(Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)
Writ Petition(s) (Civil) No(s). 13/2015
Supreme Court Advocates-on-Record Association and Another ______ Petitioner(s)
v.
Union of India _____________________________________ Respondent
With
W.P.(C) No. 23/2015, W.P.(C) No. 70/2015, W.P.(C) No. 83/2015, T.P.(C) No. 391/2015, W.P.(C) No. 108/2015, W.P.(C) No. 124/2015, W.P.(C) No. 14/2015, W.P.(C) No. 18/2015, W.P.(C) No. 24/2015, W.P.(C) No. 209/2015, decided on April 22, 2015
The Judgement of the court was delivered by
Order
A preliminary objection, whether Justice Jagdish Singh Khehar should preside over this Bench, by virtue of his being the fourth senior most Judge of this Court, also happens to be a member of the collegium, was raised by the petitioners. Elaborate submissions were made by the learned counsel for the petitioners and the respondents. After hearing all the learned counsel, we are of the unanimous opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar to recuse himself from hearing the matter. Reasons will follow.
Issue rule.
Mr. Mishra Saurabh, Advocate waives service on behalf of the State of Madhya pradesh.
The general consensus, of the learned counsel representing the rival parties was, that Writ Petition(C) No. 13 of 2015 should be treated as the lead case. We accept the aforesaid recommendation.
The Secretary General of the Supreme Court shall issue notice in the above noted lead case, returnable on 23.04.2015, on all Standing Counsel in this Court, representing all the States. The Secretary General shall also upload, the paper book of Writ Petition(C) No. 13 of 2015, on the Supreme Court Website, so that it can be downloaded and accessed by the learned counsel representing the different States, and by others impleaded therein.
The copies of the other petitions shall be served by the learned counsel appearing for the petitioners, in the office of the learned Attorney General for India. Each of the counsel representing the connected cases, shall file written briefs to indicate the additional issues(if any) arising therein, so as to enable this Court to determine, whether individual hearing is required in such connected matters.
List again on 23.04.2015 at 2.00 p.m.
ORDER
List the matters before a Bench of which one of us (Anil R. Dave, J.) is not a member.
ORDER
Hon’ble Mr. Justice Anil R. Dave pronounced Non-Reportable judgment of the Bench comprising His Lordship, Hon’ble Mr. Justice J. Chelameswar and Hon’ble Mr. Justice Madan B. Lokur.
The Registry to place all the matters of this group before Hon’ble the Chief Justice of India so that they can be placed before a larger Bench for consideration in terms of the signed Non-Reportable Judgment.
ORDER
ANIL R. DAVE, J.
1. In this group of petitions, validity of the constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (hereinafter referred to as âthe Actâ) has been
ORDER
ANIL R. DAVE, J.
1. In this group of petitions, validity of the constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (hereinafter referred to as âthe Actâ) has been challenged. The challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of the Constitution of India has been altered and therefore, they should be set aside.
2. We have heard the learned counsel appearing for the parties and the parties appearing in-person at length.
3. It has been mainly submitted for the petitioners that all these petitions should be referred to a Bench of Five Judges as per the provisions of Article 145(3) of the Constitution of India for the reason that substantial questions. of law with regard to interpretation of the Constitution of India are involved in these petitions. It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act. should not be brought into force and the present system with regard to appointment of Judges should be continued.
4. Sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into forrce, cause of action can not be said to have arisen. In the circumstances, according to the learned counsel, the petitions should be rejected.
5. The learned counsel as well as parties in-person have relied upon several judgments to substantiate their cases.
6. Looking at the facts of the case, we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore, we direct the Registry to place all the matters of this group before Hon’ble the Chief Justice of India so that they can be placed before a larger Bench for its consideration.
7. As we are not deciding the cases on merits, we do not think it appropriate to discuss the submissions made by the learned counsel and the parties in-person.
8. It would be open to the petitioners to make a prayer for interim relief before the larger bench as we do not think it appropriate to grant any interim relief at this stage.
ORDER
T.P.(C) No. 391 of 2015
On an oral request made by the learned Attorney General, order dated 11.03.2015 passed in T.P.(C) 391 of 2015 is hereby modified so as to be read as under (with underlined modifications) :-
âIssue notice, returnable on 17.03.2015.
In view of the fact that the matter Involving the same issue is pending before the High Court of Madras and other High Courts, we direct that there shall be stay of further proceedings in Writ Petition (MD) No. 69 of 2015 titled as âY. Krishnan v. Union of Indiaâ pending before the High Court of Judicature at Madras, Bench at Madurai and all other matters on the said subject shall not be taken up for hearing by any High Court till further orders.
List all the matters on 17.03.2015 at 10.30 A.M. (for whole day).â
W.P.(C) No. 124 of 2015
The application filed by Mr. Mathews J. Nedumpara to argue in person before the Court is rejected. The name of Mr. Robin Mazumdar, AOR, who was earlier appearing for him, be shown in the Cause List.
W.P. (C) No. 13 of 2015, W.P.(C) No. 23 of 2015 W.P.(C) No. 70 of 2015, W.P.(C) No. 83 of 2015, T.P.(C) No. 391 of 2015, W.P. (C) No. 108 of 2015, W.P.(C) No. 124 of 2015.
Mr. F.S. Nariman, learned senior counsel, started his arguments at 11.10 AM and concluded at 11.25 AM. Thereafter, Mr. Anil B. Divan, learned senior counsel, started his arguments and concluded at 11.45 AM. Thereafter, Mr. Mukul Rohtagi, learned Attorney General, started his arguments and concluded.
Arguments concluded.
Judgment reserved.
ORDER
Mr. Dushyant A. Dave, learned senior counsel appearing for the intervenor (Supreme Court Bar Association), started his arguments at 10.45 a.m. and concluded at 11.35 a.m.
Mr. Mukul Rohtagi, learned Additional Solicitor General, made his submissions for a few minutes.
Mr. T.R. Andhyarujina, learned senior counsel made his submissions till 12.30 a.m.
Mr. Mathews J. Nedumpara, learned counsel made his submissions for a few minutes.
Mr. Fali S. Nariman, learned senior counsel appearing for the petitioner in WP(C) No. 13/2015, started his arguments at 12.45 p.m. and could not conclude till 1.00 p.m. when the Court rose.
The matters remained Part-heard.
List the matters on 24th March, 2015, at 10.30 a.m. as Part-heard.
ORDER
Mr. Santosh Paul, learned counsel, started his arguments and concluded at 11.10 AM. Thereafter, Mr. Mukul Rohtagi, learned Attorney General, started his arguments and concluded at 12.40 PM. Thereafter, Mr. Ranjit Kumar, learned Solicitor General, argued for few minutes. Thereafter, Mr. Dushyant Dave, learned senior counsel appearing for the intervenor, started his arguments and was on his legs when the Court rose for the day.
List tomorrow i.e. on 19.03.2015 at 10.30 AM as part heard.
ORDER
Mr. Fali S. Nariman, learned senior counsel appearing for the petitioners in WP(C) No. 13/2015, started his arguments at 10.45 a.m. and continued till 11.45 a.m.
Then, Mr. Anil B. Divan, learned senior counsel appearing for the petitioners in WP(C) No. 108/2015 made his submissions till 2.45 p.m.
Thereafter, Mr. Mukul Rohtagi, learned Attorney General made his submissions in reply for a few minutes.
Mr. Prashant Bhushan, learned counsel appearing for the petitioner in WP(C) No. 83/2015 made his submissions.
Mr. Santosh Paul, learned counsel appearing for the petitioner in WP(C) No. 70/2015 made his submissions for next few minutes.
The matters remained Part-heard.
List the matters tomorrow, i.e., 18th March, 2015, at 10.30 a.m. as Part-heard.
ORDER
T.P. (C) No. 391/2015
Issue notice, returnable on 17.03.2015.
Mr. B.V. Balram Das, learned counsel, accepts notice on behalf of Union of India.
In view of the fact that the matter involving the same issue is pending before the High Court of Madras, we direct that there shall be stay of further proceedings in Writ Petition (MD) No. 69 of 2015 titled as âY. Krishnan v. Union of India.â pending before the High Court of Judicature at Madras, Bench at Madurai and the abovesaid matter shall not be taken up for hearing by the High Court till further orders.
List all the matters on 17.03.2015 at 10.30 A.M. (for whole day).
ORDER
List tomorrow i.e. on 11.03.2015 at 10.30 AM.
INDEX
S. No. | Particulars | Page No. |
1. | Listing Proforma | A – A1 |
2. | Synopsis & List of Dates | B – I |
3. | Writ Petition with Affidavit | 1 – 59 |
4. | ANNEXURE P-1 :
A true copy of the National Judicial Appointments Commission Act, 2014 passed by both Houses of Parliament in August 2014 and (assented to by the President on 31.12.2014) | 60-64 |
5. | ANNEXURE P-2 :
A True Copy of the Constitution (One Hundred Twenty First Amendment) Bill No. 97 of 2014 as introduced in the Lok Sabha | 65 – 70 |
6. | ANNEXURE P-3 :
A True Copy of the Constitution (One Hundred Twenty First Amendment) Bill No. 97C of 2014 as passed in the Lok Sabha and also subsequently in the Rajya Sabha | 71 – 74 |
7. | ANNEXURE P-4 :
A True Copy of the Constitution (99th Amendment Act of 2014) – after being as ratified by 16 State Legislatures-and assented by the President on 31.12.2014 | 75-77 |
8. | ANNEXURE P-5 :
A copy of the Constitution 98th Amendment Bill No. 41 of 2003 | 78 – 85 |
9. | ANNEXURE P-6 :
A True Copy of the Order dated 25.8.2014 passed by this Hon’ble Court in Writ Petition No. 775 of 2014 | 86 – 88 |
10. | Letter | 89 |
11. | office report 9/3/15 | 89A |
12. | Office report 16.3.15 | 89B |
13. | office report 16.3.15 | 89C |
14. | office report 23.3.15 | 89CD |
15. | 01 report 20.4.15 | 89EF |
LIST OF DATES
30.12.1981 A Bench of Seven Hon’ble Judges of this Hon’ble Court in its decision dated 30.12.1981 reported in 1981 Supp SCC 87; known as first Judges case held (by majority 4:3) that the recommendations of the Chief Justice of India for Judges to be appointed in the Supreme Court of India and in the High Courts were constitutionally not binding on the Government of India. The Court also clearly held in this case on the question of locus standi that lawyers practising in Courts could always petition in the larger interests of the independence of the Judiciary and held that lawyers âhad indisputably locus standi to maintain their writ petitions since they raised issues of grant constitutional importance affecting the independence of the judiciaryâ.
1990 For the first time a Constitution Amendment Bill proposing to amend Article 124(2) and Article 217 (1) providing for appointment of Judges of the Higher Judiciary on the recommendation of a National Judicial Commission was made in Bill No. 93 of 1990 -the Constitution (Sixty-Seventh Amendment) Bill No. 93 of 1990 which provided for the constitution of a National Judicial Commission for making recommendations for appointment of Judges in Supreme Court and High Courts. This Constitution Amendment Bill however, lapsed by the dissolution of the Lok Sabha in 1991.
06.10.1993 Decision of this Hon’ble Court in Supreme Court Advocates-on-Record v. Union of India – later known as the Second Judges Case – a Bench of nine Hon’ble Judges – reported in (1993 (4) SCC 441) held by majority (7:2) that a collegiate opinion of a collectivity of Judges was to be preferred to the opinion of the Chief Justice of India with the caveat that if the Government of the time did not accept the ârecommendationâ of the collegiate (then consisting of three of the senior-most Judges) It would be presumed that Government – in the matter of appointing or not appointing Judges of the Higher Judiciary – had not acted bona fide.
28.10.1998 Thereafter doubts were expressed about the interpretation of the law laid down by the Supreme Court of India in the Second Judges Case (1993) – specially relating to appointment and transfer of Judges – and a series of questions were framed and referred to the Hon’ble Supreme Court of India for being answered in Special Reference No. 1 of 1998 (under Article 143(1) of the Constitution) by a Bench of nine Hon’ble Judges (reported in 1998 (7) SCC 739). In the Third Judges Case (1998 (7) SCC 739) it was held that the Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and or to transfer a Chief Justice or Puisne Judge of a High Court in consultation with the four senior-most Puisne Judges of the Supreme Court (and not only with the two senior most Judges as previously held). But in so far as an appointment to the High Court was concerned it was held that the recommendation must be made in consultation with the two senior-most Puisne Judges of the Supreme Court.
2.2.2000 The NDA Government passed a resolution on 22nd February, 2000 constituting The National Commission to Review the Working of the Constitution, to make suitable recommendations. It had as its members Hon’ble Mr. Justice M.N. Venkatachalia, former Chief Justice of India as the Chairperson of the Commission with the following distinguished persons as members: Justice Shri. B.P. Jeevan Reddy, Chairman, Law Commission of India; Justice Shri. R.S. Sarkaria, Former Judge, Supreme Court of India; Justice Shri. Kottapalli Punnayya, former Judge, Andhra Pradesh High Court; Shri. P.A. Sangma, Former Speaker, Lok Sabha; and Member of Parliament; Shri. Soli J. Sorabjee, Attorney General for India; Shri. K. Parasaran, Senior Advocate and former Attorney General for India; Dr. Subhash C. Kashyap, Former Secretary General, Lok Sabha; Shri. C.R. Irani, Chief Editor and Managing Director, The Statesman; Dr. Abid Hussain, Former Ambassador of India in the USA; Smt. Sumitra G. Kulkarni, Former Member of Parliament (Rajya Sabha)â. The report came to the following conclusion:
The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:
(1) The Chief Justice of India: Chairman
(2) Two senior most judges of the Supreme Court:. Member
(3) The Union Minister for Law and Justice: Member
(4) One eminent person nominated by the President after consulting the Chief Justice of India: Member
The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary.â
6.5.2003 The NDA Government on 6th May, 2003 – the Constitution (Ninety Eighth Amendment) Bill No. 41 of 2003 was prepared and introduced in Parliament on 9th May, 2003 – The Bill however lapsed only because of the dissolution of the 13th Lok Sabha on May 2004.
2013 The only subsequent occasion for introducing a constitutional amendment with regard to provision for appointment of Judges in the Higher Judiciary was when the Congress led-government (UPA-II) got passed in the Rajya Sabha the Constitution (One Hundred And Twentieth Amendment) Bill LXC of 2013 in which there was provision made for Parliament by law to provide for the composition of a Commission to be known as the Judicial Appointments Commission. The said Bill however lapsed on account of dissolution of the Lok Sabha.
11.8.2014 Bill No. 97 of 2014 (later altered to Bill No: 97C of 2014) – titled The Constitution. (One Hundred and Twenty-First Amendment) Bill, 2014 was introduced in the Lok Sabha by the Ministry of Law and Justice on 11.8.2014. Bill No. 97/97c of 2014 sought (almost exclusively) to make changes in Articles 124(2) and Articles 217(1) of the Constitution relating to provisions for appointment of Judges of the Supreme Court and of the High Courts, and also sought to make some other changes in Chapter IV of Part V of the Constitution (Union Judiciary) as well as Chapter V of Part VI of the Constitution (High Courts in the States). Prior to the said Bill No. 97C of 2014, another Bill i.e. the National Judicial Appointments Commission Bill No. 96 of 2014 was introduced in the Lok Sabha.
13.8.2014 The aforementioned Bill No: 97C of 2014) – titled The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 was passed by the Lok Sabha with requisite majority alongwith the National Judicial Appointments Commission Bill No. 96 of 2014. Pertinently, on the very same day in the evening, the said Bill No. 97C of 2014 and the National Judicial Appointments Commission Bill No. 96 of 2014 was introduced in the Rajya Sabha.
14.8.2014 The aforementioned Bill No: 97C of 2014) – titled The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 and the National Judicial Appointments Commission Bill No. 96 of 2014 was passed by the Rajya Sabha with requisite majority.
21.8.2014 The petitioner association filed Writ Petition (Civil) No. 775 of 2014 before this Hon’ble Court challenging the 121st Constitutional Amendment Bill No. 97C of 2014. as unconstitutional and violative of basic structure of the Constitution vis-a-vis the independence of Judiciary.
25.8.2014 By order dated 25/8/2014, the Hon’ble Court disposed of the aforementioned Writ Petition No. 775 of 2014 observing that the same is premature with further liberty to the petitioner herein to approach the Hon’ble Supreme Court at appropriate Stage.
31.12.2014 The 121st Constitution Amendment Bill No. 97C of 2014 has been ratified by 16 State Legislatures and therefore, received the assent of the President of India on 31.12.2014, subsequent to which, it came to be numbered as Constitution 99th Amendment Act 2014. Since upon receiving the Presidential Assent and by operation of Article 368, the Constitution stands amended as on 31.12.2014, the petitioner herein has accrued the right to challenge the Constitutionality of the aforementioned Constitution 99th Amendment Act, 2014. On the very same day, the National Judicial Appointments Commission Bill No. 96C of 2014 received the assent of the President and therefore, has become a law.
5.1.2015 Hence the present Writ Petition
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
TO
THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. The First Petitioner is an Association of Advocates-on-Record; and the Second Petitioners is its Secretary. The members of the 1st Petitioners are Advocates-on-Record who have become Advocates on Record after having appeared in and successfully passed the qualifying examination prescribed and who act as Advocates on Record and are also entitled to file Petitions before this Hon’ble Court to ventilate grievances of its members. The Petitioners have in the past filed Petitions before this Hon’ble Court inter-alia, for upholding the independence of the Judiciary.
The aims and objects of the Supreme Court Advocate-on-record-Association – a registered society under the Societies Registration Act, 1860 bearing Registration No. 17962 of 1987 dated 31.7.1987 is inter-alia is to take action for promotion and improvement in law and its administration of justice; and for the purpose aforesaid, to submit necessary recommendations before the Legislature, the Government of India, State Governments, the Judges of High Courts end of the Supreme Court and the Law Commission and other authorities.
2. In this Petition the Petitioners above named – inter-alia, challenge as unconstitutional and invalid the purported amendment of the Constitution which had been initiated by the introduction in the Lok Sabha of the Constitution (One Hundred Twenty First Amendment) Bill No: 97 of 2014, and which had been passed in each of the Houses of Parliament and now ratified by sixteen State Legislatures and assented to by the President of India on 31.12.2014 as the Constitution 99th Amendment Act of 2014. (The Bill-was passed with the majority stipulated in Article 368(2) – by each Houses of Parliament and having sought to make changes in: Chapter IV of Part V of the Constitution (âthe Union Judiciaryâ) as well as in Chapter V of Part VI of the Constitution (âthe High Courts in Statesâ) had been submitted to the States Legislatures for ratification.
In addition to the above, the petitioners also challenges the constitutionality and validity of the National Judicial Commission Act, 2014, which though passed by. Parliament in August, 2014 has been assented to by the President of India on 31.12.2014.
The background to, the reasons for, and the grounds of challenge to, the Constitution 99th (Amendment) Act No. of 2014 passed by both Houses of Parliament (with the requisite majority stipulated for in Article 368(2) of the Constitution has now been ratified by 16 State Legislatures has now been assented to by the President of India.
3. Article 368 of the Constitution, as it validly stood in August 2014, and as it stands today, reads as follows:
â368. [Power of Parliament to amend the Constitution and procedure therefore]
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in –
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter-IV of Part-V, Chapter-V of Part-VI, or Chapter-I of Part-XI, or
(c) Any of the Lists in the Seventh Schedule, or
(d) The representation of States in Parliament,
(e) The provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.â
Clauses (4) and (5) of Article 368 have been (deliberately) omitted since they have been declared by the Supreme Court of India as ultra vires the Constitution because these clauses had sought to exclude judicial review: a basic feature of the Constitution of India 1950 (Minerva Mills v. Union of India – 1980 2 SCC 591).
The purport of Article 368 – as it stands today – as interpreted by the Supreme Court provides:
(i) that an amendment, by way of addition, variation or repeal of any provision of the Constitution, can only be in exercise of Parliament’s constituent power, not in exercise of its legislative power. After the decision of the Supreme Court of India in Golaknath’s Case 1967 (2) SCR 109 delivered by a Bench of 11 Judges (6:5) was overruled (on this point) in Keshvananda Bharti’s Case 1973 Supp. (1) SCR at page 1001 – 11:2, and after the Constitution 24th Amendment Act – 1971 adding clause (3) to Article 368 and adding clause (4) to Article 13, -(which was held to be valid by this Hon’ble Court), an amendment of the Constitution has been no longer regarded as, nor equated with âlawâ or law-made;
(ii) such an amendment of the Constitution (in exercise of the Constituent power of Parliament) can be initiated only by the Introduction of a Bill for the purpose in either House of Parliament;
(iii) where such an amendment (initiated by the introduction of a Bill) seeks to make a change in Chapter IV of Part V and/or of Chapter V of Part VI of the Constitution the amendment when passed by each of the two Houses of Parliament (with the requisite majority stipulated in Article 368(2)); it requires to be ratified by Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for his assent;
(iv) it is only after such ratification by State Legislatures – as mentioned in the latter portion of the proviso to Article 368(2) – that the Bill (as passed by both Houses of Parliament) can be presented to the President, who – as is stated in the said provision âshall give his assent to the Billâ;
(v) it is thereupon (and only then) that the Constitution âshall stand amended in accordance with the terms of the Bill.â
4. A recital of events: relevant for purposes of the present Writ Petition.
(A) – Bill No. 97/97C of 2014 – The Constitution One Hundred and Twenty-First Amendment Bill 2014 – – after its introduction in the Lok Sabha on 11th August 2014; – was passed by that House with the requisite majority prescribed in Article 368(2) on 13th August, 2014, it was thereafter transmitted to the Rajya Sabha. The Bill as passed by the Lok Sabha was then introduced in the Rajya Sabha on the evening of 13th August, 2014 and after some discussion and debate on 13th August, 2014 and again on 14th August, 2014, the Constitution Amendment Bill was passed by the Rajya Sabha with the requisite majority as prescribed in Article 368(2) on 14th August 2014 (without any amendment) – as the Constitution 121st Amendment Bill No. 97C of 2014. On 14th August, 2014 the Secretary-General of the Lok Sabha reported that the following message had been received from the Secretary-General of the Rajya Sabha viz.
âIn accordance with the provisions of rule 127 of Procedure and Conduct of Business in the Rajya Sabha, I am directed to inform the Lok Sabha that the Rajya Sabha, at its sitting held on the 14th August, 2014, passed, in accordance with the provisions of article 368 of the Constitution of India, without any amendment, the Constitution (One Hundred and Twenty-first Amendment), Bill, 2014 which was passed by the Lok Sabha at its sitting held on the 13th August, 2014â.
In accordance with current practice in such matters, the Constitution (One Hundred Twenty First Amendment) Bill No. 97 of 2014 as passed by both Houses of Parliament was forwarded to all State Legislatures in the country for them to act under the second part of the proviso to Article 368(2) for the passing of Resolutions ratifying the Constitution Amendment Bill as passed by both Houses of Parliament. Accordingly, the Rajya Sabha Secretariat circulated a copy of the Constitution (One Hundred Twenty First Amendment) Bill, 2014 to all the States with a request that the Bill be presented before the respective State Legislatures for ratification. It was reported on December 31, 2014 that âofficial sources had said that 16 of the 29 States had ratified the Bill and that the Bill had received the Presidential nodâ. (i.e. the assent of the President of India).
(B) – As a matter of historical record it must be added that almost simultaneously with the introduction of the Constitution (One Hundred Twenty First Amendment) Bill No. 97C of 2014, in the Lok Sabha there was also introduced (in the Lok Sabha) on 11th August, 2014 the National Judicial Appointments Commission Bill No. 96 of 2014: (as a matter of fact the Legislative Bill No. 96 of 2014 was introduced even prior to the introduction of the Constitution 121st Amendment Bill No. 97C of 2014) – a fatal infirmity which could not be cured by it being passed by both Houses of Parliament August 2014 nor by having received Presidential Assent on 31.12.2014)
The said Legislative Bill was got passed in both Houses of Parliament by a voice vote taken but there was at the time no Presidential assent to the Legislative Bill-the purported introduction, consideration and passing of the Legislative Bill (the National Judicial Appointments Commission Bill No. 96 of 2014) was not only an exercise in futility but was a total nullity since Article 124(2) as originally enacted (in the Constitution) remained intact: The introduction of and the passing by both Houses of Parliament of the Legislative Bill known as the National Judicial Appointments Commission Bill 2014 was (in any case) plainly ultra vires since it was not warranted by the provisions of Article 124(2) as originally enacted.
A true copy of the National Judicial Appointments Commission Act, 2014 passed by both Houses of Parliament In August 2014 and (assented to by the President on 31.12.2014) is annexed herewith and marked as ANNEXURE P-1, Page Nos. 60-64.
A True Copy of the Constitution (One Hundred Twenty First Amendment) Bill No. 97 of 2014 as introduced in the Lok Sabha is annexed herewith and marked as ANNEXURE P-2, Page Nos. 65-70.
A True Copy of the Constitution (One Hundred Twenty First Amendment) Bill No. 97C of 2014 as passed in the Lok Sabha and also subsequently in the Rajya Sabha is annexed herewith and marked as ANNEXURE P-3, Page Nos. 71-74.
A True Copy of the Constitution (99th Amendment Act of 2014) – after being as ratified by 16 State Legislatures – and assented by the President on 31.12.2014 is annexed and marked as ANNEXURE P-4, PAGE NOS. 75-77.
– During the debates in the two Houses of Parliament it was stated, on behalf of the Government, that the National Judicial Appointments Commission Bill 96 of 2014 (a Legislative Bill) was to be read in tandem with the provisions of the Constitution (One Hundred Twenty First Amendment) Bill No. 97 of 2014 and as a âguidelineâ so that Members of the State Legislative Assemblies were made âaware of what the Government in going to doâ.
The Constitution 99th Amendment Act 2014 makes changes in Articles 124(2) (as well as Article 217(1)) of the Constitution relating to provisions for appointment of Judges of the Supreme Court and of the High Courts, and also makes some other changes in Chapter IV of Part V of the Constitution (Union Judiciary) as well as Chapter V of Part VI of the Constitution (High Courts in the States) – as stated below:
(a) Article 124(2) as it stood, as enacted in the Constitution of India 1950, reads, as follows:
â(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided further 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 in the manner provided in clause (4).â
(b) Clause 2 of the Constitution 99th Amendment Act 2014 amending Clause (2) of Article 124 as it originally stood purports to read as follows:
â124. Establishment and constitution of Supreme Court
(1)..
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to Article 124A, and shall hold office until he attains the age of sixty-five 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 in the manner provided in clause (4).
(c) Clause 3 of the Constitution 99th Amending Act provides for the following additional articles to be inserted in the Constitution viz.
(i) Article 124A – provision is made for appointment of a âNational Judicial Appointments Commissionâ; consisting of six members: three of whom are to be the three seniormost Judges of the Supreme. Court including the Chief Justice of India (as Chairman) but with no additional vote for the CJI as Chairman); the remaining three members are the Union Minister of Law and Justice and two âeminent personsâ to be nominated – not by the Chief Justice of India-but by a panel (consisting of the Prime Minister, the Chief Justice of India and Leader of Opposition or leader of the single largest Opposition Party in the Lok Sabha: with no additional vote for the CJI); who can be outvoted in the nomination of eminent persons.
(ii) Article 124B – prescribes the âFunctions of the National Judicial Appointments Commissionâ; viz. that it shall be the duty of the National Judicial Appointments Commission to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; and to recommend transfers of Chief Justices and other Judges of High Courts from one High Court to any other High Court and to ensure that the person recommended is of ability and integrity; but it has not been prescribed as a duty of the National Judicial Appointments Commission to ensure that in the matter of appointing Judges in the Higher Judiciary the independence of the judiciary shall always be maintained and secured.
(iii) Article 124C – provides that âParliament may by law regulate the procedure for the appointment of the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission (the National Judicial Appointment Commission) to lay down by regulations the procedure for discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by itâ; but in the matter of laying down by regulations the manner of selection of persons for appointment there is no requirement for weightage to be given to the collective views of the three seniormost judges of the Supreme Court of India, nor is any weightage to be given to the views of the Chief Justice of India;
(d) Clause 4 of the Act provided for an amendment to Article 127 of the Constitution (Appointment of ad hoc Judges) in that in clause (1) of Article 127 for the words âthe Chief Justice of India may, with the previous consent of the Presidentâ the following words are substituted viz. âthe National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the Presidentâ.
(e) Clause 5 of the Act provides that in Article 128 of the Constitution (Attendance of retired judges of the Supreme Court may be required by the Chief Justice of India with the previous consent of the President) for the words âthe Chief Justice of Indiaâ the following words are be substituted: âthe National Judicial Appointments Commissionâ.
(f) Clause 6 of the Act provides for an amendment of Article 217 of the Constitution (Appointment and conditions of the office of a Judge of a High Court) – viz. for the portion âafter 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 Courtâ the following words figures and letter are to be substituted viz. âon the recommendation of the National Judicial Appointments Commission referred to in Article 124Aâ; here again there is no stipulation about weightage being given or of special consideration being given as ought to be given to the views expressed by the Chief Justice of the High Court in the State.
(g) Clause 7 of the Act provides that in Article 222 of the Constitution (Transfer of a Judge from one High Court to another) – for the words âafter consultation with the Chief Justice of Indiaâ the following words, figures and letter are to be substituted viz. âon the recommendation of the National Judicial Appointments Commission referred to in Article 124Aâ; here again, the over-all control of the Chief Justice of India (who is under the Constitution more than being the Chief Justice of the Supreme Court of India) over the Judiciary under the Constitution has been totally ignored and disregarded.
(h) Clause 8 of the Act provides for an amendment of Article 224 of the Constitution (Appointment of additional and acting Judges) viz. in clause (1) and Clause 2 of Article 224 for the words âthe President may appointâ, the following words are to be substituted viz. âthe President may in consultation with the National Judicial Appointments Commission appointâ; here again, the need for additional or acting Judges which is a matter almost solely for determination by the Chief Justice of India as Head of the Indian Judiciary are not required to be given any weightage or special consideration.
(i) Clause 9 of the Act provides that in Article 224A of the Constitution (Appointment of retired Judges at sittings of the High Courts) for the words âthe Chief Justice of a High Court for any State may at any time, with the previous consent of the Presidentâ the following words are to be substituted viz. âthe National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State may with the previous consent of the Presidentâ.
5. Brief background to the constitutional provisions relating to appointment of Judges of the Supreme Court and of High Courts and attempts made to amend the same.
(a) Article 124(2) along with Article 217(1) of the Constitution of India, 1950 – as enacted and as in force immediately prior to the Presidential assent to the Constitution 99th Amendment Act 2014 – (w.e.f. 31.12.2014) – made provisions for the appointment of Judges of the Supreme Court of India including the Chief Justice of India and for appointment of Judges of the High Courts including the Chief Justices of the High Courts – as follows:
Article 124(2) âEvery Judge of the Supreme Court shall be appointed by the President by warrant under his hand and sea! after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided further 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 in the manner provided in clause (4).â
(c) âArticle 217. Appointment and conditions of the office of a Judge of a High Court. – (1) Every Judge of a High Court shall be. appointed by the President by warrant under his hand and seal 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 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.â
(b) Although the Constitution (Article 124(2)) mentioned the requirement of âconsultationâ with Sitting Judges including the Chief Justice of India before a Judge in the Higher Judiciary was appointed, for a period of almost thirty years after the Constitution of India 1950 came into force no Judge of any High Court in the States, and no Judge of the Supreme Court of India was appointed whose name was not recommended for such appointment by the Chief Justice of India;
(c) In March 1981 however a certain Circular issued by the (then) Minister of Law, Justice and Company Affairs was issued and was challenged in several Writ Petitions as impinging upon the independence of the Judiciary, and in a decision rendered on those petitions (including Writ Petitions in the High Courts transferred to the Supreme Court of India) a Bench of Seven Hon’ble Jgdges in the lead case of S.P. Gupta v. Union of India (1981 (Supp) SCC 87) – much later to be known as the First Judges Case (1981) – a Bench of Seven judges of the Supreme Court held (by majority 4:3) – then for the first time – that the recommendations of the Chief Justice of India for Judges to be appointed in the Supreme Court of India and in the High Courts were constitutionally not binding on the Government of India. In this case however, the Court also clearly held on the question of locus standi that lawyers practising in Courts could always petition in the larger interests of the independence of the Judiciary and held that lawyers âhad indisputably locus standi to maintain their writ petitions since they raised issues of grant constitutional importance affecting the independence of the judiciaryâ.)
(d) For the first time a Constitution Amendment Bill proposing to amend Article 124(2) and Article 217(1) providing for appointment of Judges of the Higher Judiciary on the recommendation of a National Judicial Commission was made in Bill No. 93 of 1990 – the Constitution (Sixty-Seventh Amendment) Bill No. 93 of 1990 – which provided for the constitution of a National Judicial Commission for making recommendations for appointment of Judges in the Supreme Court and in the High Courts; the Commission to consist of the Chief Justice of India as Chairperson and two other Judges of the Supreme Court next to the Chief Justice in seniority for making recommendations for appointment of Judges in the Supreme Court; and for making recommendations as to the appointment of a Judge of any High Court the Commission was to consist of the Chief justice of India who was to be the chairperson of the Commission, the Chief Minister of the concerned State, one other Judge of the Supreme Court next to the Chief Justice of India in seniority, the Chief Justice of the High Court and one other Judge of that High Court next to the Chief Justice of that High Court in seniority. This Bill had been introduced to obviate the criticism of arbitrariness on the part of the Executive in appointments and transfers of Judges in the Higher Judiciary and also to make such appointments without any delay (following upon the Law Commission’s recommendation in its 121st Report). This Constitution Amendment Bill however, lapsed with the dissolution of the ninth Lok Sabha in 1991.
(e) After some events which resulted in the Government policy of appointing only âcommittedâ Judges to the Higher Judiciary-committed not to the Constitution of India but committed to the policies of the Government of the time – it was decided to take a fresh look at Article 124. And in Supreme Court Advocates-on-Record v. Union of India – reported in 1993 (4) SCC 441 – later known as the Second Judges Case – a Bench of Nine Hon’ble Judges-held (by majority 7:2) that a collegiate opinion of a collectivity of Judges was to be preferred to the opinion of the Chief Justice of India with the caveat that if the Government of the time did not accept the ârecommendationâ of the collegiate opinion (then consisting of three of the senior-most Judges) it would be presumed that the Government – in the matter of appointing or not appointing Judges of the Higher Judiciary-had not acted bona fide.
(f) After the judgment rendered in the Second Judges Case (1993) it was felt – over time – that recommendations made by a succession of Collegiums were not made in the spirit in which the new doctrine had been propounded by the Bench of nine Judges in the Second Judges Case – since the collegiate of the then three highest Constitutional functionaries (senior-most Judges on the Court), at times, could not see eye-to-eye in the matter of appointment of Judges in the Higher Judiciary,
(g) Thereafter doubts were expressed about the interpretation of the law laid down by the Supreme Court of India in the Second Judges Case (1993) – specially relating to appointment and transfer of Judges – and a series of questions were framed and referred to the Hon’ble Supreme Court of India for being answered in Special Reference No. 1 of 1998 (under Article 143(1) of the Constitution) by a Bench of nine Hon’ble Judges (a decision reported in 1998 (7) SCC 739)
In 1998 (7) SCC 739 – it was recorded at the outset in the judgment of the Court – in what was later known as the Third Judges Case (on 28th October, 1998);
(i) that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges Case; and
(ii) that the Union of India would accept and treat as binding the answers of the Supreme Court to the questions set out in the reference.
Thus, the Government of the day (the then NDA Government with the BJP in majority) accepted in principle the collegium system as advocated and laid down in the Second Judges Case.
In paragraph 44 of the judgment in the Third Judges Case (Special Reference No. 1 of 1998) the questions raised were duly answered and were to be regarded and were accepted as binding on the Government of India.
In the Third Judges Case (Reference Case 1998 (7) SCC 739) it was held that the Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and or to transfer a Chief Justice or Puisne Judge of a High Court in consultation with the four senior-most Puisne Judges of the Supreme Court (and not only with the two senior most Judges as previously held). But in so far as an appointment to the High Court was concerned it was held that the recommendation must be made in consultation with the Chief Justice of India and two senior-most Puisne Judges of the Supreme Court.
(h) Later, since there was dissatisfaction expressed by various individuals and bodies with respect to the manner in which, and with the lack of transparency with which, some of the collegiums had acted, (in some cases), the NDA Government passed a resolution on 22nd February, 2000 constituting The National Commission to Review the Working of the Constitution, to make suitable recommendations. It had as its members Hon’ble Mr. Justice M. N. Venkatachalia, former Chief Justice of India as the Chairperson of the Commission with the following eminent persons as members: Justice Shri. B.P. Jeevan Reddy, Chairman, Law Commission of India; Justice Shri. R.S. Sarkaria, Former Judge, Supreme Court of India; Justice Shri. Kottapalli Punnayya, former Judge, Andhra Pradesh High Court; Shri. P.A. Sangma, Former Speaker, Lok Sabha; and Member of Parliament; Shri. Soli J. Sorabjee, Attorney General for India; Shri. K. Parasaran, Senior Advocate and former Attorney General for India; Dr. Subhash C. Kashyap, Former Secretary General, Lok Sabha; Shri. C.R. Irani, Chief Editor and Managing Director, The Statesman; Dr. Abid Hussain, Former Ambassador of India in the USA; Smt. Sumitra G. Kulkarni, Former Member of Parliament (Rajya Sabha)â
The terms of the reference of the Commission was: (1.3.1)
âThe Commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.â (Emphasis added).
(i) In the Report of the National Commission to review of the Working of the Constitution (2002) the Commission (âthe Venkatachallah Commissionâ) came to the following conclusion in the matter of appointment of Judges of the Supreme/Higher Judiciary:
â7.3.7 The matter relating to manner of appointment of judges had been debated over a decade. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced on 18th May, 1990 (9th Lok Sabha) providing for the institutional frame work of National Judicial Commission for recommending the appointment of judges to the Supreme Court and the various High Courts. Further, it appears that latterly there is a movement throughout the world to move this function away from the exclusive fiat of the executive and involving some institutional frame workwhereunder consultation with the judiciary at some level is provided for before making such appointments. The system of consultation in some form is already available in Japan, Israel and the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for a collegium of the Chief Justice of India and two other judges of the Supreme Court for making appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution.
The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:
(1) The Chief Justice of India: Chairman
(2) Two senior most judges of the Supreme Court: Member
(3) The Union Minister for Law and Justice: Member
(4) One eminent person nominated by the President after consulting the Chief Justice of India: Member
The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary.â
(The above portion in bold is as highlighted in the Report of the Venkatachaliah Commission itself: to emphasize the crucial importance of the last word (in the event of a difference of opinion) being with the three seniormost sitting judges of the Supreme Court of India.
(j) It is to be noted that the Venkatachaliah Commission keeping in view the concept of the Independence of the Judiciary and the need to always uphold this concept, had recommended that the Appointments Commission recommended by it should comprise of an uneven number: five – with three Members of the Commission (out of the 5) being the seniormost sitting judges of the Supreme Court of India, with the sitting Chief Justice of India as its Chairman.
(k) The Council of Ministers of the then NDA government at its meeting held on 6th May, 2003 thereafter examined the recommendations of the National Commission to Review the Working of the Constitution (âthe Venkatachaliah Commissionâ) and substantially approved the same, endorsing the Department of Justice’s proposal for the Constitution of a National Judicial Commission;
(l) In accordance with the recommendations of the Venkatachaliah Commission (2002) – as slightly altered by the Council of Ministers of the NDA Government on 6th May, 2003 – the Constitution (Ninety Eighth Amendment) Bill No. 41 of 2003 was prepared and introduced in Parliament on 9th May, 2003 – The BIN however could not be passed only because of the dissolution of the 13th Lok Sabha on May 2004. A copy of the Constitution 98th Amendment Bill No. 41 of 2003 is annexed as ANNEXURE-P-5 Page Nos. 78-85.
The Constitution 98th Amendment Bill 41 of 2003 provided:
2. In article 124 of the Constitution, in clause (2), for the portion beginning with the words âafter consultationâ and ending with the words âProvided further that -â, the following shall be substituted namely :-
âon the recommendation of the National Judicial Commission and shall hold office until he attains the age of sixty-five years;
Provided that;â
3. In Part V of the Constitution, after Chapter IV, the following Chapter shall be inserted, namely –
âCHAPTER IVA – NATIONAL JUDICIAL COMMISSION
147A. (1) The President shall by order constitute a Commission, referred to in this Constitution as the National Judicial Commission.
(2) without prejudice to the provisions of clause (3), the National Judicial Commission shall consist of the following:-
(a) the Chief Justice of India, who shall be the chairperson of the Commission:
(b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority;
(c) the Union Minister in-charge of Law and Justice; and
(d) one eminent citizen to be nominated by the President in consultation with the Prime Minister;
Provided that the eminent citizen nominated under sub-clause (d) shall hold office for a period of three years.
(3) In the case of appointment or transfer of a Judge of a High Court, the Chief Justice of that High Court and the Chief Minister of that State or, when a proclamation under article 356 is in operation in that State, the Governor of that State, shall be associated with the Commission.
(4) It shall be duty of the Commission-
(a) to make recommendation of persons for appointment of Judges of the Supreme Court, Chief Justices of High Courts and the Judges of the High Courts.
(b) to make recommendation for the transfer of the Chief Justices of High Courts and the Judges of High Courts from one High Court to any other High Court;
(c) to draw up a code of ethics for Judges of the Supreme Court, Chief Justices of High Courts and the Judges of the High Courts;
(d) to inquire into, suomotu or on a complaint or reference, cases of misconduct or such deviant behaviour of a Judge other than those calling for his removal and advise the Chief Justice of India or the Chief Justice of a High Court appropriately after such Inquiry.
(5) The recommendation made by the Commission under clause (4) shall be binding.
(6) No person, who is not recommended for appointment as a Judge by the Commission, shall be so appointed by the President.
(7) The Commission shall have the power to regulate its own procedure including the procedure to be followed under sub-clause (d) of clause (4)â
6. It is submitted that:
(i) the Constitution 121st Amendment Bill 2014 passed by both Houses of Parliament as the Constitution 99th Amendment Act, 2014 and after ratification by legislatures 16 States out of 29 – assented to by the President on 31st December 2014 severely affects and damages the basic structure of the Constitution viz. the independence of the judiciary in the context of appointment of judges of the higher judiciary as aforesaid and for the grounds following.
(ii) It is further submitted that the National Judicial Appointments Commission Bill 96 of 2014 passed by both Houses of Parliament in August 2014 when Articles 124(2) and 217(1) stood as enacted in the Constitution of India 1950 assented to by the President on 31st December 2014 as the National Judicial Commission Act, 2014 was also totally ultra vires and void for the grounds mentioned herein below.
GROUNDS OF CHALLENGE IN RESPECT OF THE CONSTITUTION 99th AMENDMENT ACT, 2014 GROUNDS (A) to (K) below:
(A) It is submitted that as held by the majority in the Full Bench decision of 13 Hon’ble Judges in Keshvananda Bharati v. State of Kerala: 1973 (4) SCC 225 at 1007 – and reiterated and reaffirmed in the case of I. R. Coelho v. State of Tamil Nadu (9 Judges) 2007 (2) SCC 1 at page 111 that Article 368 does not enable Parliament to alter the basic structure of the Constitution.
(B) It has also been held in Kihoto Hollohan v. Zachillhu 1992 (Supp.2) SCC 651 at 692-693 (paras 63 to 65) that basic structure of the Constitution cannot be altered nor can basic features of the Constitution be destroyed – which imposes a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of this limitation goes beyond the amending power. It has further been held by this Hon’ble Court in a series of judgments some of which are mentioned below that the independence of the judiciary is part of the basic structure of the Constitution and hence unamendable by Parliament even in exercise of its constituent power.
(C) In the context of the appointment of Judges of the Higher Judiciary the expression âindependence of the Judiciaryâ as a constitutional concept and one that has been consistently regarded as a basic feature of the Constitution means (and has been consistently held to mean):
(i) âinsulating the Judiciary from executive or legislative controlâ (e.g. Union Of India v. Sankal Chand Himatlal Sheth: 1977 (4) SCC 193 at page 236-237 para 50) (5 Judges);
(ii) âinextricably linked and connected with the constitutional process of appointment of Judges of the Higher judiciary. Independence of the Judiciary is a basic feature of our constitutionâŚ.â (e.g. Supreme Court Advocates-on-Record Association v. Union of India: 1993 (4) SCC 441 at page 649 para 335); (Bench of nine Judges);
(iii) âin the matter of appointment of Judges to the High Courts and the Supreme Court âprimacy of the Higher Judiciary must be secured and protectedâ (first affirmed in Supreme Court Advocates-on-Record Association v. Union of India: 1993 (4) SCC 441 at page 522 para 56); (Bench of Nine Judges); re-affirmed in Special Reference No. 1 of 1998 (Nine Judges) reported in 1998 (7) SCC 739) (unanimous);
(iv) the conditions for appointment of Judges to the Supreme Court and the High Courts may not be amendable even by a constitutional amendment as the same is likely to tamper with the independence of the judiciary and thereby adversely affect the basic features of the Constitution (e.g. State of Bihar v. Balmukund Shah: 2000 (4) SCC 640 para 97 at page 747); (Bench of five Judges);
(v) the âexecutive element in the appointment of Judges must be reduced to a minimumâ (e.g. Union of India v. Madras Bar Association: 2010 (11) SCC 1 at page 37 paras 50-52); (Bench of five Judges); Justice Raveendran speaking for the Court said:
â50. The Framers of the Constitution stated in a memorandum (see The Framing of India’s Constitution, B. Shiva, Rao, Vol. I-B, p. 196):
âWe have assumed that it is recognized on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the Judges but to the citizens at large who may have to seek redress in the last resort in the courts of law against any illegal acts or the high-handed exercise of power by the executiveâŚ. in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient the judiciary has been steadily kept in view.â
51. In L. Chandra Kumar1, the seven-Judge Bench of this Court held: (SCC p. 262d-e)
âThe Constitution of India while conferring power of judicial review of legislative action upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary.â
52. Independence of the judiciary has always been recognized as a part of the basic structure of the Constitution (see Supreme Court Advocates-on-Record Assn. v. Union of India2, State of Bihar v. Bal Mukund Sah3, Kumar Padma Prasad v. Union of India4, and All India Judges Assn. (3) v. Union of India5.â
In âthe choice of judges the opinion of the Chief Justice of India or a group of Judges of the Higher Judiciary should have weightâ (e.g. 2010 (11) SCC 1 at page 37 para 51 (Bench of five Judges);
(D) The Independence of the Judiciary is an integral part of the Basic Structure of the Constitution of India and Independence of the Judiciary, and inter alia, includes the necessity to eliminate political influence even at the stage of appointment of a Judge, the executive element in the appointment process being minimal. The Constitution (99th Amendment) Act of 2014 as passed by the two houses of Parliament, by providing for a National Judicial Appointments Commission consisting of the Chief Justice of India; and two other senior Judges of the Supreme Court next to the Chief Justice of India; the Union Minister in charge of Law and Justice; and two eminent persons to be nominated by a committee (consisting of the Prime Minister, Leader of Opposition or leader of single largest party in Lok Sabha and the Chief Justice of India), takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India next to the Chief Justice of India i.e. even if all three senior most judges of the Supreme Court of India collectively recommend an appointee, the appointment is enabled to be a suspended by majority of three non-Judge members.
(E) Clause 3 of the Constitution 99th Amendment Act of 2014 as passed by the two Houses of Parliament and ratified by 16 State Legislatures and assented to by the President on 31.12.2014 introduces Article 124C in the Constitution of India as an integral part of the mode and manner of appointment of Judges – this confers unbridled power to Parliament to regulate by ordinary law, (purported to be already regulated by the National Judicial Appointments Commission Bill passed by both Houses of Parliament in August 2014 and assented by the President on 31.12.2014) inter alia, âthe manner of selection of persons for appointmentâ to the Higher Judiciary – without any safeguards whatsoever and in particular without requiring Parliament to ensure at all times the Independence of the Judiciary – a corner stone of the Constitution, It has been held repeatedly by this Hon’ble Court that the doctrine of Basic Structure cannot be used to challenge ordinary legislation (1975 Supp SCC 1; 1996 (3) SCR 721; 2006 (7) SCC 1; 2010 (11) SCC 1;). Therefore as per the law laid down by this Court, it may not be possible to challenge any law made under the proposed Article 124C on the ground that it results in the erosion of the Independence of the Judiciary thereby damaging the Basic Structure of the Constitution. Besides, the law purported to be made viz. the National Judicial Appointments Commission Act 2014 was not made by Parliament under the provision of Article 124(2) and 217(1) as purported to be enacted by the Constitution 99th Amendment Act 2014 – since the National Judicial Appointments Commission Bill 2014 had been passed both Houses of Parliament in August 2014 when Article 124(2) and 217(1) as enacted were in force. In addition, Article 124C leaves open enormous scope for the Parliament, by ordinary legislation, to give primacy to the Executive or Veto powers to the Executive or other unchecked powers to the Executive for the appointment of Judges to the higher Judiciary. Thus for instance, the second proviso to Sub-section2 of Section 5 and Sub-Section 6 of Section 6 of the National Judicial Appointments Commission Act, 2014, which has been purported to be passed by both Houses of Parliament as an ordinary Bill (and not as a Constitution Amendment Bill), provides that âthe Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendationâ. Not only does this very provision open possibilities for erosion of Independence of the Judiciary but such an ordinary taw can be also amended to substitute for the words âtwo membersâ the words âone memberâ – thus completely negating any effective role of the three senior most members of the Higher Judiciary in appointment of Judges to the Supreme Court and the High Courts, and thus wholly transferring the power of appointment of Judge, of the Higher Judiciary to the Executive.
(F) The existing âguidelineâ (so stated by the Minister in Parliament) in the form of the National Judicial Appointments Commission Bill 2014 got passed by both Houses of Parliament in August 2014 which was unconstitutional and void and could not be cured by any assent of the President (on 31.12.2014) – indicates quite plainly that if any two Members of the Commission (a Commission consisting of six Members – three sitting Judges and three non-Judge Members) do not agree to the recommendations of the three seniormost Judges of the Supreme Court of India for appointment, the appointment is not to be made (see second Proviso to Section 5 and Sub-Section (6) to Section 6 of the National Judicial Appointments Commission Act, 2014): another infringement of the of basic structure.
(G) No explanation has been forthcoming as to why the recommendations of the expert body (the Venkatachaliah Commission) set up by the predecessor of the present NDA government, whose recommendations had been also accepted by the Government in power have been now materially altered to the detriment of the constitutional concept of maintaining the independence of the Judiciary.
(H) Similarly there is no explanation why the provisions of the Constitution (Ninety Eighth Amendment) Bill, 2003 has been materially departed from: that Bill not only negated any possibility of Judges on the National Judicial Commission being outvoted by reason of its composition viz, that of five Members, and also specifically provided that no person who is not recommended for appointment as a Judge âby the Commissionâ shall be so appointed by the President: which is to be contrasted with âthe guidelineâ (so-called) – in the present case in the form of the National Judicial Appointments Commission Bill, 2014 (unconstitutionally passed by both Houses of Parliament) which indicates and actually envisages judicial members (the three seniormost Judges in the Courts) being outvoted in the matter of appointment of Judges in the Higher Judiciary. That is to say, where three seniormost judges of the Supreme Court of India (Members, of the Commission) in a Commission of six Members recommend a particular person (as meritorious and with integrity) to be appointed as a Judge, (either of the Supreme Court of India or of a High Court) any two other Members (not Judges) can outvote them and therefore the selection of members of the Higher Judiciary would in essence be dependent upon the negative vote of two members who are not Judges-not on the concurrent opinion. and vote of the three seniormost judges of the Supreme Court of India.
(I) Apart from the above, Parliament has not purported to set aside or nullify all or any of the larger Constitution Bench orders and judgments viz. (i) Bench of 13 Judges (majority judgment) in Keshavanada Bharti –1973 (4) SCC 225 at 1007 (order followed by a Bench of 5 Judges in Raghunathrao Ganpatrao v. UOI – 1994 (Supp.1) SCC 191 at para 48); (II) A Bench of nine-Judges in Supreme Court Advocates on Record Association v. UOI – 1993 (4) SCC 441 and re-affirmed again by a Bench of Nine Judges – in Special Reference No. 1 of 1008 – 1998 (7) SCC 739); and the said judgments themselves preclude – from effectively nullifying or removing the basis of any judgment of the Supreme Court affecting or dealing with a basic feature of the Constitution: in this case the independence of the Judiciary.
(J) The criteria of suitability for appointment of Judges in the Higher Judiciary not been provided for in the impugned Constitution 99th Amendment Act, 2014 is another ground for impugning its validity as a Constitutional amendment since it changes the Constitution’s basic feature. It was said in Parliament that provisions of Legislative – National Judicial Appointments Commission Bill No. 96C of 2014 purported to be passed by both the Houses of Parliament contrary to Article 124(2) as it stood, was to inform the States of what the Central Government was purporting to do, namely to specify by regulations, the criteria of suitability for appointment of Judges in Higher Judiciary to be specified by National Judicial Appointments Commission – a body, which does not envisage the three senior most Judges of the Supreme Court having a predominant voice and clearly contemplates that they could be outvoted. This affects the basic structure of the Constitution.
(K) That the Constitution 99th Amendment Act, 2014 and its provisions damage the basic structure and essential feature of Constitution, since it removes, in matter of appointment of Judges in Higher Judiciary, the primacy of Higher Judiciary and makes the executive element in the appointment of Judges predominant and thus adversely affects independence of Judiciary, which is a part of essential feature of Constitution of India.
(L) That the Constitution 99th Amendment Act, 2014 fails to protect and secure, the primacy of the Higher Judiciary in the matter of appointment of Judges in the Higher Judiciary and thus damages the basic feature, a cornerstone of Constitution.
(M) GROUNDS of challenge to the National Judicial Appointments Commission Bill No. 96 of 2014 passed by both Houses of Parliament in August 2014 and assented by the President on 31.12.2014 (as the National Judicial Appointments Commission Act 2014).
M(i) The National Judicial Appointments Commission Bill No. 96C of 2014 was passed by both Houses of Parliament when Parliament had no power, authority or jurisdiction to pass such a Bill in the teeth of Articles 124(2) and 217(1) as enacted in the Constitution of India, 1950. The passing of the said Bill was itself unconstitutional, ultra vires and void and neither the purported ratification by State Legislatures nor the assent of the President could give it any validity.
M(ii) Without prejudice to the above: the National Judicial Appointments Commission Act, 2014 (assuming it is to be treated as validly passed-which is denied) purport to provide unfettered regulatory power in matters pertaining to the functioning and appointment of Judges in the higher judiciary. Not only does it empowers the National Judicial Appointments Commission to formulate regulations in respect of criteria of suitability, other procedure & conditions for selection and appointment of Judges to the Higher Judiciary, but also provides that any such regulation made by the Commission shall be subject matter of approval by both the Houses of the Parliament. That Is to say, Section 13 of the National Judicial Appointments Commission Act, 2014 provides that any regulation made by the Commission, shall be placed before both the Houses of the Parliament, and subject to both the Houses of Parliament amending the regulations or agreeing that such regulation should not be made, such regulations would either be amended accordingly, or shall be annulled, without prejudice to the validity of anything done under the rule or regulation. This is impermissible and ultra vires.
M(iii) It is also submitted that the âPrimacyâ of the Opinion of Chief Justice of India is sought to be done away with by passing the National Judicial Appointments Commission Act of 2014, by giving âVetoâ powers to any two members of the National Judicial Appointments Committee (being either the Eminent Person or the Law Minister) thereby overruling the recommendation of the Chief Justice of India and other two Senior Most Judges of Hon’ble Supreme Court of India. Such provision is contrary to the observation of this Hon’ble Court in decision reported as (1993) 4 SCC 441, wherein the Bench of 9 Judges of this Hon’ble Court (by Majority of 5:4) has observed that (Para 432):-
âThe question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered to achieve the Constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of Judiciary, and thereby, to preserve democracy. A fortiori any construction of the Constitutional provisions which conflicts with this Constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and therefore, an alien conceptâ
M(iv) The criteria of suitability for appointment as a Judges is to be specified by âregulationsâ and these Regulations are to be made by âthe Commissionâ where the three seniormost judges do not have a predominate vote. This delegation of legislative power is ordinary in nature. This should have been in the Constitution. Till now it resides with the Chief Justice of India. This regulation can be annulled or modified by Parliament in its ordinary course of business.
7. It is submitted that the Constitution 99th Amendment Act, 2014 is beyond the amending power of Parliament and is void since it damages the basic structure and essential features of the Constitution of India, 1950 viz. the Independence of the Judiciary and violates the constitutional principle that the primacy of the higher judiciary must be secured and protected, executive element in the appointment of Judges must be reduced to the minimum.
It is further submitted that the National Judicial Appointments Commission Bill 96 of 2014 passed by both Houses of Parliament in August 2014 was beyond the legislative competence of Parliament and was in violation of Articles 124(2) and 217(1) of the Constitution of India as enacted which provisions were then in force in August 2014 and as such the same is invalid and void; it is respectfully submitted that the assent of the President to the said National Judicial Appointments Bill No. 96 of 2014. cannot confer any validity on a Bill which Parliament was not competent to pass.
8. In the circumstances aforesaid it should be declared that Articles 124(2) and 217(1) of the Constitution of India 1950 as enacted continue to remain in force and the interpretation placed upon these articles by the larger Constitution Bench judgments of this Hon’ble Court in (a) Keshavananda Bharti v. State of Kerala – 1973 (4) SCC 225 (13J); (b) Supreme Court Advocate-on-record Association v. UOI – 1993 (4) SCC 441 (9J); (c) Special Reference No. 1 of 1998 – 1998 (7) SCC 739 (93) re-affirmed) remain unaffected by the Constitution 99th Amendment Act, 2014 and by the purported passing of the National Judicial Appointments Commission Bill No. 96 of 2014 in August 2014 (and consequently the National Judicial Appointments Commission Act, 2014) to which presidential assent has been accorded does not in any way affect the continuance of the constitutional provisions contained in Articles 124(2) and 217(1) of the Constitution of India 1950 as enacted.
9. The Petitioner states that on 21.8.2014, the Supreme Court of India Advocates-on-Record Association had filed a Writ Petition No. 775 of 2014 challenging the Constitution 121st Amendment Bill. No. 97C of 2014 as passed by both Houses of Parliament (before It was sent to State Legislatures for ratification) on various grounds including the ground that it violated the basic structure of the Constitution and, was therefore invalid, void and unconstitutional. After hearing the aforesaid writ petition (along with other Writ Petitions) a Bench of three Hon’ble Judges of this Hon’ble recorded as follows:
âLooking at the facts of these cases, we are of the view that we should not entertain these petitions at this stage as they are premature.
Needless to say that it would be open to the petitioners to approach this Court at an appropriate stage and make all submissions on merits as the petitions have been disposed of as premature.
The writ petitions are disposed of with the above observations.â
A True Copy of the Order dated 25.8.2014 passed by this Hon’ble Court in Writ Petition No. 775 of 2014 is annexed herewith and marked as ANNEXURE P-6, Page Nos. 86-88.
10. The Petitioner states submits that besides the above, no other petition or any other proceeding has been filed by the Petitioner in this Hon’ble Court or any other Court claiming similar relief and that there is no other efficacious remedy available to the Petitioner except to approach this Hon’ble Court.
PRAYER
In view of the aforementioned facts and circumstances of the present case, the petitioners most respectfully pray that this Hon’ble Court may kindly be pleased to:-
(a) That it be declared by issuance of appropriate writ, order or direction that the Constitution 99th Amendment Act, 2014 violates the basic structure of the Constitution and is invalid, void and unconstitutional;
(b) That it be declared by issuance of appropriate writ, order or direction that the National Judicial Appointments Commission Bill No. 96C of 2014 passed by both the houses of Parliament in August 2014 was beyond the legislative competence of the Parliament and was in violation of Articles 124(2) and 217(1) of the Constitution of India as enacted and in force in August 2014 and as such is invalid and void;
(c) That it be declared by issuance of an appropriate Writ, order or direction that the assent of the President to the National Judicial Appointments Bill No. 96C of 2014 cannot confer any validity on the said National Judicial Appointments Bill No. 96C of 2014, since the Parliament was not competent to pass the National Judicial Appointments Bill No. 96C of 2014 in August 2014;
(d) That it be declared by issuance of an appropriate writ, order or direction that the Article 124(2) and Article 127(1) of the Constitution of India, 1950 as enacted continue to remain in force and the interpretation placed upon these articles by the larger Constitution Bench Judgments of this Hon’ble Court in (a) Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 (Bench of 13 Judges); (b) Supreme Court Advocates-on-Record Association v. Union of India – (1993) 4 SCC 441 (Bench of 9 Judges); (c) Special Reference No. 1 of 1998 – (1998) 7 SCC 739 (Bench of 9 Judges), remains unaffected by the Constitution 99th Amendment Act, 2014 and by the purported passing of the National Judicial Appointments Commission Bill No. 96C of 2014 (and consequently National Judicial Appointments Commission Act, 2014) to which Presidential assent has been accorded, does not in any way affect the continuance of the Constitutional provisions contained in Article 124(2) and 217(1) of the Constitution of India, 1950 as enacted;
(e) That appropriate writ, order or consequential directions be issued so that the Basic Structure of the Constitution is preserved;
(f) For that such further and other order/orders be passed as may be necessary and deemed fit and proper in the facts and circumstances of the case to sub serve the interest of justice and protect the independence of the Judiciary;
AND FOR THIS ACT OF KINDESS THE PETITIONER SHALL AS IN DUTY BOUND EVER PRAY.
AFFIDAVIT
I, Vipin nair, Secretary of Supreme Court Advocate-on-Record Association (Regd.), Golden Jubilee Bar Room, Supreme Court of India, New Delhi – 110 001, do hereby state on solemn affirmation as under;
1. That I am the Petitioner No. 2 and Secretary of the Petitioner No. 1 in the aforesaid case and as such I am fully conversant with the facts and proceedings of the case.
2. That I have read and understood the contents of para 1 to 10 and pages 1 to 57 of the accompanying Writ Petition and pages B to I of the List of Dates and I say that the facts stated therein are true and correct to my knowledge and belief.
3. That the annexures filed alongwith the Writ Petition are true and correct copies of the respective originals.
4. That I have not filed any other petition In this Hon’ble Court or any other High Court seeking self same reliefs.
DEPONENT,
VERIFICATION :
I, the deponent abovenamed, do hereby state on solemn affirmation that the contents of the paras 1 to 4 are true and correct to my knowledge and I believe the same to be true and that nothing material has been concealed therefrom.
Verified at New Delhi on 3.1.2015,
DEPONENT.
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 31st December, 2014/Pausa 10, 1936 (Saka)
The following Act of Parliament received the assent of the President on the 31st December, 2014, and is hereby published for general information:-
THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014
No. 40 of 2014
[21st December, 2014.]
An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:-
1. (1) This Act may be called the National Judicial Appointments Commission Short title and Act 2014 commencement.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2 THE GAZETTE OF INDIA EXTRAORDINARY [Part II-
Definitions. 2. In this Act, unless the context otherwise requires,-
(a) âChairpersonâ means the Chairperson of the Commission;
(b) âCommissionâ means the National Judicial Appointments Commission referred to in article 124A of the Constitution;
(c) âHigh Courtâ means the High Court in respect of which recommendation for appointment of a Judge is proposed to be made by the Commission;
(d) âMemberâ means a Member of the Commission and includes its Chairperson;
(e) âprescribedâ means prescribed by the rules made under this Act;
(f) âregulationsâ means the regulations made by the Commission under this Act.
3. The Headquarters of the Commission shall be at Delhi.
Headquarters of Commission.
Reference to Commission or filling up of vacancies.
4. (1) The Central Government shall, within a period of thirty days from the date of coming into force of this Act, intimate the vacancies existing in the posts of Judges in the Supreme Court and in a High Court to the Commission for making its recommendations to fill up such vacancies.
(2) The Central Government shall, six months prior to the date of occurrence of any vacancy by reason of completion of the term of a Judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendation to fill up such vacancy.
(3) The Central Government shall, within a period of thirty days from the date of occurrence of any vacancy by reason of death or resignation of a Judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendations to fill up such vacancy.
Procedure for selection of Judge of Supreme Court
5. (1) The Commission shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office:
Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting,
(2) The Commission shall, on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed as such under clause (3) of article 124 of the Constitution:
Provided that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge shall be considered:
Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.
(3) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Judge of the Supreme Court as it may consider necessary.
Procedure for selection of Judge of high Court.
6. (1) The Commission shall recommend for appointment a Judge of a High Court to be the Chief Justice of a High Court on the basis of inter se seniority of High Court Judges and ability, merit and any other criteria of suitability as may be specified by regulations.
(2) The Commission shall seek nomination from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court.
Sec. 11 THE GAZETTE OF INDIA EXTRAORDINARY 3
(3) The Commission shall also on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, nominate name for appointment as a Judge of a High Court from amongst persons who are eligible to be appointed as such under clause (2) of article 217 of the Constitution and forward such names to the Chief Justice of the concerned High Court for its views,
(4) Before making any nomination under sub-section (2) or giving its views under sub-section (3), the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court. as may be specified by regulations,
(5) After receiving views and nomination under sub-sections (2) and (3), the Commission may recommend for appointment the person who is found suitable on the basis of ability, merit and any other criteria of suitability as may be specified by regulations,
(6) The Commission shall not recommend a person for appointment under this section if any two members of the Commission do not agree for such recommendation.
(7) The Commission shall elicit in writing the views of the Governor and the Chief Minister of the State concerned, before making such recommendation in such manner as may be specified by regulations.
(8) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Chief Justice of a High Court and a Judge of a High Court as it may consider necessary.
7. The President shall, on the recommendations made by the Commission, appoint the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or the Judge of a High Court:
Power of President to require reconsideration
Provided that the President may, if considers necessary, require the Commission to reconsider, either generally or otherwise, the recommendation made by it:
Provided further that if the Commission makes a recommendation after reconsideration in accordance with the provisions contained in sections 5 or 6, the President shall make the appointment accordingly.
8. (1) The Central Government may, in consultation with the Commission, appoint such number of officers and other employees for the discharge of functions of the Commission under this Act.
Officers and employees of Commission.
(2) The terms and other conditions of service of officers and other employees of the Commission appointed under sub-section (I) shall be such as may be prescribed.
(3) The Convenor of the Commission shall be the Secretary to the Government of India in the Department of Justice.
9. The Commission shall recommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such transfer.
Procedure for transfer of Judges.
10. (1) The Commission shall have the power to specify, by regulations, the procedure for the discharge of its functions.
(2) The Commission shall meet at such time and place as die Chairperson may direct and observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meeting), as it may specify by regulations.
Procedure to be followed by Commission in discharge of its functions.
11. (1) The Central Government may by notification in the Official Gazette, make rules to carry out the provisions of this Act.
Power to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the fees and allowances payable to the eminent persons nominated under sub-clause (d) of clause (1) of article 124A of the Constitution;
4 THE GAZETTE OF INDIA EXTRAORDINARY [Part II-
(b) the terms and other conditions of service of officers and other employees of the Commission under sub-section (2) of section 8;
(c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.
Power to make regulations.
12.(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act, and the rules made thereunder, to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely;-
(a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sab-section (2) of section 5;
(b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under sub-section (3) of section 5;
(c) the criteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of section 6;
(d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of section 6;
(e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6;
(F) other procedure and conditions for selection and appointment of a Judge of the High Court under sub-section (8) of section 6; (g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court under section. 9;
(h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of section 10;
(i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the quorum at its meeting, under sub-section (2) of section 10;
(J) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations.
Rules and regulations to be laid before parliament
13. Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, beforeeach Houseof Parliament, while itis in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity. of anything previously done under that rule or regulation.
Power to remove difficulties
14. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, after consultation with the Commission, by an order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Sec. 1] THE GAZETTE OF INDIA EXT RAORDINARY 5
Provided that no such order shall be made after the expiry of a period of five years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament,
DR. SANJAY SINGH,
Secretary to the Govt. of India.
Annexure P-2 65
As introduced in lok sabha on 11.8.2014
Bill No. 97 of 2014
THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014
A
BILL
further to amend the Constitution of India.
Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows;-
1. (1) This Act may be called the Constitution (One Hundred and Twenty-first Amendment) Act, 2014.
Short title and commencement
(2) It shall come into force on such date as the Central Government may, by notification 5 in the Official Gazette, appoint.
2. In article 124 of the Constitution, in clause (2),-
Amendment of article 124.
(a) for the words âafter consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposeâ, the words, figures and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted;
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words âProvided further thatâ, the words âProvided thatâ shall be substituted.
Insertion of new articles 124A. J24B and 124C.
3. After article 124 of the Constitution, the following articles shall be inserted, namely:-
5
National Judicial Appointments Commission.
â124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:-
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India-Members, ex officio;
10
(c) the Union Minister in charge of Law and Justice-Member, ex officioâ,
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People-Members:
15
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women;
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. 20
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
Functions of Commission.
124B. It shall be the duty of the National Judicial Appointments Commission toâ
25
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
30
(c) ensure that the person recommended is of ability and integrity.
Power of Parliament make law
124C. Parliament may, by law, regulate the procedure for the appoinunent of to Chif 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 35 appointment and such other matters as may be considered necessary by it.â.
Amendment of article 127.
4. In article 127 of the Constitution, in clause (1), for the words âthe Chief Justice of India may, with the previous consent of the Presidentâ, the words âthe National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the Presidentâ shall be substituted. 40
Amendment of article 128.
5. In article 128 of the Constitution, for the words âthe Chief Justice of Indiaâ, the words âthe National Judicial Appointments Commissionâ shall be substituted.
6. In article 217 of the Constitution, in clause (1), for the portion beginning with the Amendment words âafter consultationâ, and ending with the words âthe High Courtâ, the words, figures of article 217. and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted.
5
7. In article 222 of the Constitution, in clause (1), for the words âafter consultation with Amendment the Chief Justice of Indiaâ, the words, figures and letter âon the recommendation of the of article 222, National Judicial Appointments Commission referred to in article 124Aâ shall be substituted.
8. In article 224 of the Constitution,-
Amendment of articale 224.
(a) in clause (1), for the words âthe President may appointâ, the words âthe 10 President may, in consultation with the National Judicial Appointments Commission, appointâ shall be substituted;
(b) in clause (2), for the words âthe President may appointâ, the words âthe President may, in consultation with the National Judicial Appointments Commission, appointâ shall be substituted.
15
9. In article 224A of the Constitution, for the words âthe Chief Justice of a High Court for Amendment any Setate may at any time, with the previous consent of the Presidentâ, the words âthe of artical 224A National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the Presidentâ shall be substituted.
10. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.
Amendment of article 231.
STATEMENT OF OBJECTS AND REASONS
The Judges of the Supreme Court are appointed under clause (2) of article 124 and the Judges of the High Courts are appointed under clause (1) of article 217 of the Constitution, by the President. The Ad-hoc Judges and retired Judges for the Supreme Court are appointed under clause (1) of article 127 and article 128 of the Constitution respectively. The appointment of Additional Judges and Acting Judges for the High Court is made under article 224 and the appointment of retired Judges for sittings of the High Courts is made under article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.
2. The Supreme Court in the matter of the Supreme Court Advocates-on-Record Association v. Union of India in the year 1993, and in its Advisory Opinion in the year 1998 in the Third Judges case, had interpreted clause (2) of article 124 and clause (1) of article 217 of the Constitution with respect to the meaning of âconsultationâ as âconcurrenceâ. Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and is being followed for appointment.
3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court-and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointments Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts, The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.
4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 is an enabling constitutional amendment for amending relevant provisions of the Constitution and for setting up a National Judicial Appointments Commission. The proposed Bill seeks to insert new articles 124A, 124B and 124C after article 124 of the Constitution. The said Bill also provides for the composition and the functions of the proposed National Judicial Appointments Commission. Further, it provides that Parliament may, by law, regulate the procedure for appointment of Judges and empower the National Judicial Appointments Commission to lay down procedure by regulation for the discharge of its functions, manner, of selection of persons for appointment and such other matters as may be considered necessary.
5. 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.
6. The Bill seeks to achieve the above objectives.
New Delhi; RAVI SHANKAR PRASAD.
The 8th August, 2014.
PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA
[Copy of letter No. K-11016/1/2009-US.II, dated 8 August, 2014 from Shri Ravi Shankar Prasad, Minister of Law and Justice to the Secretary-General, Lok Sabha]
The President, having been informed of the subject matter of the proposed Constitution (One Hundred and Twenty-first Amendment) Bill, 2014, recommends to the House the consideration of the Bill under article 117(3) of the Constitution of India.
ANNEXURE
Extracts from the Constitution of India
******
Chapter IV. -The Union Judiciary
124. (1) * * * * *
Establishment and constitution of Supreme Court.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided futher 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 in the manner provided in clause (4).
127.(1) If at any time there should not be a quorum of the Judges of the Supreme Court Appointment available to hold or continue any session of the Court, the Chief Justice of India may, with the of, ad hoc Judges. previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for. appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
*****
128. Notwithstanding anything in this Chapter, the Chief Justice of India may at any Attendance time, with the previous consent of the President, request any person who has held the office of retired Judges at of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge Sitting of the of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit supreme and act as a Judge of the Supreme Court, and every such person so requested shall, while so Court. sitting, and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
* * * * *
217. (1) Every Judge of a high Court shall be appointed by the President by warrant Appointment under his hand and seal after consultation with the Chief Justice of India, the Governor of and conditions of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief the officer of Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, a Judge of a as provided in article 224, and in any other case, until he attains the age of sixty-two years: High Court.
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.
* * * * *
Transfer of a 222. (1) The President may, after consultation with the Chief Justice of India, transfer Judge from one a Judge form one High Court to any other High Court. High Court to another. * *. * * *
Appointment 224. (1) If by reason of any temporary increase in the business of a High Court or by of additional reason of arrears of work therein, it appears to the President that the number of the Judges of and sciting Judges that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.
(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
*****
Appointment 224A. Notwithstanding anything in this Chapter, the Chief Justice of a High Court for of retired Judes at any State may at any time, with the previous consent of the President, request any person sitting of who has held the office of a Judge of that Court or of any other High Court to sit and act as High Courts. a Judge of the High Court for that State, and every such person so requested shall, while, so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
* * * * * *
Establishment 231. (1) * * * * * of a common
High Court (2) In relation to any such High Court, –
more states. (a) me reference in article 217 to the Governor of me State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
*****
LOK SABHA
A
BILL further to amend the Constitution of India.
(As passed by Lok Sabha)
GMGIPMRND-2247LS-13.08.2014.
AS PASSED BY LOK SABHA
on 13.08.2014
Bill No. 97-C of 2014
THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014
A
BILL
further to amend the Constitution of India.
Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:-
1. (i) This Act may be called the Constitution (Ninety-ninth Amendment) Short title. Act, 2014. and commencement.
(2) It shall come into force on such date as the Central Government may, by notification 5 in the Official Gazette, appoint.
2. In article 124 of the Constitution, in clause (2),-
Amendment of article 124.
(a) for the words âafter consultation, with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposeâ, the words, figures and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted;
10
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words âProvided further thatâ, the words âProvided thatâ shall be substituted.
Insertion of new articles 124A, 124B and 124C.
3. After article 124 of the Constitution, the following articles shall be inserted, namely:-
5
National Judicial Appointments Commission.
â124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:-
(a) the Chief Justice of India, Chairperson, ex officio:
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India-Members, ex officio; 10
(c) the Union Minister in charge of Law and Justice-Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People – Members; 15
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. 20
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
Functions of 124B. It shall be the duty of the National Judicial Appointments Commission Commission. to-
25
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transferof Chief Justices and other Judges of High Courts from one High Court to any other High Court; and 30
(c) ensure that the person recommended is of ability and integrity.
Power of 124C. Parliament may, by law, regulate the procedure for the appointment of Parliament to make law. Chif 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 35 appointment and such other matters as may be considered necessary by itâ.
Amendment 4. In article 127 of the Constitution, in clause (1), for the words âthe Chief Justice of of article 127. India may, with the previous consent of the Presidentâ, the words âthe National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the Presidentâ shall be substituted. 40
Amendment 5. In article 128 of the Constitution, for the words âthe Chief Justice of Indiaâ, the of article 128. words âthe National Judicial Appointments Commissionâ shall be substituted.
6. In article 217 of the Constitution, in clause (1), for the portion beginning with the Amendment words âafter consultationâ, and ending with the words âthe High Courtâ, the words, figures of aricle 127 and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted.
5
7. In article 222 of the Constitution, in clause (1), for the words âafter consultation with Amendment the Chief Justice of Indiaâ, the words, figures and letter âon the recommendation of the of article 222 National Judicial Appointments Commission referred to in article 124Aâ shall be substituted.
8. In article 224 of the Constitution,- Amendment of article 224.
(a) in clause (1), for the words âthe President may appointâ, the words âthe President may, in consultation with the National Judicial Appointments Commission, appointâ shall be substituted;
10
(b) in clause (2), for the words âthe President may appointâ, the words âthe President may, in consultetion with the National Judicial Appointments Commission, appointâ shall be substituted.
15
9. In article 224A of the Constitution, for the words âthe Chief Justice of a High Court for Amendment any State may at any time, with the previous consent of the Presidentâ, the words âthe of article 224A. National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the Presidentâ shall be substituted.
10. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.
Amendment of article 231.
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 31st December, 2014/Pausa 10, 1936 (Saka)
The following Act of Parliament received the assent of the President on the 31st December, 2014, and is hereby published for general information:-
THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014
[31st December, 2014.]
An Act further to amend the Constitution of India.
Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows;-
1. (1) This Act may be called the Constitution (Ninety-ninth Amendment) Act, 2014.
Short title and commencement
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. In article 124 of the Constitution, in clause (2),-
Amendment of article 124.
(a) for the words âafter consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposeâ, the words, figures and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted;
2 THE GAZETTE OF INDIA EXTRAORDINARY [Part II-
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words âProvided further thatâ, the words âProvided thatâ shall be substituted.
insertion of new articles 124A, 124B and 124C.
3. After article 124 of the Constitution, the following articles shall be inserted, namely:-
National Judicial Appointments Commission.
â124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:-
(a) the Chief Justice of india, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India-Members, ex officio;
(c) the Union Minister in charge of Law and Justice-Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People-Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination,
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
Functions of Commission.
124B. It shall be the duty of the National Judicial Appointments Commission to-
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and integrity.
Power of Parliament make to
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.â.
Amendment of article 127.
4. In article 127 of the Constitution, in clause (1), for the words âthe Chief Justice of lndia mayj with prevjous consent of the Presidentâ, the words âthe National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the Presidentâ shall be substituted.
Amendment of article 128.
5. In article 128 of the Constitution, for the words âthe Chief Justice of Indiaâ, the words the National Judicial Appointments Commissionâ shall be substituted.
Sec.1] _________THE GAZETTE OF INDIA EXTRAORDINARY_______________3
6. In article 217 of the Constitution, in clause (1), for the portion beginning with the Amendment words âafter consultationâ, and ending with the words âthe High Courtâ, the words, figures of article 217 and letter âon the recommendation of the National Judicial Appointments Commission referred to in article 124Aâ shall be substituted,
7. In article 222 of the Constitution, in clause (1), for the words âafter consultation with Amendment the Chief Justice of Indiaâ, the words, figures and letter âon the recommendation of the of article 222 National Judicial Appointments Commission referred to in article 124Aâ shall be substituted.
8. In article 224 of the Constitution,-
Amendment of article 224.
(a) in clause (1), for the words âthe President may appointâ, the words âthe President may, in consultation with the National Judicial Appointments Commission, appointâ shall be substituted;
(b) in clause (2), for the words âthe President may appointâ, the words âthe President may, in consultation with the National Judicial Appointments Commission, appointâ shall be substituted.
9. In article 224A of the Constitution, for the words âthe Chief Justice of a High Court for Amendment any Slate may at any time, with the previous consent of the Presidentâ, the words âthe of article 224A. National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the Presidentâ shall be substituted.
10. In article 231 of the-Constitution, in clause (2); sub-clause (a) shall be omitted.
Amendment of article 231.
DR. SANJAY SINGH,
Secretary to the Govt, of India,
LOK SABHA
A
BILL
further to amend the Constitution of lndia.
(Shri Arun Jaitley, Minister of Law and Justice)
MG:PMR-1O25LS-08.06.2003
STATEMENT OF OBJECTS AND REASONS
The Government of India has been committed to the setting up of a. National Judicial Commission for appointment of Judges of the Supreme Court, and Chief Justices and Judges of the High Courts as well as their transfer, so as to provide effective participation of both the Executive and the Judicial Wings of the Government. The National Commission to Review the Working of the Constitution also considered this matter and recommended the establishment of the National Judicial Commission under the Constitution for appointment of Judges of the Supreme Court.
2. The National Judicial Commission to make recommendations with respect to the appointment of Judges of the Supreme Court shall consist of-
(i) the Chief Justice of India, who shall be the Chairperson of the Commission;
(ii) two other Judges of the Supreme Court next to the Chief Justice of India in seniority;
(iii) the Union Minister in-charge of Law and Justice and
(iv) one eminent citizen to be nominated by the President of India in consultation with the Prime Minister for a period of three years.
In the case of appointment or transfer of a Judge of a High Court, the concerned Chief Justice and the Chief Minister, or when a proclamation under article 356 is in operation in a State, the Governor of that State shall be associated with the Commission.
3. The Commission shall draw up a Code of Ethics for the Judges of the Supreme Court. the Chief Justices and the Judges, of the High Courts and would inquire into cases of their misconduct or deviant behaviour and advise the Chief Justice of India or the Chief Justice of the High Court concerned, appropriately.
4. The Bill seeks to achieve the above objects.
ARUN JAITLEY.
New Delhi;
The 8th May, 2003.
PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA
(Copy of letter No. K.11011/3/2003-US.II dated the 8th May, 2003 from Shri. Arun Jaitiey, Minister of Law and Justice to the Secretary-General, Lok Sabha)
The President having been informed of the subject matter of the proposed Coristirution (Ninety-eighth Amendment) Bill, 2003 has recommended the introduction of the Bill under clause (1) of article 117 of the Constitution in Lok Sabha,
FINANCIAL MEMORANDUM
Clause 3 of the Bill seeks to insert a new Chapter IVA in Part V of the Constitution to provide for the constitution of a Commission to be referred to as the National Judicial Commission. The commission shall comprise the Chief Justice of India, who shall be its Chairperson, two judges of the Supreme Court next to the Chief Justice of India in seniority, the Union Minister in-charge of Law and Justice and one eminent citizen to be nominated by the President of India in consultation with the Prime Minister.
2. The abovementioned Functionaries of the Commission will be devoting only part of their time in connection with the work of the Commission and will draw traveling and other allowances from the respective budgets. The Commission will have a separate office of its own. The President may by regulation and on the advice of the Chairperson of the Commission, make provisions with respect to the number of members of the staff of the Commission and other conditions of service. The expenditure will have to be incurred on their salaries and on contingencies for running the office of the Commission. It is not feasible, at this stage, to estimate the likely expenditure to be involved on this account. However, the expenditure, whether recurring or non-recurring will be met out of the budgetary accounts of the Department of Justice.
3. The provisions of the Bill do not involve any other expenditure of a recurring or non-recurring nature.
As INTRODUCED IN Lok Sabha
Bill No. 41 of 2003
THE CONSTITUTION (NINETY-EIGHTH AMENDMENT) BILL, 2003
A
BILL
further to amend the Constitution of India.
BE it enacted by Parliament in the Fifty-fourth Year of the Republic of India as follows:-
1. (1) This Act may be called the Constitution (Ninety-eighth Amendment) Act, 2003.
Short title and commences
(2) It shall come into force on such date as the Central Government may by notification in the Official Gazette, appoint.
2. In article 124 of the Constitution, in clause (2) for the portion beginning Amandent of with the words âafter consultationâ and ending with the words âProvided farther article 124. that-â the following shall be substituted, namely:-
âon the recommendation of the National Judicial Commission and shall hold office until he attains the age of sixty-five years:
Provided that-â
insertion of new Chapter IVA.
3. In Part V of the Constitution, after Chapter IV, the following Chapter shall be inserted, namely:-
âCHAPTER IVA. – NATIONAL JUDICIAL COMMISSION
Constitution of National Judicial Commission and its functions.
147A. (1) The President shall by order constitute a Commission, referred to in this Constitution as the National Judicial Commission.
(2) Without prejudice to the provisions of clause (3), the National Judicial Commission shall consist of the following:-
(a) the Chief Justice of India, who shall be the Chairperson of the Commission;
(b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority;
(c) the Union Minister in-charge of Law and Justice; and
(d) one eminent citizen to be nominated by the President in consultation with the Prime Minister:
Provided that the eminent citizen nominated under sub-clause (e) shall hold office for a period of three years.
(3) In the case of appointment or transfer of a Judge of a High Court, the Chief Justice of that High Court and the Chief Minister of that State or, when a proclamation under article 356 is in operation in that State, the Governor of that State, shall be associated with the Commission.
(4) It shall be the duty of the Commission-
(a) to make recommendation of persons for appointment of Judges of the Supreme Court. Chief Justices of High Courts and the Judges of the High Courts;
(b) to make recommendation for the transfer of the Chief Justices of High Courts and the Judges of High Courts from one High Court to any other High Court;
(c) to draw up a code of ethics for Judges of the Supreme Court. Chief Justices of High Courts and the Judges of the High Courts;
(d) to inquire into, sua motu or on a complaint or reference, cases of misconduct or such deviant behaviour of a Judge other than those calling for his removal and advise the Chief Justice of India or the Chief Justice of a High Court appropriately after such inquiry.
(5) The recommendation made by the Commission under clause (4) shall be binding.
(6) No person, who is not recommended for appointment as a Judge by the Commission, shall be so appointed by the President.
(7) The Commission shall have the power to regulate its own procedure including the procedure to be followed under sub-clause (d) of clause (4)
4. In article 217 of the Constitution, in clause (1), for the portion beginning with the words âafter consultationâ and ending with the words âthe High Courtâ, the words âon the recommendation of the National Judicial Commissionâ shall be substituted.
5. In article 222 of the Constitution in clause (1), for the words âafter consultation with the Chief Justice of Indiaâ, the words âon the recommendation of the National Judicial Commissionâ shall be substituted.
6. In article 231 of the Constitution, in clause (2). for sub-clause (a), the following sub-clause shall be substituted, namely:-
â(a) the reference in clause (3) of article 147A to the Chief Minister of the State shall be construed as a reference to the Chief Ministers of all the States in relation to which the High Court exercises jurisdiction:â.
ANNEXURE
Extracts from the Constitution of India
*****
Chapter IV – The Union Judiciay
Establishment and constitution of Supreme Court
124.(1) * * ***
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains-the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided further 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 in the manner provided in clause (4).
* * * * *
Appointment and conditions of the office of a Judge of a High Court
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 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:
* * * * *
Transfer of a Judge from one Another.
222. (1) The President may, after consultation with the Chief Justice of India. transfer a Judge from one High Court to any other High Court.
* * * * *
231. (1) * * * * *
(2) In relation to any such High Court, –
(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the subordinate courts are situate; and
(c) the reference in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat:
Provided that if such principal seat is in a Union territory, the references in articles 219 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.
*****
ORDER
Looking at the facts of these cases, we are of the view that we should not entertain these petitions at this stage as they are premature.
Needless to say that it would be open to the petitioners to approach this Court at an appropriate stage and make all submissions on merits as the petitions have been disposed of as premature.
The writ petitions are disposed of with the above observations.
ORDER
The writ petitions are disposed in terms of the signed order.
SURYA KANT
Advocate-on-Record
422-A, New Lawyers’ Chamber
Supreme Court of India
New Delhi -110 001.
Mob.: 09810590899
The Registrar
Supreme Court of India Date : 6.1.2015
New Delhi.
Sub. : Writ Petition (C) No. of 2015 –
Supreme Court Advocates-on-Record Association & Anr. v. Union of India
Sir,
The Petitioners above named have filed the aforesaid Writ Petition. The Registry of this Hon’ble Court has pointed out a defect that copies of Annexures filed with the paper books are in small fonts. It is submitted in this regard that the said documents/annexures are the copies of Gazette and Acts and the same are clear and readable. You are, therefore, requested to process the matter further at my risk and register the Writ Petition at the earliest.
Thanking you,
Yours/sincerely,
(Surya Kant)
OFFICE REPORT
It is submitted that the Writ Petitions above-mentioned have filed in this Registry by Mr. Surya Kant and Mr. D.K. Garg, Advocates on behalf of the Petitioners respectively.
It is further submitted that both the matters above-mentioned have boon tagged as both are arising out of similar issue.
It is further submitted that WP(C) Nos. 762/2014 and 775/2014 relating to the similar issue were disposed of vide orders dated 25.08.2014 passed by this Hon’ble Court. (Copy of order dated 25.08.2014 is annexed as Annexure P-6 at page No. 86 in WP (C) No. 13/2015 paper book).
The Writ Petitions above-mentioned are listed before the Hon’ble Court with this office report.
Dated this the 9th day of March, 2015.
ASSISTANT REGISTRAR
OFFICE-REPORT
The matters above-mentioned were listed before the Hon’ble Court on 11.03.2015, when the Court was pleased to pass inter-alia the following order:
ââŚList all the matters on 17.03.2015 at 10.30 A.M. (for whole day).â
It is further submitted that Mr. Tushar Bakshi, Advocate has on 13.03.2015 filed an application for impleadment as respondent in W.P. (C) No. 13 of 2015 on behalf of the applicant (copy of the same as a separate paper book is being circulated herewith).
The writ petitions alongwith application above-mentioned are listed before the Hon’ble Court with this office report.
Dated this the 16th day of March, 2015.
ASSISTANT REGISTRAR
OFFICE-REPORT
The matters above-mentioned were listed before the Hon’ble Court on 19.03.2015 with office report dated 16.03.2015, when the Court was pleased to pass the following order:
âMr. Dushyant A. Dave, learned senior counsel appearing for the intervenor (Suprme Court Bar Association), started his arguments at 10.45 a.m. and concluded at 11.35 a.m.
Mr. Mukul Rohtagi, learned Additional Solicitor General, made his submissions for a few minutes.
Mr. T.R. Andhyarujina, learned senior counsel made his submissions till 12.30 a.m.
Mr. Mathews J. Nedumpara, learned counsel made his submissions for a few minutes.
Mr. Fali S. Nariman, learned senior counsel appearing for the petitioner in WP(C) No. 13/2015, started his arguments at 12.45 p.m. and could not conclude till 1.00 p.m. when the Court rose.
The matters remained Part-heard.
List the matters on 24th March, 2015, at 10.30 a.m. as Part-heard.â
It is further submitted that Mr. Bhim Singh, Sr. Advocate (Petitioner-in-person in WP(C) No. 23/2015) has on 20.03.2015 filed an application to discharge the Advocate-on-record with permission to appear and argue in person. The said application has been registered as I.A. No. 1 in WP(C) No. 23/2015. (Copy is being circulated herewith).
It is further submitted that interaction could not be done with Registrar as per Order IV Rule 1(C) proviso of Supreme Court Rules, 2013.
The writ petitions alongwith applications above-mentioned are listed before the Hon’ble Court with this office report.
Dated this the 23rd day of March, 2015.
ASSISTANT REGISTRAR
OFFICE-REPORT
The matters above-mentioned were listed before the Hon’ble Court on 15.04.2015, when the Court was pleased to pass the following order:
âList the matters before a Bench of which one of us (Anil R. Dave, J.) is not a memberâ
It is further submitted that Mr. Ramesh N. Keswani, Advocate has filed application for intervention alongwith vakalatnama and memo of appearance on behalf of applicant and the application has been registered as I.A. no. 5 of 2015. Mr. Gautam Narayan, Advocate has filed application for intervention and directions alongwith vakalatnama and memo of appearance on behalf of applicant and the application for intervention has been registered as I.A. no. 7 Of 2015. Mr. Surya Kant, Advocate for the petitioner has on 17.04.2015 filed an application for stay and the same has been registered as I.A No. 6 of 2015 in Writ Petition No. 13/2015. (copies of all the aplications are being circulated herewith).
The writ petitions alongwith applications above-mentioned are listed before the Hon’ble Court with this office report. Dated this the 20th day of April, 2015.
ASSISTANT REGISTRAR
âââ
1 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L&S) 577.
2 (1993) 4 SCC 441.
3 (2000) 4 SCC 640: 2000 SCC (L&S) 489.
4 (1992) 2 SCC 428: 1992 SCC (L&S) 561: (1992) 20 ATC 239.
5 (2002) 4 SCC 247: 2002 SCC (L&S) 508.
