A.

WHETHER THE ASSAILED CONSTITUTION AMENDMENT AND THE

NJAC ACT 2014 IS UNDERMINING THE INDEPENDENCE OF JUDICIARY.
In the instant petition, the main argument that lies for consideration for this Honble Court is
that the assailed Constitution Amendment Act and the NJAC Act, 2104 is violating the
concept of Independence of Judiciary as has been judicially evolved by the state of Valston
through its judgement rendered in Second1 and Third Judges Case.2
First to understand the concept, Independence of the Judiciary means that the judiciary as the
wing of the government should be free from the influence and control of the other two organs
i.e. the executive and the legislature of government as Judiciary is the sentinel of the
Constitution and its fundamental values and is considered as the lifeblood of
constitutionalism in democratic societies.
In the instant case, the passing of the impugned legislation has taken away such role and
power of Judiciary as explained above. By placing reliance on the First Judges Case3 decided
by this Honble Court, whereby this court proceeded on the assumption that the Independence
of Judiciary is the basic feature of the Constitution but failed to appreciate that the
interpretation, it gave, was not in conformity with wider facets of the two concepts i.e.
Independence of Judiciary and Judicial Review - which are interlinked and interconnected
to each other.
If there is one principle which is pervasive through the entire fabric of the Constitution, it is
the principle of the rule of law and under the Constitution, it is the judiciary which is
entrusted with the task of keeping every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective. 4
Further it was held that, the principle of independence of the judiciary had to be kept in
mind, while interpreting the provisions of the Constitution5.
1 Supreme Court Advocates on Record v Union of India, 1993 4 SCC 441
2 Special Reference No.1 of 1998, (1998) 7 SCC 739
3 S.P. Gupta v. Union of India, 1981 (Supp) SCC 87
4 Ibid,
5 (Paragraph 27).

Now, again by considering the Second Judges Case, decided by this Honble Court, it is to be
said that the position adopted of a nine-Judge Bench, by a majority of 7:2, regarding this, the
primacy of opinion was given to the Chief justice of Valston in the matters of appointment of
Judges to the higher judiciary, and a conclusion was made that the judgment rendered in the
First Judges case, did not lay down the correct law.
One of the Judges on the Bench, who supported the minority opinion, also endorsed the view,
which the action of the executive to put off the recommendation(s) made by the Chief Justice
of India, would amount to an act of deprival, Violating the Spirit of the Constitution. The
Second Judges case, almost unanimously concluded, that in the matter of selection and
appointment of Judges to the higher judiciary, primacy in the decision making process,
unquestionably rested with the judiciary.
It is further argued that the principles laid down in the Second and Third Judges cases by this
Honble Court are not based purely on the interpretation of the text of the Constitution as it
stood prior to the impugned amendment but also on the basis of a fundamental Constitutional
principle that an Independent Judiciary is one of the basic features of the Constitution. The
procedure for appointment of the Judges to the higher judiciary is an important element in the
establishment and nurturing of an Independent Judiciary.
It is now submitted that, the independence of judiciary is intimately linked and connected
with the constitutional process of appointment of judges of the higher judiciary and it is well
established now that the Independence of Judiciary is the basic feature of our Constitution.
Now, to contend that the Impugned Constitutional Amendment and the NJAC Act, 2104 are
undermining the principle of Independence of Judiciary, certain questions are needed to be
answered:
I.

THE IMPUGNED AMENDMENT IS AGAISNT THE PROCESS OF JUDICIAL

REVIEW.

It is submitted, that Independence of the Judiciary had been held to mean, insulation of the
higher judiciary from executive and legislative control. Within the powers of an independent
judiciary the exclusive process of Judicial Review is linked and the exercise of such
important function, determines that Judiciary is unrestrained from the other two organs of the
government.

The Indian Supreme Court through its Seven-Judge Bench 6 has held that the power of
Judicial Review of legislative action by the Supreme Court and High Courts is part of the
Basic Structure of the Constitution.
While drafting the Constitution of Valston attempts were directed at ensuring that while using
its powers, the judiciary would be capable of effectively discharging its wide powers of
Judicial Review. While the Constitution confers the power to strike down laws made by the
legislature upon the High Courts and the Supreme Court. The Judges of the superior courts
have been entrusted with the task of upholding the Constitution, and to this end, have been
conferred the power to interpret it with respect to the statutes passed by the legislature.
It is to be noted that, the other two organs of the state could not act arbitrarily regarding their
actions with respect to the discharge of public duties. The judicial review provided expressly
in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges
the system of Checks and Balances and further the concept of Independence of Judiciary
and Judicial Review are interlinked.7
To state the eloquent words of Justice Krishna Iyer, of the Indian Supreme Court, that
Independence of the judiciary is not genuflexion, nor is it opposition of Government. It is
submitted, that under the Constitution of Valston the constitutional safeguards which ensure
the Independence of the Judges of the superior judiciary, are not available to the Judges of the
subordinate judiciary or to those who man tribunals created by ordinary legislations. We,
therefore, hold that the power of judicial review over legislative action vested in the High
Courts under Article 226 and in this Court under Article 32 of the Constitution as an integral
and essential feature of the Constitution, constituting part of its Basic Structure.8
The Indian Supreme Court, in the Fundamental Rights Case 9 held that, There is ample
evidence in the Constitution itself to indicate that it creates a system of Checks and Balances
by reason of which powers are so distributed that none of the three organs it sets up can
become so pre-dominant as to disable the others from exercising and discharging powers and
6 L Chandra Kumar v. Union of India & Ors., AIR 1997 3 SCC 261
7
8 (paragraph 78)
9 Kesavananda Bharati v. State of Kerala, 366 (1973) 4 SCC 225

functions entrusted to them. Though the Constitution does not lay down the principle of
Separation of Powers in all its rigidity.
In the instant matter, the brazen attempt led by the executive to usurp the power and engulf
the sacred pillar of Judicial Independence by enacting section 2(a) of the impugned
constitutional amendment is against the very premise of the system of appointment which
were originally enacted in the constitution of Valston.
The question which arises before us is regarding the nature of the standards of judicial review
required to be applied in judging the validity of the constitutional amendments in the context
of the doctrine of Basic Structure.
Based on the above conclusions, it is submitted, that Independence of the Judiciary could
be maintained, only if appointments of Judges to the higher judiciary, were made accordingly
to the judgement given by this Honble Court in the Second Judges Case where the primacy
to appoint the members of the higher judiciary lied with the Chief Justice and further the
decision was based on the decision of a collegium of Judges. Only then, the executive and
legislative invasion, could be effectively controlled and curbed.

II.

THE IMPUGNED CONSTITUTIONAL AMENDMENT IS UNDER EXECUTIVE

CONTROL
It is submitted, that in a modern society the individual citizen is subject to controls
imposed by the executive in respect of almost every aspect of life. The authority to
impose most of those controls comes, directly or indirectly, from the legislature. The
citizenry must be able to challenge the legitimacy of executive action before an
Independent Judiciary.10
It may not be possible to frame an exhaustive definition of what executive function
means and implies. Ordinarily the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions are taken away. The
Constitution of Valston has not indeed recognised the doctrine of Separation of Powers in
its absolute rigidity but the functions of the different parts or branches of the Government
have been sufficiently differentiated. The executive Government, however, can never go

10 https://www.ucl.ac.uk/constitution-unit/events/judicial-independenceevents/lord-phillips-transcript.pdf

against the provisions of the Constitution or of any law. As Judiciary is said to be the
Sentinel on the Qui Vive, it shall remain independent and free from political executive
influence.
The Indian Supreme Court held that11, It may not be possible to frame an exhaustive and
comprehensive definition of what executive function means but the executive, however, can
never go against the provisions of the Constitution or of any law.

It is submitted that w.r.t the impugned constitutional amendment which lays down the
procedure of setting up of a commission, talks about the inclusion of two eminent persons.
It has to be seen, that the Chief Justice of Valston, would now have an equivalent voting right,
as the other Members of the NJAC even though the Chief Justice of Valston would be the
Chairman of the NJAC, he has no casting vote, in the event of a tie.
It is clear, that under the replaced procedure, even if the Chief Justice of Valston, and the two
other senior Judges of the Supreme Court (next to the Chief Justice of Valston), supported the
appointment/transfer of an individual, the same could be repulsed, by any two Members of
the NJAC by applying the power of Veto. Even by the two eminent persons who may have
no direct or indirect nexus with the process of administration of justice. It is therefore
submitted, that the primacy vested with the Chief Justice of Valston had been fully and
completely eroded.
It is further submitted that there could be a compromise between the Union minister in
charge of law and those two eminent persons to stall the recommendation given by the
persons from Judicial Fraternity. Such possibility would eventually enable executive to
make appointments purely on political considerations
It has to be borne in mind that the principle of non-arbitrariness which is an essential
attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this
principle is the absence of absolute power. In other words, the view of the Chief Justice of
India is to be expressed in the consultative process as truly reflective of the opinion of the
judiciary, which means that it must necessarily have the element of plurality in its formation.
In actual practice, this is how the Chief Justice of India does, and is expected to function so
that the final opinion expressed by him is not merely his individual opinion, but the collective
11 Ram Jawaya Kapur v. State of Punjab, [1955] 2 SCR 22

opinion formed after taking into account the views of some other Judges who are traditionally
associated with this function.
To conclude, it is to be said that the entrustment in the matter of appointment of higher
judiciary shall be let in the hands of the judiciary itself, who is best equipped to assess the
true worth of the candidates for adjudging their suitability. It has been clear, that the term
consultation with reference to Article 124, had been understood as conferring primacy with
the judiciary. Under Article 124, the President was not required to merely consult the Chief
Justice of India, but the executive was to accede to the view expressed by the Chief Justice of
India. Insofar as the term Chief Justice of India is concerned, it has also been understood
to mean, not the individual opinion of the Chief Justice of India, but the opinion of the
judiciary symbolized through the Chief Justice of India.
After all, a Brother has the right to choose a Brother.