Supreme Court Advocates-on-Record -Association v. Union of India [2015 SC]

Date of Judgment: 16 October 2015       Bench Strength: 5      No. of pages: 1042

JUDGMENT

The “basic structure” of the Constitution, presently inter alia includes the supremacy of the Constitution, the republican and democratic form of Government, the “federal character” of distribution of powers, secularism, “separation of powers” between the legislature, the executive, and the judiciary, and “independence of the judiciary”. This Court, while carving out each of the above “basic features”, placed reliance on one or more Articles of the Constitution, sometimes in conjunction with the preamble.

The deduction of the concept of “independence of the judiciary” emerged from a collective reading of Articles 12, 36 and 50. It is sometimes not possible, to deduce the concerned “basic structure” from a plain reading of the provisions of the Constitution. And at times, such a deduction is made, from the all-important silences hidden within those Articles. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the “basic structure” with reference to the “independence of the judiciary”, its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 on the other, (read collectively and harmoniously) constitute the basis thereof.

CONCLUSIONS:

Article 124A constitutes the edifice of the Constitution (99^th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A (1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). It is composed of the following:

• the Chief Justice of India, Chairperson, ex officio;
• two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;
• the Union Minister in charge of Law and Justice – Member, ex officio;
• two eminent persons, to be nominated – Members.

If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety.

Clauses (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC. Clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also transfer of Chief Justices and Judges from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”.

Clause (c) of Article 124A (1) is ultra vires the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A (1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”.

Clause (d) of Article 124A (1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution.

In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A (1) are liable to be set aside. The same are accordingly struck down. In view of the striking down of Article 124A (1), the entire Constitution (99^th Amendment) Act, 2014 is liable to be set aside.

I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored.

The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A (1). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside; the same is accordingly hereby struck down.

ORDER OF THE COURT

1. The prayer for reference to a larger Bench and for reconsideration of the         Second and Third Judges cases is rejected.
2.   The Constitution (Ninety-ninth Amendment) Act, 2014 is declared         unconstitutional and void.
3. The National Judicial Appointments Commission Act, 2014, is declared      unconstitutional and void.
4. The system of appointment of Judges to the Supreme Court, and Chief       Justices and Judges to the High Courts; and transfer of Chief Justices and         Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium             system”), is declared to be operative.
5. To consider introduction of appropriate measures, if any, for an improved       working of the “collegium system”, list on 3.11.2015.

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Background

The manner in which Articles 124 and 217 were interpreted by this Court, emerges principally from three-Constitution Bench judgments of this Court, which are now under pointed consideration. The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981.

By a majority of 7:2, a nine-Judge Bench of this Court, in the Second Judges case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993. Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its opinion. A nine-Judge Bench answered the reference unanimously, on 28.10.1998.