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A. WHETHER THE ASSAILED CONSTITUTION AMENDMENT AND THE

NJAC ACT 2014 IS UNDERMINING THE INDEPENDENCE OF JUDICIARY.

In the instant petition, the main argument that lies for consideration for this Hon’ble Court is

that the assailed Constitution Amendment Act and the NJAC Act, 2104 is iolating the

concept of !Independence of Judiciar"# as has been $udiciall" eoled b" the state of %alston

through its $udgement rendered in Second 1 and Third Judges Case.2

&irst to understand the concept, Independence of the Judiciar" means that the $udiciar" as the

'ing of the goernment should be free from the influence and control of the other t'o organs

i(e( the e)ecutie and the legislature of goernment as Judiciar" is the sentinel of the

Constitution and its fundamental alues and is considered as the lifeblood of

constitutionalism in democratic societies(

In the instant case, the passing of the impugned legislation has ta*en a'a" such role and

po'er of Judiciar" as e)plained aboe( +" placing reliance on the First Judges Case3 decided

b" this Hon’ble Court, 'hereb" this court proceeded on the assumption that the Independence

of Judiciar" is the basic feature of the Constitution but failed to appreciate that the

interpretation, it gae, 'as not in conformit" 'ith 'ider facets of the t'o concepts i(e(

Independence of Judiciar"’ and Judicial -eie'’ . 'hich are interlin*ed and interconnected

to each other#(

! If there is one principle which is pervasive through the entire fabric of the Constitution, it is

the principle of the rule of law and under the Constitution, it is the udiciar! which is

entrusted with the tas" of "eeping ever! organ of the State within the li#its of the law and

thereb! #a"ing the rule of law #eaningful and effective(# 4

&urther it 'as held that , the principle of $independence of the udiciar!% had to be "ept in

#ind, while interpreting the provisions of the Constitution&(

1 Supreme Court Advocates on Record v Union of India, 1993 4 SCC 441

2 Special Reference No.1 of 199, !199" # SCC #39

3 S.$. %upta v. Union of India, 191 !Supp" SCC #

4 I&id,

' !$ara(rap) 2#".


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No', again b" considering the Second Judges Case, decided b" this Hon’ble Court, it is to be

said that the position adopted of a nine.Judge +ench, b" a ma$orit" of /2, regarding this, the

pri#ac! of opinion 'as gien to the Chief $ustice of %alston in the matters of appointment of

Judges to the higher $udiciar", and a conclusion 'as made that the $udgment rendered in the

First Judges case, did not la! down the correct law.

ne of the Judges on the +ench, 'ho supported the minorit" opinion, also endorsed the ie',

which the action of the e'ecutive to put off the reco##endation(s) #ade b! the Chief Justice

of India, would a#ount to an act of deprival, $*iolating the Spirit of the Constitution #( he

3econd Judges case, almost unanimousl" concluded, that in the #atter of selection and

appoint#ent of Judges to the higher udiciar!, pri#ac! in the decision #a"ing process,

un+uestionabl! rested with the udiciar!(

It is further argued that the principles laid do'n in the Second and Third Judges cases b" this

Hon’ble Court are not based purel" on the interpretation of the te)t of the Constitution as it

stood prior to the impugned amendment but also on the basis of a fundamental Constitutional

principle that an Independent Judiciar" is one of the basic features of the Constitution( he

procedure for appointment of the Judges to the higher $udiciar" is an important element in the

establishment and nurturing of an Independent Judiciar"(

It is no' submitted that, the independence of $udiciar" is intimatel" lin*ed and connected

'ith the constitutional process of appointment of $udges of the higher $udiciar" and it is 'ell

established no' that the Independence of Judiciar"’ is the basic feature of our Constitution(

No', to contend that the Impugned Constitutional Amendment and the NJAC Act, 2104 are

undermining the principle of !Independence of Judiciar"#, certain uestions are needed to be

ans'ered

I( H5 I6789N5: A65N:65N I3 A9AI3N H5 7-C533 & J8:ICIA;

-5%I5


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he Indian 3upreme Court through its 3een.Judge +ench= has held that the po'er of

!Judicial -eie' of legislatie action b" the 3upreme Court and High Courts is part of the

+asic 3tructure of the Constitution(

2 is one of the features upon 'hich hinges

the s"stem of Chec*s and +alances and further the concept of Independence of Judiciar"’

and Judicial -eie'’ are interlin*ed(/

o state the elouent 'ords of Justice ?rishna I"er, of the Indian 3upreme Court, that

$Independence of the udiciar! is not genufle'ion, nor is it opposition of overn#ent% ( It is

submitted, that under the Constitution of %alston the constitutional safeguards 'hich ensure

the Independence of the Judges of the superior $udiciar", are not aailable to the Judges of the

subordinate $udiciar" or to those 'ho man tribunals created b" ordinar" legislations( 2 of the Constitution as an integral

and essential feature of the Constitution, constituting part of its !+asic 3tructure#(@

he Indian 3upreme Court, in the &undamental -ights Case held that, !here is ample

eidence in the Constitution itself to indicate that it creates a s"stem of Chec*s and +alances

b" reason of 'hich po'ers are so distributed that none of the three organs it sets up can

become so pre.dominant as to disable the others from e)ercising and discharging po'ers and

* + C)andra umar v. Union of India - rs., AIR 199# 3 SCC 2*1

#

!para(rap) #"

9 esavananda /)arati v. State of erala, 3** !19#3" 4 SCC 22'


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functions entrusted to them( hough the Constitution does not la" do'n the principle of

3eparation of 7o'ers in all its rigidit"(#

In the instant matter, the braBen attempt led b" the e)ecutie to usurp the po'er and engulf

the sacred pillar of Judicial Independence b" enacting section 2aD of the impugned

constitutional amendment is against the er" premise of the s"stem of appointment 'hich

'ere originall" enacted in the constitution of %alston(

he uestion 'hich arises before us is regarding the nature of the standards of $udicial reie'

reuired to be applied in $udging the alidit" of the constitutional amendments in the conte)t

of the doctrine of +asic 3tructure(

+ased on the aboe conclusions, it is submitted, that !Independence of the Judiciar"# could

be maintained, onl" if appointments of Judges to the higher $udiciar", 'ere made accordingl"

to the $udgement gien b" this Hon’ble Court in the Second Judges Case 'here the primac"

to appoint the members of the higher $udiciar" lied 'ith the Chief Justice and further the

decision 'as based on the decision of a collegium of Judges( nl" then, the e)ecutie and

legislatie inasion, could be effectiel" controlled and curbed(

II( H5 I6789N5: CN3I8INA; A65N:65N I3 8N:5- 5E5C8I%5

CN-;

It is submitted, that in a modern societ" the indiidual citiBen is sub$ect to controls

imposed b" the e)ecutie in respect of almost eer" aspect of life( he authorit" to

impose most of those controls comes, directl" or indirectl", from the legislature( he

citiBenr" must be able to challenge the legitimac" of e)ecutie action before an

Independent Judiciar"(10

It ma" not be possible to frame an e)haustie definition of 'hat e)ecutie function

means and implies( rdinaril" the e)ecutie po'er connotes the residue of goernmental

functions that remain after legislatie and $udicial functions are ta*en a'a"( he

Constitution of %alston has not indeed recognised the doctrine of 3eparation of 7o'ers in

its absolute rigidit" but the functions of the different parts or branches of the 9oernment

hae been sufficientl" differentiated( he e)ecutie 9oernment, ho'eer, can neer go

10 )ttps.ucl.ac.uconstitution5unitevents6udicial5independence5eventslord5p)illips5transcript.pdf


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against the proisions of the Constitution or of an" la'( As Judiciar" is said to be the

$Sentinel on the -ui *ive%, it shall remain independent and free from political e)ecutie

influence(

he Indian 3upreme Court held that11, !It ma" not be possible to frame an e)haustie and

comprehensie definition of 'hat e)ecutie function means but the e)ecutie, ho'eer, can

neer go against the proisions of the Constitution or of an" la'(#

It is submitted that '(r(t the impugned constitutional amendment 'hich la"s do'n the

procedure of setting up of a commission, tal*s about the inclusion of !t'o eminent persons#(

It has to be seen, that the Chief Justice of %alston, 'ould no' hae an euialent oting right,

as the other 6embers of the NJAC een though the Chief Justice of %alston 'ould be the

Chairman of the NJAC, he has no casting ote, in the eent of a tie(

It is clear, that under the replaced procedure, een if the Chief Justice of %alston, and the t'o

other senior Judges of the 3upreme Court ne)t to the Chief Justice of %alstonD, supported the

appointmentFtransfer of an indiidual, the same could be repulsed, b" an" t'o 6embers of

the NJAC b" appl"ing the po'er of %eto( 5en b" the t'o !eminent persons# 'ho ma" hae

no direct or indirect ne)us 'ith the process of administration of $ustice( It is thereforesubmitted, that the primac" ested 'ith the Chief Justice of %alston had been full" and

completel" eroded(

It is further submitted that there could be a compromise bet'een the 8nion minister in G

charge of la' and those t'o eminent persons to stall the recommendation gien b" the

persons from Judicial &raternit"( 3uch possibilit" 'ould eentuall" enable e)ecutie to

ma*e appointments purel" on political considerations

It has to be borne in mind that the principle of nonarbitrariness which is an essential

attribute of the rule of law is all pervasive throughout the Constitution/ and an adunct of this

principle is the absence of absolute power. In other 'ords, the ie' of the Chief Justice of

India is to be e)pressed in the consultatie process as trul" reflectie of the opinion of the

$udiciar", 'hich means that it must necessaril" hae the element of pluralit" in its formation(

In actual practice, this is ho' the Chief Justice of India does, and is e)pected to function so

that the final opinion e)pressed b" him is not merel" his indiidual opinion, but the collectie

11 Ram 7aa8a apur v. State of $un6a&, 19'': 2 SCR 22


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opinion formed after ta*ing into account the ie's of some other Judges 'ho are traditionall"

associated 'ith this function(

o conclude, it is to be said that the entrustment in the matter of appointment of higher

$udiciar" shall be let in the hands of the $udiciar" itself, 'ho is best euipped to assess the

true 'orth of the candidates for ad$udging their suitabilit"( It has been clear, that the term

!consultation# 'ith reference to Article 124, had been understood as conferring primac" 'ith

the $udiciar"( 8nder Article 124, the 7resident 'as not reuired to merel" !consult# the Chief

Justice of India, but the e)ecutie 'as to accede to the ie' e)pressed b" the Chief Justice of

India( Insofar as the term !Chief Justice of India# is concerned, it has also been understood

to mean, not the indiidual opinion of the Chief Justice of India, but the opinion of the

$udiciar" s"mboliBed through the Chief Justice of India(

After all, !a 0rother has the right to choose a 0rother%.

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