Ambedkars speech,
on 24th May, 1949 (Constituent Assembly Debates, Book 3, Volume VIII,
p. 258) where the meanings of the term distinguished and eminent
in the context of appointment to the Supreme Court were discussed:
Mr. President, Sir. I am prepared to accept two amendments.
One of them is No. 1829 moved by Mr. Santhanam, and the other
is No. 1845 moved by Mr. Kamath, by which he proposes that
even a jurist may be appointed as a Judge of the Supreme Court.
But with regard to Mr. Kamaths amendment No. 1845, I should
like to make one reservation and it is this. I

10

am not yet determined in my own mind whether the word


distinguished is the proper word in the context. It has been
suggested to me that the word eminent might be more
suitable. But as I said, I am not in a position to make up my mind
on this subject; and I would, therefore, like to make this
reservation in favour of the Drafting Committee, that the
Drafting Committee should be at liberty when it revises the
Constitution, to say whether it would accept the word
distinguished or substitute eminent or some other suitable
word.

16. Eventually, the Drafting Committee used the word distinguished in


what eventually became clause (3) of Article 124 providing for the
appointment of distinguished jurists. It is humbly submitted that
eminent person as a member of the NJAC is analogous to
distinguished jurist which was an eligibility criterion for a judge of the
Supreme Court. The terms are easily interchangeable and much should
not be made about merely semantic arguments of this type. Eminent
has a clear and well-established meaning and cannot be presumed to be
vague and undefined in any manner.
17. A further check against persons with extraneous qualifications being
appointed

as

eminent persons is provided by the appointment

process of such persons. The appointment of eminent persons is to be


made by a committee comprising the Chief Justice of India, the
Prime Minister, and the Leader of the Opposition in the Lok Sabha or
where there is no Leader, then the leader of the single largest
opposition party in the Lok Sabha. This is a High-Powered Committee
comprising three high functionaries. On the role of such a High-

11

Powered Committee, in Centre for Public Interest Litigation v. Union


of India (2011) 4 SCC 1, Kapadia CJI held (at p. 33):
81.To accept the contentions advanced on behalf of the
petitioners would mean conferment of a veto right on one of
the members of the HPC. To confer such a power on one of the
members would amount to judicial legislation. Under the proviso
to Section 4(1) Parliament has put its faith in the High-Powered
Committee consisting of the Prime Minister, the Minister for
Home Affairs and the Leader of the Opposition in the House of
the People. It is presumed that such High-Powered Committee
entrusted with wide discretion to make a choice will exercise its
powers in accordance with the 2003 Act objectively and in a fair
and reasonable manner. It is well settled that mere conferment
of wide discretionary powers per se will not violate the doctrine
of reasonableness or equality. The 2003 Act is enacted with the
intention that such High-Powered Committee will act in a
bipartisan manner and shall perform its statutory duties keeping
in view the larger national interest. Each of the members is
presumed by the legislature to act in public interest. On the
other hand, if veto power is given to one of the three members,
the working of the Act would become unworkable.
18. In the 99th Amendment, the committee, it is submitted, is even more
High-Powered than the Committee being considered by the Supreme
Court in the aforementioned case, with the Home Minister (as is the
case appointment of the Central Vigilance Commissioner) being
substituted by the Chief Justice of India. Further, a random sampling
of 10 Acts out of the 70 that Mr. Arvind Datar, Learned Senior Counsel
presented to

Court

as having eminent persons do not have any

similar committee for appointment;1 on the contrary in a majority of

See, S. 64F, Insurance Act 1938, S. 24, Indian Institutes of Information Technology Act, 2014, S. 12,
Rajiv Gandhi National Institute of Youth Development Act, 2012, S. 5 (2)(c)(iii), 6(2)(c)(4) Unorganised

Workers Social Security Act, 2008, S. 22(1) Biological Diversity Act, 2002, Schedule 1, Para 22,
Jamia Millia Islamia Act, 1988, S. 4 National Institute of

12

acts, appointment is made by the

Central Government. The

constitution of such a high-powered appointment committee is the


cornerstone to guarding against uncanalised power. Since Parliament
has put its faith in such a Committee, such will should be respected,
especially in view of the fact that a democratic polity is part of the
basic structure of the Constitution.
19. In assessing the constitutionality of the vesting of such power in high
constitutional functionaries, the Court must be cognizant of the stature
of such functionaries. In the Second Judges Case, it was held by Verma
J. (as he then was) at para 477,
477. The absence of specific guidelines in the enacted provisions
appears to be deliberate, since the power is vested in high constitutional
functionaries and it was expected of them to develop requisite norms by
convention in actual working as envisaged in the concluding speech of the
President of the Constituent Assembly. The hereinafter mentioned norms
emerging from the actual practice and crystallised into conventions - not
- exhaustive - are expected to be observed by the functionaries to
regulate the exercise of their discretionary power on the matters of
appointment and transfers.

20. Furthermore, the principle of constitutional trust should apply to the


High-Powered Committee which must be trusted to select the most
appropriate persons for
given the fact that

appointment

the

committee

to judicial

office. Especially

to select eminent persons

comprises the Chief Justice of India, there is sufficient safeguard to


ensure that only persons who will add

value

to the

process

of


Pharmaceutical Education and Research Act, 1998, Schedule 1 of Pondicherry University Act,
1985, S. 4 Jallianwala Bagh Act, 1951.

13

selecting the most appropriate candidates for judicial office will be


selected as eminent persons on the NJAC.
c. The presence of two eminent persons serves important and
vital purposes in selecting judges for the higher judiciary
21. It is respectfully submitted that the presence of eminent persons
serves important and vital purposes in the task of appointment of judges
to the higher judiciary. The 99th Amendment, as evident from its
Statement

of

Objects

and

Reasons,

envisages

broad-based

appointments commission. The presence of non-judicially trained


members of the public is a key element of such a broad-based method
that serves three distinct purposes promoting public confidence,
adding relevant inputs given the qualities that are required of a judge
and ensuring checks and balances in the process of appointment of
judges.
i. Promoting public confidence in the judiciary
22. The judiciary is an organ of the state that derives its legitimacy from
the people. Thus public confidence in the judiciary is a sine qua non for
judicial functioning. 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

14

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.

23. A key element in securing such confidence is the need for diversity in
judicial composition. The importance of diversity was underscored in
the context of judicial appointments in India in Registrar General, High
Court of Madras v. R. Gandhi and Ors. (2014) 11 SCC 547 by Chauhan
J. (at p. 554):
16. Appointments cannot be exclusively made from any isolated
group nor should it be pre-dominated by representing a narrow
group. Diversity therefore in judicial appointments to pick up
the best legally trained minds coupled with a qualitative
personality, are the guiding factors that deserve to be observed
uninfluenced by mere considerations of individual opinions. It is
for this reason that collective consultative process as enunciated
in the aforesaid decisions has been held to be an inbuilt
mechanism against any arbitrariness.

24. Further, Kate Malleson, an authority on the topic of judicial


appointments in the UK and author of the book, Appointing Judges in
the Age of Judicial Power (pages 7-8) writes,
The second and central and recurring theme evident in the
current debate on judicial selection is the growing recognition
of the importance of selecting more diverse judiciaries. The
lack of women and lawyers from minority ethnic backgrounds on
the bench throughout different jurisdictions is one of the
greatest challenges facing judiciaries today, and the failure of
appointments systems to make significant progress in increasing
diversity has been a key factor in many of the changes being
15

introduced. In federal and provincial systems, regional


representation is an equally important factor. Likewise for
international courts the inclusion of judges from different regions
or countries covered by their jurisdiction is the foundation upon
which the legitimacy rests. The geographical balance of the
courts membership is often the most controversial aspect of the
appointments precast the international court. For countries in
which there are strong religious diversities, such as Israel, the
religious backgrounds of judges are equally critical. In many
African jurisdictions the question of racial composition is
inevitably at the fore. Nor are the categories of representation
unchanging or universal. The South African Judicial Services
Commission, for example, takes pride in its record of promoting
disability equality in its appointments process, whereas another
systems the question of disability has barely found its way onto
the diversity agenda. The last example provides evidence of the
way a comparative review of judicial selection around the world
reveals the changing shape of the debate and some possible
directions it may take in the future. It also highlights the fact that
it is in the newer democracies that some of the innovative policies
and practices in this area are found. While mature democracies
can generally claim a stronger record in relation to the protection
of judicial independence, the weight of tradition and precedent
found in those countries has often inhibited the development if
reforms to judicial appointments processes that would expand the
recruitment pool for judicial office and lead to a more diverse
judiciary.

25. This is not to suggest that the collegium of judges is institutionally


incapable or deliberately resistant to promoting diversity in judicial
appointment. However, as Malleson notes,
Their (lay members) function is a vital one in balancing the
interests of the legal and judicial members of the commissions and
mitigating the danger of cloning which inevitably arises when
appointment is made by those already doing the job. 2


2 Ibid.

16

When judges have the primary responsibility for appointment of


judges, the House of Lords Select Committee noted, HL Paper 272
(at p. 24):
65. Serving judges best understand the qualities required to
fulfil a particular position and are able to provide an informed
assessment of an individuals skills and abilities. These factors
need to be built into the appointments process, whether through
membership of selection panels or through consultation and the
provision of references. But the input of the judiciary is one
significant factor which risks a candidate being preferred
because his or her background, characteristics and manner
resemble that of other judges. This could work against attempts
to increase diversity.

66. Many of our witnesses argued that having greater lay


involvement in the selection process was the most appropriate
way of avoiding the problem of self-replication within the
judiciary. Whilst some queried whether lay members could
properly assess candidates for a judicial role, others stressed
that the lay members of the JAC are very powerful people with
strong backgrounds in business, politics or what have you who
are of extremely high calibre and [who bring] different
qualities ... and a broader perspective
(House of Lords Select Committee on the Constitution, 25th
Report of the Session 2010-12 on Judicial Appointments (HL Paper
272, 2012))
26. This is especially important in the context of the fact that independence
of the judiciary requires independence from the class to which judges
belong. In the First Judges Case, Bhagwati J (as he then was) held,
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

17

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.

27. Having eminent persons, not connected with the legal profession on the
panel to select judges promotes diversity both intrinsically and
instrumentally. Intrinsically, by very virtue of the fact that they are not
judges or the government officials, they are in a position of
detachment. Lord Brian Gill, Lord President and Lord Justice General
(Scotlands longest serving and senior most Judge) remarks in his recent
speech on Independence of the Judiciary at the 19th Commonwealth Law
Conference, 2015:
Inevitably a process that is administered by the public service
will adopt a typically public service appointment model. That
may not be the best model for appointments to an office of
constitutional significance. We must ensure that the
appointments boards include people of significant legal
experience, as well as lay membership that will provide a check
on the process from a detached standpoint. Lay members from a
variety of backgrounds possessing different life experiences can
evaluate non-legal competencies from the ordinary citizens
perspective. Temperament and commitment are attributes that
require no legal skill for their assessment.

Further, the 99th Amendment specifically provides that one


eminent person must be a

woman or

representative of

Scheduled Castes, Scheduled Tribes, Other Backward Classes or


minorities. Hence their very presence is a sign that the

18

judiciary in whose selection they have a role is likewise sensitized


to diverse needs.
28. Instrumentally, eminent persons ensure that members of the public of
all shades, who are the ultimate consumers of justice have greater
confidence that courts will be sensitive to their concerns. This is the
rationale behind lay persons being included as members of the National
Consumer Disputes Redressal Commission (NCDRC). It is significant to
note that the appointment of lay persons has been accepted and upheld
in this context by the Supreme Court despite the office being a quasijudicial office. In Indian Medical Association v. V. P. Santha and Ors.,
(1995) 6 SCC 651, a challenge to provisions of the Consumer Protection
Act which provides for the appointment of non-judges was challenged.
The presence of lay persons was justified, placing reliance on a study by
Prof. Robin C A White In the Administration of Justice, 2nd Edn.

34. Discussing the role of lay persons in decision-making,


Professor White has referred to two divergent views. One view
holds that lay adjudicators are superior to professional judges
in the

application

of

general standards of conduct, in their

notions of reasonableness, fairness and good faith and that they


act as an antidote against excessive technicality and some
guarantee that the law does not diverge too far from reality. The
other view, however, is that since they are not experts, lay

19

decision-makers present a very real danger that the dispute may


not be resolved in accordance with the prescribed rules of law and
the adjudication of claims may be based on whether the claimant
is seen as deserving rather than on the legal rules of entitlement.
Professor White has indicated his preference for a tribunal
composed of a lawyer, as Chairman, and two lay members. Such a
tribunal, according to Professor White, would present an
opportunity to develop a model of adjudication that combines the
merits of lay decision-making with legal competence and
participation of lay members would lead to general public
confidence in the fairness of the process and widen the social
experience represented by the decision-makers. Professor White
says that apart from their breadth of experience, the key role of
lay members would be in ensuring that procedures do not become
too full of mystery and ensure that litigants before them are not
reduced to passive spectators in a process designed to resolve
their

disputes.

(See:

Professor

Robin

C.A.

White: The

Administration of Justice, 2nd Edn., p. 345.)

29. The Supreme Court was fully conscious of the fact that the President
of the National Commission may be outvoted by other members being
lay persons who might not have expertise in that specific area. Yet it
upheld the appointment of these lay persons/non judges. (para 33,

20

page 670). Again, in State of Karnataka v. Vishwabharathi Housing


Building Coop. Society and Ors. (2003) 2 SCC 412, the same reasoning
was adopted. It was held that merely because in a given situation the
decision of non-judicial members may override that of the President, a
judicial member, was not sufficient reason to strike down the Act as
unconstitutional. (para 40, page 427).
30. It is of some significance that consumer fora including the National
Commission where sometimes highly technical or commercial disputes
worth tens of crores of rupees may be decided, that too after taking
evidence, have non-judicial members who have no expertise whatsoever
on the legal process, and often no expertise either on the particular
subject before them. Yet, there is no bar on their presence on the
Bench. This demonstrates that their presence is intended to be
representative of the ordinary citizen and to lend him or her some
comfort and assurance that the system of consumer dispute redressal
functions for his or her benefit. Thus, the purpose is to inspire public
confidence in the system and in the access to justice rather than
provide expertise. Similarly it is submitted that for the NJAC the
presence of two eminent persons provides a direct stake for the public
to ensure that persons selected as judges are sensitive to their
interests. If non-judicial members can effectively function and bring
value to the adjudication of technical or commercial disputes, there is
no reason why there can be any objection to the participation of nonjudicial eminent persons on an appointing Commission.

21

31. Such representation to members of the public who are the primary
consumers of justice and in whose interests the Court functions is
particularly crucial in India. This is because the higher judiciary in India
exercises the power of judicial review in a manner largely unparalleled
in the world. From the traditional role of an adjudicator of disputes
whether between private parties/ governments/ municipalities etc., the
Courts have expanded their jurisdiction significantly. The start was the
entertainment of PILs in the 1980s. Bhagwati J. (as he then was) the
pioneer in this regard. Over the last three decades, PILs have been
entertained for and on behalf of weaker sections of society like bonded
labour, child labour, under trial prisoners, etc. Further, PILs in respect
of various technical matters with significant economic implications such
as aspects of environment and forests, mining, coal and telecom
industries, technology, (issues of economy) linking and cleaning of
rivers, the construction and height of dams, hydroelectric projects,
aspects of pollution in cities, etc. have also been entertained. This is
not to criticise the role of the Courts but to show the sweep and the
myriad nature of their adjudicatory functions. It is but obvious that a
judge is not an expert in every field described above. However, it is
important for a judge to be a well-rounded personality with expertise in
some of these subject areas, awareness of contemporary events and
sensitivity to the social and economic impact of issues that arise before
the court. Thus only knowing the letter of law in the current

22

situation is not sufficient. It is in this context that the two eminent


persons will have a unique contribution in selecting the most
appropriate and well-rounded candidates for judicial office, such
persons being persons of distinction in diverse fields not limited to law
providing inputs that other members of the NJAC may not necessarily be
in a position to provide. This is thus necessary to ensure and maintain
public confidence in the justice delivery system.
ii.

Relevance of eminent persons in assessing the qualities of


judges

32. It is humbly submitted that the qualities of a judge should also be wideranging was recognised in the Indian context by former Chief Justice of
India, Justice RC Lahoti. He identified the following ethical values which
a judge should have:
i.

Public Speech: Judges must be cautious of their role and


responsibilities while engaging in public speech. Law is
supposed to be founded upon morality and judges have to do
with making law and its interpretation. Hence, the ethical
obligation rests harder upon their shoulders. Judges must
constantly be aware of their role and position in society and
cannot be frivolous in the use of their words. It need not be
stated that the words from a judge whether inside or out of
the court room carry far more weightage than an average
citizen.

ii.

Public Trust: A judge must respect and honour his judicial


office. It is an institution of public trust and he must
endeavour to leave such office with higher respect and public
confidence than when he inherited it. Societal equilibrium
and faith in rule of law depends on the strength of the
dignity of the judicial office. Judges are after all temporary
occupants of an office that existed before us and will
continue to exist after our exit.

iii.

Family Conduct: Judges are


bestowed
with the
responsibility of judging the conduct of fellow citizens.
Therefore it is only natural that they be expected to make

23

truthful decisions in their own lives. If they succumb to


making the wrong choices they lose the moral authority to
judge the lives of others. Further, Judges are not only held
responsible for their own conduct but also for that of their
families. Such relationships may sometimes give rise to
complex ethical challenges as they may place additional
restrictions on the family members of a judge. Therefore,
great caution also needs to be exercised by a judge and his
family and friends while conducting themselves
iv.

Recusal: A judge may often encounter situations where a


conflict of interest arises or where there is an apparent
conflict of interest which may require him to recuse himself
from the matter. Bias is one of the factors that may require
recusal. While considering the question of bias a judge may
have to evaluate not only whether he would indeed be
influenced in his decision but also whether he may be
perceived as being biased which may weaken public trust
ultimately. Ethical considerations play a decisive role in
influencing a judges recusal from a case.

v.

Compassion and Conscience: being compassionate as a judge


is as indispensable judicial ethic. A judges metamorphosis
from a student of law, to a practitioner and later as a judge
often desensitizes us to the gravity and the impact of our
work on litigants and the general public. We must resist the
tendency to treat a case as a routine matter because for the
litigant it is often his first brush with the rule of law, after
probably having exhausted all his other available options. And
the decision of a judge will undoubtedly alter the course of
the litigants life. Thus while upholding the rule of law if a
judge can award a patient hearing to both the parties and be
compassionate in his application of law, it often alleviates
their suffering and certainly enhances their respect for the
judiciary.

vi.

Avoiding Class Bias: The strength of our judiciary also


depends on their ability to treat citizens of various religious,
social and economic backgrounds without bias or prejudice. A
class bias where an individual may be prejudices against
another individual not because of who he is but what he is
also not uncommon in any society. A judge like any other
individual must guard against succumbing to such biases.

vii.

Constitutional Values: The creative judges starting point


is a belief in a changing or evolving society, in which there
is a continuous need for the law to be modified so as to
bring it back into touch with social need. He must
juxtapose evolving societal needs with our resilient and
24

visionary Constitutional principles which have stood the test


of time. Decisions may be reversed by an appellate court, a
disadvantage a judge often faces is the lack of feedback on
his work. The nature of his work is such that even if he
performs his duties to the best of his abilities and follows all
procedures and laws he is perhaps going to leave one party
less satisfied than the other. Complaints from litigants,
praise from lawyers or writings in the press which could go
either way are seldom indicators of the quality of our work.

(Justice RC Lahoti, Canons of Judicial Ethics, M. C. Setalvad


Memorial Lecture by Honble Mr. Justice R.C. Lahoti, 22nd February
2005)

33. To assess the abovementioned qualities, an eminent person would bring


in to the appointments process a fresh perspective, higher sensitivity to
the issues of the public, bolster the confidence of the public and bring
in an element of detachment and impartiality to the process. It can be
nobodys case that only judges can assess such qualities. On the
contrary, independent persons of eminence will be best judges of
several such qualities given that their impressions will not be clouded by
the persons knowledge of law as evidenced by his judgments, and will
undertake an assessment of the character of the person based on the
materials placed on record.3

3

It is of some significance that in the UK, even in the designation of Queens Counsels (QCs),
lay persons are on the selection panel. The selection panel comprises of a senior judge, senior
lawyers (both barristers and solicitors and distinguished lay (not legally qualified) people. In
fact, two panel members including one lay person is required to review each application based
on the list of important cases, narrative description of practice and self assessment to
establish a preliminary view. Only then is the application put before the panel. This process
too encourages social diversity.

25


26

34. The presence of eminent persons on the NJAC is justified by the fact that
attributes appropriate for judgeship are not confined to competence in the
law. It must be fairly admitted that Knowledge of the law, record as a judge
are certainly crucial factors in appointment. The Chief Justice of India and
two seniormost puisne judges will naturally have a determinative say in this
matter. The eminent persons would help in ensuring that perspectives of
the citizenry, who are the ultimate consumers of justice, are also
adequately taken into account especially with regard to the other qualities
Justice Lahoti believes are necessary. Lord Gill, Lord President and Lord
Justice General of Scotland (Scotlands longest serving and senior most
Judge) remarked in his recent speech at the 19th Commonwealth Law
Conference, 2015:
Lay members from a variety of backgrounds possessing different life
experiences can evaluate non-legal competencies from the ordinary
citizens perspective. Temperament and commitment are attributes
that require no legal skill for their assessment.
In 48 years in the business of the law I have known judges of
outstanding academic brilliance who found it difficult to make a
decision for fear of being wrong; or who pursued relentless logic
without due regard to common sense. I have known lawyers who
were not forceful pleaders at the Bar yet flourished in the judicial
life when they had time for reflection. So when a judicial
appointment is made and the profession as always - passes its
confident verdict, remember this: you never can tell.

35. It is humbly submitted that eminent persons who would be part of the
NJAC would help to bring such qualities to the table which would be in
addition to a judges role as an adjudicator of disputes. The
A

different interests represented on the NJAC are intended to contribute


different perspectives to the process of selection of judges. Each member
and each bloc will add something new and different and therefore the
apprehension that eminent persons do not have adequate expertise to
assess judicial competence per se is of no relevance. If every member on
the NJAC is expected to contribute on the same facet of suitability of
judicial office, the presence of six members will become pointless. It is the
judicial members who will assess the legal background and competence of
the candidate and will guide the others based on their expertise and
experience. The eminent persons will assess candidates integrity, their
conduct, their ability to be compassionate and particularly ensure the
avoidance of class bias, all of which have been recognised by Justice Lahoti
as key to judicial functioning.
35A. It is humbly submitted that in order to engender public confidence in the
administration of justice, it is necessary for the public to know that their
judges will be adequately sensitive to their interests, including the interests of
sections of society who have been traditionally discriminated against. The
presence of socially diverse persons such as minorities, Scheduled Castes,
Scheduled Tribes, Other Backward Classes or women on the Bench would have
the effect of sensitizing other members of the Bench to the problems faced by
these sections of society.
35B. Eminent persons also introduce an element of impartiality i.e. a
dispassionate approach in the selection process. Their non - involvement

in the legal profession, contrary to the misconceived belief of being a


handicap, is actually a strong virtue. Their coming from backgrounds outside
the legal fraternity render them free from the biases, prejudices and
preconceived notions. They stand at an arms-length and therefore introduce a
much needed element of neutrality in the process.

35C. In light of the above, it is humbly submitted that eminent persons are
essential in assessing the relevant qualities in persons who are to be appointed
as judges, qualities which cannot simply be limited to the knowledge of the
law.

iii. The inclusion of eminent persons without any stated criteria was
found sufficient by several previous reform proposals including the
National Commission to Review the Working of the Constitution.
35D. It must be noted that the concept of having eminent persons on the
NJAC is not a novel one. A review of all the past bills and reports would
show that the inclusion of an eminent person in the Judicial Commission in
appointment of judges is a concept of established provenance.

a. The

Report

Working

of

of
the

the

National

Constitution

Commission
(NCRWC) also

to

Review

known

as

the
the
C

Venkatachaliah

Committee

proposed

five-member

selection

commission that consisted of the Chief Justice of India, 2 senior most


judges, the Law Minister and 1 eminent member. The eminent
member was to be appointed by the President in consultation with
the Chief Justice of India. No criteria were prescribed. This
commission has time and again been advocated by the Petitioners, as
being an ideal model. It is not the argument of the Petitioners that
the very presence of an eminent person on the Commission is
indecorous or unconstitutional.
b. The suggestion of the 5-member committee made by the NCRWC was
adopted with modification and proposed in the

Constitution

(98th Amendment) Bill, 2003 by the NDA Govt. Here the eminent
person was to be nominated by the President in consultation with the
Prime Minister.
c. The Judicial Appointments Commission Bill, 2013 further expanded
the commission with the inclusion of two eminent members thus
making it a six-member commission, which included the Chief Justice
of India, the 2 senior most judges, the Law Minister and 2 eminent
members.
35E.

All these Bills and proposals were taken into account by

Parliament

while

passing

the

99th

Amendment. No criteria for

eminent persons were provided in any of these bills. Parliament in


its wisdom felt that its policy of broad-basing the appointments

mechanism would be best served by having 2 eminent persons, with one


belonging to women, Scheduled Castes, Scheduled Tribes or Minorities.
Hence the 99th Amendment includes such persons in the NJAC for
appointment of judges to the Supreme Court and High Courts.
35F. Two final points must be noted. First, Mr. Jethmalani had
contended that the presence of the Law Minister might lead to a
situation where the judiciary and the Law Minister might collude to
ensure recommendations of the executive and the judiciary and
therefore the Law Minister ought not to be present on the NJAC. In this
context, the presence of two independent eminent persons who may
have nothing to do with the legal profession will also act as checks and
would remain vigilant against any such attempts. Thus it is the
incorporation of two eminent persons which makes the commission more
than a fully ex officio body, having wide representation, making it
accountable on its own and fulfilling the constitutional mandate of
checks and balances.
35G. Secondly, the eminent persons will be guided by the Chief Justice
of India and the remaining
assess

who will

be best

placed to

the legal merits of a candidate. As an analogy, the National

Green Tribunal
who

judges

is

members.

under

the

a f ormer judge,
The

members

Act of 2010 comprises a


judicial
including

Chairperson

members as well as expert


expert

members

are

appointed under the National Green Tribunal ( Manner of

Appointment of Judicial and Expert Members, Salaries and Allowances


and other Terms and Conditions of Services of Chairperson and other
Members and Procedure for Inquiry) Rules, 2010. Rule 3 sets out a
selection committee for appointment of judicial members and expert
members. One of these 6 members of the selection committee is a
sitting judge of the Supreme Court and another is the chairperson of the
Tribunal. The rest of the members do not have a judicial background. It
may well be argued that these judicial members on the selection
committee would have no expertise to sit in judgment over who should
be an expert member. However, that is not the spirit in which the
selection process is to be assessed. The judicial members will be guided
by non-judicial members on relevant factors and vice-a-versa in order to
select the persons most suitable for the position. It is in the same spirit
that the selection process in the NJAC Act must be viewed.
35H. In light of the above, it is respectfully submitted that:
a. The meaning of eminent is clear and the safeguard that
appropriate persons will be appointed is provided by vesting the
power to appoint eminent persons in a High-Powered and
representative committee comprising the Chief Justice of India,
the Prime Minister and the Leader of the Opposition in the Lok
Sabha.

b. The presence of eminent persons is necessary to ensure


participation of the general public, a key stakeholder of justice in
the appointment process to the higher judiciary.
c. The presence of eminent persons on the NJAC would also ensure
that the appointments made reflect sufficient diversity and checks
and balances, which international best practice shows is optimally
ensured by the presence of lay members on appointment
commissions.
d. The possible non-involvement of eminent persons in the legal
profession, contrary to the misconceived belief of being a
handicap, is actually a strong virtue. Their coming from
backgrounds outside the legal fraternity render them free from
biases, prejudices and preconceived notions. They stand at an
arms length and therefore introduce a much needed element of
neutrality, plurality and citizens perspective in the process.

III.

The presence of the Union Minister for Law and Justice on the NJAC
does not affect the independence of the judiciary

36. It is respectfully submitted that the presence of the Union Minister for Law
and Justice (Law Minister) on the NJAC as mandated by the 99th
Amendment does not, in any way, affect the independence of the judiciary
or in any manner, abrogate the basic structure of the Constitution. Rather,
the presence of the Law Minister will help in making the NJAC more
effective as a recommendatory body, providing inputs to assist in the bodys
decision-making.

It

is

respectfully

submitted

that

the

petitioners

contentions on the unconstitutionality of the presence of the Law Minister


are based on presumptions and surmises which are not valid in law and
cannot form the basis of constitutional adjudication.
37. It has been contended by the petitioners that the presence of the Law
Minister in the NJAC is a violation of judicial independence and hence
contrary to the basic structure. It is respectfully submitted that the
presence of the Law Minister, (vide section 2 of the 99th Amendment
inserting Article 124A(1) of the Constitution) is not violative of judicial
independence. Per contra, it is necessary to ensure a scheme of checks and
balances and accountability in the power of appointment of judges.

a. The Law Minister provides information about candidates that is available


only to the Executive

26

38. It is respectfully submitted that the Law Minister, as a representative of the


Executive, brings into the deliberations vital information about the
suitability of a given candidate for appointment to the judiciary.
39. Apart from the suitability of a candidate on the basis of her judicial record,
the NJAC is also required to deliberate on the character and conduct of the
candidate eligible for appointment as a judge to ensure that the
institutional integrity of the judiciary as an institution is maintained.
40. That the Executive would be in a better position to provide the relevant
inputs about the character and conduct of a judge was acknowledged by
Verma J. (as he then was) in the Second Judges case as follows (at p.
696):
462. The constitutional purpose to be served by these provisions is
to select the best from amongst those available for appointment as
judges of the superior judiciary, after consultation with those
functionaries who are best suited to make the selection. It is obvious
that only those persons should be considered fit for appointment as
judges of the superior judiciary who combine the attributes essential
for making an able, independent and fearless judge. Several
attributes together combine to constitute such a personality. Legal
expertise, ability to handle cases, proper personal conduct and
ethical behaviour, firmness and fearlessness are obvious essential
attributes of a person suitable for appointment as a superior judge.
The initial appointment of Judges in the High Courts is made from
the Bar and the subordinate judiciary. Appointment to the Supreme
Court is mainly from amongst High Court Judges, and on occasions
directly from the Bar. The arena of performance of those men are
the courts. It is, therefore, obvious that the maximum opportunity
for adjudging their ability and traits, is in the Courts and, therefore,
the Judges are best suited to assess their true worth and fitness for
appointment as Judges. This is obviously the reason for introducing
the requirement of consultation with the Chief Justice of India in
the matter of appointment of all Judges, and with the Chief Justice
of the High Court in the case of appointment of a Judge in a High

27

Court. Even the personal traits of the members of the Bar and the
Judges are quite often fully known to the Chief Justice of India and
the Chief Justice of the High Court who get such information from
various sources. There may, however, be some personal trait of an
individual lawyer or Judge, which may be better known to the
executive and may be unknown to the Chief Justice of India and the
Chief Justice of the High Court, and which may be relevant for
assessing his potential to become a good Judge. It is for this reason,
that the executive is also one of the consultees in the process of
appointment. The object of selecting the best men to constitute the
superior judiciary is achieved by requiring consultation with not only
the judiciary but also the executive to ensure that every relevant
particular about the candidate is known and duly weighed as a result
of effective consultation between all the consultees before the
appointment is made. It is the role assigned to the judiciary and the
executive in the process of appointment of Judges which is the true
index for deciding the question of primacy between them, in case of
any difference in their opinion. The answer which best subserves this
constitutional purpose would be the correct answer.

41. It is therefore respectfully submitted that there is a strong, pragmatic


reason for the inclusion of the Law Minister as his presence there will result
in better decision-making by the NJAC. The Law Minister, as a member of
the political executive, will have access to, and be able to provide the NJAC
with all the relevant information about the antecedents of a particular
candidate which the remaining members on the NJAC are likely not to have.
This will allow for the appointment process to not only suggest persons best
suited for the higher judiciary, in terms of both their judicial abilities and
conduct outside the Court, but also speed up the decision-making process by
allowing for the relevant information about a candidate to be made
available to the NJAC at the time of the decision itself.

28

b. The Executive is a key stakeholder in the justice delivery system for


which it is accountable to Parliament
42. In any form of Constitutional Democracy, the Government is a key
stakeholder in the justice delivery process. This is because, as was
explained by a founding father of our Constitution, Alladi Krishnaswamy
Ayyar in the Constituent Assembly,
There are two principles involved: One is that you must be able to
maintain the independence of the judiciary and unless the judiciary
has sufficient control over its own establishment its independence
may become illusory. If the establishment looks for preferment or
for promotion to other quarters, it is likely to sap the independence
of the judiciary. But at the same time, it has to be recognised that
the judiciary and its establishment would have to draw their
allowances and their salaries from the public exchequer. The
ultimate person who will be affected is the taxpayer. Therefore,
while on the one hand you must secure the independence of the
judiciary, the interests of the taxpayer on the other hand will have
to be safeguarded in a democracy. That can only be done by giving
sufficient control to the Government of the country which is
responsible to the House of the People in the matter of finance.
(Constituent Assembly Debates, Volume VIII, Friday 27th May, 1949]

43. This principle is also widely recognised in 15 countries surveyed, in an


overwhelming majority of which, appointment of judges is an executive act
with the major role being that of the executive, either directly or by its
numerical presence on a judicial appointments commission (by whatever
name so-called) (See Annexure VI).
44. Furthermore, it is respectfully submitted that the presence of the Law
Minister, who as a member of the Council of Ministers is accountable to the
Parliament, also ensures accountability in the appointments process to the
Legislature as the representative of the people.
29

45. As Krishna Iyer J. in Union of India v. Sankalchand Himatlal Sheth, (1977)


4 SCC 193held (at p. 252):
66. .The supremacy of the judiciary as a senior branch of the
State in the important field of justice is a social philosophy,
acceptance of which may involve many changes in the way Judges at
various levels are dealt with vis-a-vis comparable categories in the
executive branch including Ministers. Of course, we should make it
clear that no claim to be an imperium in imperio can be extended to
the judiciary or, for that matter, to any other instrumentality under
the Constitution. Nor should Judges be independent of broad
accountability to the nation and its indigent and injustice-ridden
millions. Moreover, the judicial branch has a responsibility, within
its allotted sphere, for the fulfilment of the special, economic and
political pledge registered in the Constitution which we, the People
of India expect to be redeemed. Professor Friedmann stated the
correct position:
In the modem democratic society the Judge must steer his way
between the scylla of subservience to Government and the charybdis
of remoteness from constantly changing social pressures and
economic needs. [W. Friedmann: Law in a Changing Society]

46. It is respectfully submitted that the presence of the Law Minister therefore
ensures that the appointment process to the judiciary, while not at all being
subservient to the Government, is also not entirely remote from the needs
of the society it is supposed to serve. The Law Minister, as a representative
of the political executive and also being accountable to the Parliament will
ensure that the NJAC functions in a manner broadly accountable to the
nation while appointing judges.
47. Therefore the presence of the Law Minister is not contrary to the norms of
judicial independence, and in fact subserves a vital role in ensuring the
effective functioning of the NJAC.

30

c. The Law Minister ensures checks and balances in the process of


appointing judges

48. As explained in paras 43-58 of Part II of the Written Submissions, checks and
balances are inherent in all powers and functions relating to the judiciary in
the Constitution of India. This is evident from the structure of every
provision in Chapter IV of Part V which relates to the powers of the Supreme
Court, and likewise Chapter V of Part VI relating to High Courts.
49. A check and balance implies that no one person or institution shall have
unfettered discretion in any decision. Checks and balances are not just a
fetter on the power of the Government, but on the functioning of every
single constitutional authority. The need for such checks and balances
between the different departments of Government has been explained by
James Madison in The Federalist No. 51, as follows:
But the great security against a gradual concentration of the
several powers in the same department, consists in giving to those
who administer each department the necessary constitutional means
and personal motives to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be made
commensurate to the danger of attack. Ambition must be made to
counteract ambition. The interest of the man must be connected
with the constitutional rights of the place. It may be a reflection on
human nature, that such devices should be necessary to control the
abuses of government. But what is government itself, but the
greatest of all reflections on human nature? If men were angels, no
government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be
necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable

31

the government to control the governed; and in the next place oblige
it to control itself. A dependence on the people is, no doubt, the
primary control on the government; but experience has taught
mankind the necessity of auxiliary precautions.

50. It was to prevent unfettered discretion of the Executive that the framers of
the Constitution adopted a method of appointment that required the
President to mandatorily consult the Chief Justice of India before making all
Supreme Court appointments, and the Chief Justice of the concerned High
Court, the Governor of the concerned state besides the Chief Justice of
India for appointments to a High Court.
51. The inclusion of the Law Minister in the NJAC redraws the equilibrium to
ensure that no one organ can have the unfettered discretion to appoint
judges. A healthy presence of members of the executive and the judiciary
can be seen in most judicial appointments commissions worldwide. If there
is no executive or judicial member, then they are mandatory consultees or
the ultimate appointing authority (See Annexure VI). Thus the inclusion of a
member of the executive is in keeping with the need for checks and
balances mandated by the Constitution.
d. The presence of one member of the executive in a commission of six
members does not affect judicial independence
52. It is acknowledged that the Law Minister is a representative of the Union
of India, which

is often a litigant before the Supreme Court. In

32

this context, this Honble Court, in Madras Bar Associationv. Union of


India, (2014) 10 SCC 1 (NTT case) has held (at page 217):
131. Section 7 cannot even otherwise be considered to be
constitutionally valid, since it includes in the process of selection
and appointment of the Chairperson and Members of NTT,
Secretaries of Departments of the Central Government. In this
behalf, it would also be pertinent to mention that the interests of
the Central Government would be represented on one side in every
litigation before NTT. It is not possible to accept a party to a
litigation can participate in the selection process whereby the
Chairperson and Members of the adjudicatory body are selected.

53. It is respectfully submitted, without commenting on its correctness, that


this reasoning applicable to appointments to the National Tax Tribunal
(NTT) does not apply to the process of appointments to the higher judiciary.
The Central Government is not a party to every litigation before this
Honble Court like it was intended to be before the NTT. It is, as any other
constitutional functionary is, subject to this Courts jurisdiction, but it
cannot be said that the Central Government is represented in every
litigation before this Honble Court or for that matter, the High Courts. As
such, the participation of the Executive in the appointment process will not
be automatically vitiated.
54. This Honble Court, in Union of India v Madras Bar Association (2010) 11
SCC 1 (NCLT case) has permitted the involvement of the Union Executive
in the appointment process to a tribunal, even though the Central
Government was party to some cases before such tribunal. This Court had
held (at p. 65):

33

120. (viii) Instead of a five-member Selection Committee with the


Chief Justice of India (or his nominee) as Chairperson and two
Secretaries from the Ministry of Finance and Company Affairs and
the Secretary in the Ministry of Labour and the Secretary in the
Ministry of Law and Justice as members mentioned in Section 10-FX,
the Selection Committee should broadly be on the following lines:
(a) Chief Justice of India or his nomineeChairperson (with a casting
vote);
(b) A Senior Judge of the Supreme Court or Chief Justice of High
CourtMember;
(c) Secretary in the Ministry of Finance and Company Affairs
Member; and
(d) Secretary in the Ministry of Law and JusticeMember.

The reasoning in the NCLT case has also been followed recently by this
Honble Court in its decision rendered on 14th May 2015 in Madras Bar
Association v. Union of India 2015 SCC OnLine SC 484 (judgment of
Sikri J.).
55. It is submitted therefore that a harmonious reading of the NTT case and the
NCLT case leads to the conclusion that the Executive can have a role to play
in the selection of judges to those tribunals or courts where it is not a party
in every case before the Court. Further, both these decisions were rendered
in the context of tribunals, where the issue of checks and balances in the
exercise of power was not a constitutional imperative. Finally, it must be
borne in mind that the Law Minister is one member in a commission of six
members. Thus neither does he constitute a majority, nor can he singlehandedly block any recommendation of the NJAC. Hence being a distinct
numerical minority (1outof6) on the NJAC means that the Executives role is

34

severely circumscribed and cannot in any way be said to affect judicial


independence.

e. The arguments of the petitioners on the noxious presence of the Law


Minister are based entirely on presumptions and supposition
56. The argument made by the Petitioners that the presence of the Law Minister
will itself violate judicial independence is based entirely on the following
suppositions:
a. That the Law Minister and the eminent persons will combine to
stall recommendations of deserving candidates.
b. That the Law Minister and the judges interacting in a closed group
will impinge on the independence of judges.

57. The only basis for these suppositions are unsubstantiated speculation of the
possibility of abuse of power, not just by the Law Minister but also the
judges and eminent persons who will combine in different ways to appoint
judges for extraneous considerations. Considering the argument of abuse of
power as a ground for denying the power, and rejecting it, a 9-Judge
Constitution Bench of this Honble Court in Mafatlal Industries Ltd. v.
Union of India, (1997) 5 SCC 536 summarised a catena of precedents and
held as follows (at p. 619):
88. To the same effect are the observations by Khanna, J.
in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225: 1973
Supp SCR 1] (SCR at p. 755 : SCC p. 669). The learned Judge said:
(SCC p. 821, para 1535)
35

In exercising the power of judicial review, the Courts cannot be


oblivious of the practical needs of the government. The door has to
be left open for trial and error. Constitutional law like other mortal
contrivances has to take some chances. Opportunity must be allowed
for vindicating reasonable belief by experience.
To the same effect are the observations in T.N. Education Deptt.
Ministerial and General Subordinate Services Assn. v. State of
T.N. [(1980) 3 SCC 97 : 1980 SCC (L&S) 294 : (1980) 1 SCR 1026] (SCR
at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere
possibility of abuse of a provision by those in charge of administering
it cannot be a ground for holding the provision procedurally or
substantively unreasonable. In Collector of Customs v. Nathella
Sampathu Chetty[(1962) 3 SCR 786 : AIR 1962 SC 316] , this Court
observed: The possibility of abuse of a statute otherwise valid does
not impart to it any element of invalidity. It was said in State of
Rajasthan v. Union of India [(1977) 3 SCC 592 : (1978) 1 SCR 1] (SCR
at p. 77), it must be remembered that merely because power may
sometimes be abused, it is no ground for denying the existence of
power. The wisdom of man has not yet been able to conceive of a
government with power sufficient to answer all its legitimate needs
and at the same time incapable of mischief. (Also see Commr.,
H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954
SCR 1005 : AIR 1954 SC 282] (SCR at p. 1030).

58. It is respectfully submitted that the mere possibility of the abuse of power
by an authority therefore cannot be sufficient, in law, to deny the vesting of
the power in that authority and cannot rebut the presumption of
constitutionality enjoyed by legislative enactments.
59. A similar argument was raised by the petitioners in Centre for PIL v Union
of India (2011) 4 SCC 1 with respect to the High Powered Committee that
was set up under Section 4 of the Central Vigilance Commission Act, 2003.
The Court held (at p. 33):
81.The 2003 Act is enacted with the intention that such HighPowered Committee will act in a bipartisan manner and shall
perform its statutory duties keeping in view the larger national

36

interest. Each of the members is presumed by the legislature to act


in public interest
60. This Honble Court must therefore presume that the members of the NJAC
will act in a non-partisan manner and perform statutory duties keeping
larger national interest in mind. This presumption cannot be selectively
applied to holders of certain offices and not to others in determining the
constitutional validity of legislation or constitutional amendments which
vest such duties on the holders of such offices.
61. Therefore, it is submitted that the mere presence of the Law Minister in the
NJAC is not contrary to the principle of judicial independence in any way,
and does not, in any manner, affect the basic structure of the Constitution.
62. For all the reasons discussed hereinabove, it is most respectfully submitted
therefore that the presence of the Law Minister ensures:
a. Better decision making by the NJAC in making recommendations
of candidates suitable for appointment.
b. Accountability of the NJAC to the public at large, in the exercise
of its functions.
c. Maintenance of the constitutional scheme of checks and balances.

63. It is also humbly submitted that the presence of the Law Minister cannot be
presumed to affect the independence of the judiciary, since the Central
Government is not party to every dispute being agitated before the Supreme
Court. Further, the Law Minister is only 1 out of a

37

membership of 6, and does not have a determinative role in appointments.


Finally, it cannot also be presumed in law that the power of voting for or
against a recommendation will necessarily be exercised by the Law Minister
mala fide.

IV.

The setting up of the NJAC has two key advantages, viz., transparency
and accountability in the matter of appointments
a. Transparency and accountability in the matter of appointment of judges
are essential for the public to repose their confidence in the judiciary
64. It is respectfully submitted that the independence of the judiciary
connotes independence from wide ranging forms of pressure not
merely political or executive control, but freedom even from the class
to which Judges belong. This was explained by Bhagwati J. (as he then
was) in the First Judges case, as follows (at p. 223):
27.It 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 centers, economic or political,
andfreedom from prejudices acquired and nourished by the class to
which the Judges belong. If we may again quote the eloquent words
ofJustice Krishna Iyer:
Independence of the Judiciary is not genuflexion; nor is it opposition
to every proposition of Government. It is neither Judiciary made to
Opposition measure nor Governments pleasure.
(Emphasis
supplied)
65. One of the cardinal requirements of ensuring judicial independence is
selection of persons of highest merit and competence who are able to
38

discharge their duties independently of any form of pressure, by means of a


transparent and fair process. Then and only then can the judiciary enjoy
public confidence. Lord Gill, Lord President and Lord Justice General of
Scotland (Scotlands longest serving and senior most Judge) remarked in his
recent speech at the 19th Commonwealth Law Conference, 2015:
I suggest that to answer the question what kind of judges we wish
to have? our starting point should be that we wish to have judges
who have come to judicial office by a process of appointment
that is open, transparent and fair. Only in that way can the
judiciary deserve and enjoy public confidence. I think that it is
fair to say that until 20 years ago, in the United Kingdom
jurisdictions the appointment process if such it could be called
remained hidden from public view and has aspects of mystery.

In the last two decades, the process by which judicial appointments


are made has been radically altered in many countries of the
Commonwealth to meet the expectations of an increasingly informed
public. (Emphasis supplied)
(Speech to the Commonwealth Law Conference, Independence of the
Judiciary and the Legal Profession, 13 April 2015, available at
<http://www.scotlandjudiciary.org.uk/Upload/Documents/LPCommonwealthLawConferencekeyno
tespeech13April2015.pdf>)

66. The

Latimer

House

Principles

(Commonwealth

Principles

on

the

Accountability of and relationship between the three branches of the


Government) also underscore the importance of transparency in the
appointment process as a necessary ingredient of preserving judicial
independence. They provide that jurisdictions should have an appropriate
independent process in place for judicial appointments and where no
independent system already exists; appointments should be

39

made by a Judicial Services Commission established by the constitution or


statute. These principles provide that judicial vacancies should be
advertised and that judicial appointments should be made on the basis of
clearly defined criteria and by a publicly declared process.
(Commonwealth (Latimer House Principles) on the Three Branches of
Government,

2003,

available

at

<www.cpahq.org/cpahq/cpadocs/Latimer%20House%20Principles.pdf>)

67. The need for transparency and accountability through the publics right to
know becomes all the more necessary since the higher courts in India not
only perform their traditional role as adjudicators of disputes between
citizens or between citizen and the State, but also a non-traditional role
under the PIL jurisdiction where they have taken on wide ranging issues on
public matters. On account of this unique, unconventional role played by
the higher judiciary in India, affecting wide ranging matters of public
importance which affect millions of citizens, there is a greater need for
transparency and openness in the matter of judicial appointments.
68. In Renu and Ors. v. District and Sessions Judge, Tis Hazari Courts, Delhi
and Anr. (2014) 14 SCC 50, Chauhan J. observed the need for greater
transparency in the matter of appointments to any judicial institution
(applicable even to Class IV employees in subordinate Courts), in general (at
pp. 56-57):
4. .Our basic concern is that the appointments in judicial
institutions must be made on the touchstone of equality of
opportunity enshrined in Article 14 read with Article 16 of the

40

Constitution of India and under no circumstance any appointment


which is illegal should be saved for the reason that the grievance of
the people at large is that complete darkness in the lighthouse has
to be removed. The judiciary which raises a finger towards actions of
every other wing of the society cannot afford to have this kind of
accusations against itself.

The same principle ought to be applied for appointment of judges.


69. In Inderpreet Singh Kahlon and Ors. v. State of Punjab and Ors. (2006)
11 SCC 356, Bhandari J. also observed the need for transparency in light of
the wide impact such appointments have on the public at large (at p. 402):
102. .before appointing the constitutional authorities, there
should be a thorough and meticulous inquiry and scrutiny regarding
their antecedents. Integrity and merit have to be properly
considered and evaluated in the appointments to such high positions.
It is an urgent need of the hour that in such appointments absolute
transparency is required to be maintained and demonstrated. The
impact of the deeds and misdeeds of the constitutional authorities
(who are highly placed), affect a very large number of people for a
very long time, therefore, it is absolutely imperative that only
people of high integrity, merit, rectitude and honesty are appointed
to these constitutional positions.
b. The setting up of the NJAC for the purpose of appointment of judges
has the advantage of bringing in transparency and accountability in the
appointments process thereby fulfilling the constitutional mandate of the
citizens right to know

70. It is respectfully submitted that the right to information has been held to be
an integral part of the right to free speech and expression under Article
19(1)(a) of the Constitution and the same has been recognised by this
Honble Court as well in a catena of decisions.

41

71. In Indian Express Newspapers v. Union of India (1985) 1 SCC 641, this
Honble Court per Venkataramiah J. upheld (at pp. 685-686) the right to
information as being part of the freedom of speech and expression and
relied on the dictum of Lord Simon of Glaisdale in Attorney General v.
Times Newspapers Ltd (1973) 3 All ER 54 at p. 81:
68. The public interest in freedom of discussion (of which the
freedom of the press is one aspect) stems from the requirement that
members of a democratic society should be sufficiently informed
that they may influence intelligently the decisions which may affect
themselves. Freedom of expression, as learned writers have
observed, has four broad social purposes to serve: (i) it helps an
individual to attain self-fulfilment, (ii) it assists in the discovery of
truth, (iii) it strengthens the capacity of an individual in
participating in decision-making, and (iv) it provides a mechanism by
which it would be possible to establish a reasonable balance between
stability and social change. All members of society should be able to
form their own beliefs and communicate them freely to others. In
sum, the fundamental principle involved here is the peoples right to
know. Freedom of speech and expression should, therefore, receive a
generous support from all those who believe in the participation of
people in the administration
72. In State of U.P. v. Raj Narain (1975) 4 SCC 428, which involved the
question of government privilege under Section 123 of the Evidence Act, this
Honble Court observed per Ray CJI(at p. 453):
74.In a government of responsibility like ours, where all the agents
of the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not absolute,
is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public
security.
73. In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers Bombay (P) Ltd. (1988) 4 SCC 592, this Honble Court
42

interpreted the right to know as emanating from the right to life. Mukharji
J. observed (at p. 613):
34.We must remember that the people at large have a right to
know in order to be able to take part in a participatory development
in the industrial life and democracy. Right to know is a basic right
which citizens of a free country aspire in the broader horizon of the
right to live in this age on our land under Article 21 of our
Constitution. That right has reached new dimensions and urgency.
The right puts greater responsibility upon those who take upon
themselves the responsibility to inform.
74. It is respectfully submitted that the NJAC, will be a public authority under
Section 2(h) of the Right to Information Act, 2005, open to scrutiny and
accountability. At the time when the Second Judges case was decided,
there was no statutory right to information. Today the right to information
is the norm and secrecy the exception. This is the principle that is sought to
be captured by Parliament by the 99th Amendment.

75. It is also humbly submitted that there should be a considerable degree of


accountability in the judicial appointments process. The judiciary, as
explained earlier as well, has the power to strike down laws enacted by the
Parliament and State legislatures. Hence, a significant measure of
accountability in appointments is necessary. With the increase in judicial
power and the political significance of judicial decisions, the need for
accountability in the appointment process has increased.
76. In judicial accountability literature, modes of enforcing accountability can
be divided into hard and soft accountability measures. Significantly for
the functioning of the NJAC, soft accountability measures can be understood
as ex ante measures which can neither be
43

enforced politically, nor set up as mechanisms enforcing consequences for


judicial

misconduct.

While

soft

accountability

measures

are

not

accompanied by sanctions of severe intensity, they lead to greater openness


and transparency in the judicial appointments process. These can be
distinguished from hard accountability measures, such as the power of
political authorities to remove judges under specific circumstances.
(Arghya Sengupta, Judicial Accountability: A Taxonomy, 2014 (April)
Public Law 245, at 262).
77. It is humbly submitted that under section 13 of the NJAC Act, every rule and
regulation made by the NJAC (under section 12) shall be laid before each
House of Parliament. Under Section 12, the NJAC can make regulations
regarding, inter alia, the suitability criteria, and the procedure and
conditions of selection and appointment of Supreme Court as well as High
Court judges.
78. It is humbly submitted that the NJAC is accountable to Parliament in
framing regulations for the matters mentioned in section 12 of the
NJAC Act. Additionally, the presence of the Law Minister ensures that the
NJAC is accountable to the public at large. Also, the presence of the two
eminent persons, who will be entirely independent, is also intended to be
a check and balance on the functioning of the other members on the
NJAC. Simply put, the
ensure

diversity of the

members

greater soft accountability of

each

on

the NJAC would

member to

one

another. Soft accountability measures such as these can be ushered


44

into the judicial appointments process because of the establishment of the


NJAC, which would ensure greater public confidence in the functioning of
the judiciary.

79. In light of the above, it is humbly submitted that:


a. The matter of appointments of judges to the higher judiciary
requires some level of transparency and accountability for the
public to repose confidence in the judiciary.
b. The NJAC, being a public body, would fall under the purview of
the Right to Information Act, 2005 thereby ensuring transparency
in its functioning.
c. The composition of the NJAC would ensure that each functionary
who forms part of the Commission would be accountable to each
other, by means of the system of checks and balances.

45

V.

Section 3 of the 99th Amendment inserting Article 124A(2) does not


abrogate the basic structure of the Constitution

80. The 99th Amendment inserts Article 124A into the Constitution, clause (2) of
which lays down:
Article 124A(2): No act or proceedings of the National Judicial
Appointments Commission shall be questioned or invalidated merely
on the ground of the existence of any vacancy or defect in the
constitution of the Commission.
81. It is humbly submitted that clause (2) of Article 124A is meant to ensure
that a constitutional process is not held up due to unavailability of one or
more of its members, since any defect in its constitution or vacancy would
not substantially impact the appointment.
82. According to Article 124A, the NJAC is to consist of 6 members - the Chief
Justice of India as the Chairperson, 2 other senior judges of the Supreme
Court next to the Chief Justice, the Law Minister and 2 eminent persons to
be selected by a 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 the single
largest Opposition Party in the House of the People. Thus, 4 members out of
the 6 in the NJAC are ex officio and would ordinarily always be available.

83. It is also respectfully submitted that a clause of this nature is not novel to
the 99th Amendment. Such clauses can be found in a number of statutes
enacted by the Parliament. A list

of Acts with a similar clause can be

found at Annexure VIII. This Honble Court has time and again

46

upheld the validity of such enactments and has in fact given these provisions
a wide interpretation.

84. In Bangalore Woollen Cotton and Silk Mills Co. v. Corporation of


Bangalore(1961) 3 SCR 707, Kapur J. held (at p. 707):
4. It is unnecessary in this case to discuss the relevance of marginal
notes in the construction of section 38(1)(b) because in our opinion
the language is unambiguous and clear and it validates any defect in
any act done or proceedings taken under the Act and makes it
immune from being questioned on the ground of any defect or
irregularity in such act or proceedings not affecting the merits of the
case and merely because it is in a chapter dealing with Municipal
Authorities or other parts of the section dealing with another
subject is no reason for confining its operation to the defects
contended for by the appellants.
85. In Khadim Hussain v. State of Uttar Pradesh(1976) 1 SCC 843, this
Honble Court observed per Beg J. (as he then was) (at p. 847):
14. A notification under Section 8 was probably quite unnecessary
by reasons of Sections 96 and 97 of Adhiniyam of 1966 which
repealed U.P. Act No. VIII of 1919 and dissolved the trust "on and
from the date on which" the Adhiniyam came into force in an area.
However, even assuming that the date of the coming into force of
the Adhiniyam and, therefore, the repeal of the Act for Gorakhpur
was subsequent to 21st February, 1966, the absence of a notification
under Section 8 could not, in our opinion, invalidate any proceeding
of the trust. It was conceded that a notification under
Section 8 could have been combined with the notification under
Section 4(2). Even if, strictly speaking, a notification under
Section 8 should have followed soon after the notification under
Section 4(2) of the Act of 1919, yet, Section 100 prevents any such
technical irregularity from invalidating any proceeding of the trust,
including the framing and implementation of the scheme before us.
86. In BK Srinivasan v. State of Karnataka (1987) 1 SCC 658, a two-Judge
bench of this Honble Court heldper Chinappa Reddy J. (at p. 675):
47

18.The High Court was of the view that such defect as there was in
regard to publication of the Plan was cured by Section 76J the
Omnibus Curative clause to which we earlier made a reference as the
'Ganga' clause. Provisions similar to Section 76J are found in several
modern Acts and their object is to put beyond challenge defects of
constitution of statutory bodies and defects of procedure which have
not led to any substantial prejudice.We are inclined to agree with
the High Court that a defective publication which has otherwise
served its purpose is not sufficient to render illegal what is
published and that such defect is cured by Section 76J.

87. In Peoples Union for Civil Liberties v. Union of India (2005) 5 SCC 363,
it was heldper Santosh Hegde J. (at p. 371):
15. It is nextly argued by the learned counsel for the petitioner
that there was no proper consultation amongst the members of the
Selection Committee. This is based on the fact that one of the
members who was then the Leader of Opposition in the Council of
States did not respond to the intimation sent to him in regard to the
selection of the members since he was in hospital at that point of
time. A perusal of the Act does not show that there is any quorum
fixed for the selection nor does it provide for any meeting nor has
any particular procedure been provided for. Under the Act,
consultation by circulation is not impermissible. In such a situation,
if one out of six did not respond, it would not vitiate the opinion of
the other five members. On the contrary sub-section (2) of Section 4
specifically says that no appointment of a Chairperson or a member
shall be invalid merely by reason of any vacancy in the Committee.
In the instant case the Prime Minister, the Speaker of the House of
the People, Minister in charge of the Ministry of Home Affairs in the
Government of India, Leader of Opposition in the House of the
People and Deputy Chairman of the Council of States having agreed
on the appointment of the second respondent, we find no statutory
error in the appointment of the second respondent.
88.

Analogous provisions can also be found in Article 100(2) and Article

189(2) of the Constitution. Article 100(2) reads:


Either House of Parliament shall have power to act notwithstanding
any vacancy in the membership thereof, and any proceedings in
Parliament shall be valid notwithstanding that it is discovered
subsequently that some person who was not entitled so to do sat or
voted or otherwise took part in the proceedings.
48

Article 189(2) reads:


Article 189(2): A House of the Legislature of a State shall have
power to act notwithstanding any vacancy in the membership
thereof, and any proceedings in the Legislature of a State Parliament
shall be valid notwithstanding that it is discovered subsequently that
some person who was not entitled so to do sat or voted or otherwise
took part in the proceedings.

89.

In light of the above, it is respectfully submitted that Section 3 of the

99th Amendment inserting Article 124A(2) is not violative of the


independence of judiciary but is a means to ensure that a procedural
irregularity is not allowed to hamper appointments to the Supreme Court or
the High Courts. Hence, such a challenge to its constitutional validity is not
sustainable.

49

VI.

Section 3 of the 99th Amendment Act inserting Article 124C does not
abrogate the basic structure of the Constitution
a. Independence of the judiciary does not mean independence from
Parliamentary law

90. Article 124C reads,


Article 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.

91. It has been contended by Mr. Arvind Datar, learned Senior Counsel, that the
provision affects the independence of the judiciary by allowing Parliament
the final say with regard to the procedure governing appointments. To meet
this contention, it is necessary to understand what Article 124C provides and
correlate it with what independence of the judiciary entails.

92. Article 124C empowers the Parliament in two respects: first, it vests
Parliament with the legislative competence to regulate the procedure for
appointment of Supreme Court and High Court judges; second, it provides
the legal basis for the Parliament to empower the NJAC to lay down by
regulations the procedure for discharge of its functions, manner of selection
of persons and other matters considered necessary.

50

93. From the Constituent Assembly Debates as well as the scheme of the
Constitution, it is clear that independence of the judiciary does not mean
independence from Parliamentary law. Further, no precedent of this
Honble Court has held this to be so.
94. This proposition is borne out clearly from the Constituent Assembly Debates.
Article 50 of the Constitution which forms a part of the Directive Principles
of State Policy states,
State shall take steps to separate the judiciary from the executive in
the public services of the State
However, it is pertinent to note that the Constituent Assembly
rejected Professor KT Shahs amendment to this article in the Draft
Constitution which sought independence from Parliament as well.
Per KT Shah, 23rd May 1949 (Constituent Assembly Debates, Vol. VIII,
Book 3, p. 218):
Sir, I move:
That under Chapter IV of Part V, the following new article be
added:102-A. Subject to this constitution the Judiciary in India shall be
completely separate from and wholly independent of the Executive
or the Legislature.
[Mr. K.T Shah while proposing Article 102-A stated]In this amendment: it is not merely the separation of judiciary from
the Executive, but also its independence, and I want it to be also
separate from the legislature and the executive.
In response, KM Munshi on 23rd May 1949 (Constituent Assembly
51

Debates, Vol. VIII, Book 3, p. 220-221) opposing the inclusion of


Article 102A stated,
This Constitution is based on an entirely different principle,
adopting the British Model. We have invested the Judiciary with as
much independence as is possessed by the Privy Council in England
and to large extent, by the Supreme Court of America; but any
water-tight compartment of powers have been rejected. That is with
regard to separation of powers.
Professor Shahs amendment was subsequently rejected.
95. Therefore, it is evident that the framers of the Constitution expressly
rejected the idea of including a standalone Article which made the judiciary
independent from both the legislature and executive thus importing
separation of powers in strict terms within our Constitution and instead
retained a directive principle which imposes an obligation on the state to
separate judiciary only from the executive in public services of the state.

96. While explaining the principle of independence of judiciary Raveendran J. in


the NCLT case held (at p. 22):
15. Impartiality, independence, fairness and reasonableness in
decision making are the hallmarks of Judiciary. If Impartiality is
the soul of Judiciary, Independence is the life blood of Judiciary.
Without independence, impartiality cannot thrive. Independence is
not the freedom for Judges to do what they like. It is the
independence of judicial thought. It is the freedom from
interference and pressures which provides the judicial atmosphere
where he can work with absolute commitment to the cause of justice
and constitutional values. It is also the discipline in life, habits and
outlook that enables a Judge to be impartial. Its existence depends
however not only on philosophical, ethical or moral aspects but also
upon several mundane things - security in tenure, freedom from
ordinary monetary worries, freedom from influences and pressures

52

within (from others in the Judiciary) and without (from the


Executive).
97. It is clear from this as well as the catena of precedents cited above that
while independence of the judiciary connotes the freedom to adjudicate
free of internal pressures from within the judiciaryand several extraneous
pressures, no extraneous pressures from Parliament have been considered as
violative of it. A principle of judicial independence which seeks
independence from Parliament would be an anomaly in the framework of
the Constitution.

b. Parliament has powers to enact laws governing various aspects relating


to the functioning of judiciary
98. It is critical to examine the power vested by the Constitution in Parliament
pertaining to facets of judicial functioning.
99. Article 124(4) of the Constitution vests both houses of the Parliament with
the critical power of impeaching a judge of the Supreme Court by laying
down,
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-third of the members of the House present and voting has been
presented to the President in the same session for such removal on
the ground of proved misbehavior or incapacity.
100.

Similarly, Article 217(1)(b) of the Constitution vests both houses of

the Parliament with the power of impeaching a judge of the High Court by
stating:
53

Article 217(1)(b): 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;
101.

Further, Article 124(5) of the Constitution also empowers the

Parliament to make laws regulating the procedure of impeachment of a


Supreme Court Judge
Article 124(5): Parliament may by law regulate the procedure for
the presentation of an address and for the investigation and proof of
the misbehavior or incapacity of a Judge under clause (4)
102.

Consequently, the Parliament has enacted the Judges (Inquiry) Act,

1968 to regulate the procedure of investigation during impeachment


proceedings.

In

Mrs.

Sarojini

Ramaswami

v.

Union

of

India

(1992)4SCC506 this Honble Court held per Verma J. (at p. 536):


24.Article 124(5) mandates enactment of a parliamentary law to
regulate the investigation and proof of misbehaviour or incapacity of
a Judge under Clause (4) and pursuant to it the Judges (Inquiry) Act,
1968 has been enacted by the Parliament.
Further, the Preamble of the Judges (Inquiry) Act,1968 clearly states
that it is,
An Act to regulate the procedure for the investigation and proof of
the misbehaviour or incapacity of a Judge of the Supreme Court or of
the presentation of an address by Parliament to the President and for
matters connected therewith.
103.

Similarly, Article 125 of the Constitution also allows the Parliament to

enact laws determining the salaries, pension and other privileges of Judges
of Supreme Court:

54

Article 125(1): There shall be paid to the Judges of the Supreme


Court such salaries as may be determined by Parliament by law and,
until provision in that behalf is so made, such salaries as are specified
in the Second Schedule.
Article 125(2): Every Judge shall be entitled to such privileges and
allowances and to such rights in respect of leave of absence and
pension as may from time to time be determined by or under law
made by Parliament and, until so determined, to such privileges,
allowances and rights as are specified in the Second Schedule:
Provided that neither the privileges nor the allowances of a Judge nor
his rights in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.
104.

In pursuance of this power, Parliament enacted the Supreme Court

Judges (Salaries and Conditions of Service) Act, 1958 which has been
amended from time to time. An analogous constitutional provision and
statute exists pertaining to High Court judges. Article 221 of the
Constitution allows the Parliament to enact laws determining the salaries,
pension and other privileges of Judges of High Court:
Article 221(1): There shall be paid to the Judges of each High Court
such salaries as may be determined by Parliament by law and, until
provision in that behalf is so made, such salaries as are specified in
the Second Schedule.
Article 221(2): Every Judge shall be entitled to such allowances and
to such rights in respect of leave of absence and pension as may from
time to time be determined by or under law made by Parliament and,
until so determined, to such allowances and rights as are specified in
the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his
disadvantage after his appointment.
105.

In pursuance of the power under Article 221(1), Parliament enacted

the High Court Judges


which

has

been

(Salaries

amended

and

from

Conditions of Service) Act, 1954


time

to time. Similar provisions

55

pertaining to other aspects of judicial functioning exist throughout Chapter


IV of Part V and Chapter V of Part VI of the Constitution as demonstrated in
the historical background to the constitutional provisions pertaining to the
judiciary (See Annexure III).

106.

In light of the aforementioned constitutional provisions, it is evident

that the framers of the Constitution have themselves vested in the


Parliament the power to legislate upon critical aspects of the judiciary
including the power to remove Supreme Court and High Court judges and fix
salaries. Both these, the method of removal and fixed salaries, are vital for
securing judicial independence being aspects pertaining to the tenure of
judges. The framers could not have intended to vest such power in
Parliament, if merely by such act, the independence of the judiciary would
have been affected. Further, such vesting has been positively looked upon
by the Courts while considering them in the context of the independence of
the judiciary. It is therefore respectfully submitted that principle of judicial
independence does not mean the insulation of judiciary from any enactment
of Parliament and the Parliament has the authority to legislate upon
matters that impact the key functions of the judiciary.

c. The Parliament has the authority to enact laws laying down the
suitability criteria pertaining to the appointment and selection of
judges of the Supreme Court and High Courts

56

107.

This Honble Court while explaining the difference between

eligibility criteria and suitability criteria in Mahesh Chandra Gupta v.


Union of India (2009) 8 SCC 273heldper Kapadia CJI (at p. 290-91):
39. At this stage, we may state that,there is a basic difference
between eligibility and suitability. The process of judging the
fitness of a person to be appointed as a High Court Judge falls in the
realm of suitability. Similarly, the process of consultation falls in
the realm of suitability. On the other hand, eligibility at the
threshold stage comes under Article 217(2)(b). This dichotomy
between suitability and eligibility finds place in Article 217(1) in
juxtaposition to Article 217(2)
41.The appointment of a Judge is an executive function of the
President. Article 217(1) prescribes the constitutional requirement
of consultation. Fitness of a person to be appointed a Judge of the
High Court is evaluated in the consultation process (see Basus
Commentary on the Constitution of India, Sixth Edition, p. 234). Once
this dichotomy is kept in mind, then, it becomes clear that
evaluation of the worth and merit of a person is a matter entirely
different from eligibility of a candidate for elevation. Article 217(2),
therefore, prescribes a threshold limit or an entry point for a person
to become qualified to be a High Court Judge whereas
Article 217(1) provides for a procedure to be followed before a
person could be appointed as a High Court Judge, which procedure is
designed to test the fitness of a person to be so appointed: his
character, his integrity, his competence, his knowledge and the like.
Hence, Article217(1) and Article 217(2) operate in different
spheres.
108.

It is to be noted that while Article 217(2) of the Constitution lays

down the qualifications required to be appointed as a judge of a High Court,


Article 217(1) states:
Article 217(1): Every Judge of a High Court shall be appointed by the
President by warrant under his hand and seal after consultation with
the Chief Justice of India, the Governor of the State, and, in the case
of appointment of a Judge other than the chief Justice, the chief
Justice of the High court, and shall hold office, in the case of an

57

additional or acting Judge, as provided in Article 224, and in any


other case, until he attains the age of sixty two years:
Provided that
(a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a Judge may be removed from his office by the President in the
manner provided in clause (4) of Article 124 for the removal of a
Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by
the President 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.
109.

Similarly in case of appointment of Judges of the Supreme Court,

Article 124(3) of the Constitution only laid down the eligibility criteria of
being appointed as a Judge of the Supreme Court by enumerating the
qualifications requiredArticle 124(3): A person shall not be qualified for appointment as a
Judge of the Supreme Court unless he is a citizen of India and-(a) has been for at least five years a Judge of a High Court or of two
or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of
two or more such courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
110.

Therefore, it is submitted that the framers of the Constitution in

Article 124(3) and Article 217(1) only included the requirement of


consultation
qualify

and

as fitness

did not lay down specific indicators of what would


of a

person

to be appointed as a Judge. The

Constitution has only laid down the eligibility criteria for appointment
of judges and the consultation procedure which is the manner in which
the s uitability of a candidate is assessed is not enumerated in the
58

Constitution as stated earlier, but is considered as part of the


Memorandum Showing the Procedure for Appointment and Transfer of
Chief Justices and Judges of High Courts. (See Annexure IX)

111.

Similarly, the Memorandum Showing the Procedure for Appointment

of the Chief Justice of India and Judges of the Supreme Court of India (See
Annexure X) enumerates seniority as an indicator of suitability of a
candidate for appointment as Chief Justice of India by laying down, at para
2:
Appointment to the office of the Chief Justice of India should be of
the seniormost Judge of the Supreme Court considered fit to hold the
office. The Union Minister of Law, Justice and Company Affairs
would, at the appropriate time, seek the recommendation of the
outgoing Chief Justice of India for the appointment of the next Chief
Justice of India.
Whenever there is any doubt about the fitness of the seniormost
Judge to hold the office of the Chief Justice of India, consultation
with other Judges as envisaged in Article 124(2) of the Constitution
would be made for appointment of the next Chief Justice of India.
112.

In light of the aforementioned, it is submitted that the framers of the

Constitution have enumerated only the eligibility criteria with respect to


certain important constitutional posts such as the judges of Supreme Court
and High Courts and subsequently the executive and judiciary has
elaborated on suitability criteria of candidates through the consultative
process.

Therefore, it

include
Constitution

is submitted

suitability criteria

that

within

as has been canvassed

it is
the

not

imperative to

provisions

of the

by Mr. Datar. A task thus far

undertaken by the executive and judiciary can be vested by the

59

Constitution in Parliament without the independence of the judiciary being


affected in any manner whatsoever.
113.

On the basis of the aforementioned arguments, it is clear that the

Parliament has power to legislate on critical aspects relating to the


judiciary. Independence of the judiciary is not absolute, and does not
connote independence from Parliamentary law governing the functioning of
the judiciary. This was also the intention of the framers of the Constitution,
as is evident from the Constituent Assembly Debates cited above. In
pursuance of this power, the Parliament has enacted relevant laws for
judges inquiry as part of the impeachment process as well as conditions of
service of judges of the higher judiciary. On this basis, it is submitted that:
a. Section 3 of the 99th Amendment Act inserting Article 124C does not
violate the principle of independence of judiciary.
b. Independence of the judiciary does not mean that the Parliament has
no power to enact a law which governs the functioning of judiciary.
c. Parliament has the competence to enact laws, and empower the
NJAC to frame regulations laying down the suitability criteria
pertaining to the appointment and selection of judges of the Supreme
Court and High Courts.

60

G. SUMMARY OF SUBMISSIONS
In light of the above arguments, it is humbly submitted that:
I.

The 99thAmendment which establishes the NJAC is constitutionally


valid.

II.

The absence of absolute judicial primacy on the NJAC does not


abrogate the basic structure of the Constitution.

III.

The presence of two eminent persons on the NJAC is constitutionally


valid and necessary to select the most appropriate persons for
judicial office.

IV.

The presence of the Union Minister for Law and Justice of the
Government of India does not affect the independence of the
judiciary, is constitutionally valid and necessary to select the most
appropriate persons for judicial office.

V.

Section 3 of the 99th Amendment Act inserting Article 124A(2) and


Article 124C does not affect the independence of the judiciary and is
constitutionally valid.

61