Supreme Court Advocates-on-Record Association v. Union of India

Supreme Court of India · 16 October 2015 · 5 judges

By a 4:1 majority, the Court declared the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 unconstitutional and void, and held that the earlier collegium system of appointing Judges stood revived.

Facts

Articles 124 and 217 required the President to appoint Judges after consultation with the Chief Justice of India and others. The Second Judges case (1993) and the Third Judges case (1998) read this consultation as giving primacy to the judiciary's opinion. Parliament then passed the Constitution (99th Amendment) Act, 2014, which amended Articles 124 and 217 and inserted Articles 124A to 124C, creating a National Judicial Appointments Commission of the Chief Justice of India, the two next senior Judges, the Union Law Minister and two eminent persons. It also enacted the NJAC Act, 2014. Both received assent on 31.12.2014 and came into force on 13.4.2015. The Advocates-on-Record Association and others challenged both as violating the basic structure. A three Judge Bench referred the matters to a larger Bench. The Union of India asked the Court to reconsider the Second and Third Judges cases.

Questions before the Court

Whether the Second and Third Judges cases should be referred to a larger Bench for reconsideration.
Whether the Constitution (99th Amendment) Act, 2014, replacing the consultation process with the NJAC, violates the basic structure, in particular the independence of the judiciary.
Whether the National Judicial Appointments Commission Act, 2014 is valid.
Whether, if the Amendment is struck down, the original provisions and the earlier system of appointment revive.

What the Court held

The prayer for reference to a larger Bench and for reconsideration of the Second and Third Judges cases was rejected.
Independence of the judiciary is a basic feature of the Constitution, and the appointment of Judges is an integral part of it. The 99th Amendment, which vested selection in the NJAC under Article 124A, violated that basic feature and was declared unconstitutional and void. Khehar and Goel, JJ. put this as the NJAC not preserving the primacy of the judiciary.
The NJAC Act, which could not exist without the 99th Amendment and the NJAC, was also declared unconstitutional and void. In addition, Khehar, J. held Sections 5, 6 and 8 ultra vires, Lokur, J. held the Act violated Article 14, and Goel, J. held its provisions impinged on the independence of the judiciary.
With the 99th Amendment struck down, the provisions of the Constitution it had amended revived, and the system of appointment and transfer existing before it (the collegium system) was declared operative. Khehar, J. reasoned that a judicial setting aside is not a legislative repeal; Lokur, J. left that wider question open.
The matter was listed on 3.11.2015 to consider measures, if any, for improving the working of the collegium system.

Why it matters

The Court held that the independence of the judiciary, of which the appointment of Judges is an integral part, is a basic feature that a constitutional amendment cannot alter, and it struck down both the 99th Amendment and the NJAC Act. It declined to reconsider the Second and Third Judges cases, so the collegium system continued, and it held that the provisions replaced by the Amendment revived. It listed the matter to consider improving the collegium system, whose working several opinions criticised.

In the Court's words

Copied from the official judgment; each passage links to its page.

“The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively], 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.”

Page 453 of the judgment

“I hold that the Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional. The other provisions of the Constitution (Ninety-ninth Amendment) Act, 2014 cannot stand by themselves and are therefore also declared unconstitutional.”

Madan B. Lokur, J.Page 892 of the judgment

“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”. I have independently arrived at the conclusion, that 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.”

Jagdish Singh Khehar, J.Page 450 of the judgment

“I would conclude that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained.”

Adarsh Kumar Goel, J.Page 1022 of the judgment

Provisions interpreted

Article 124, Constitution
Article 124A, Constitution
Article 124C, Constitution
Article 217, Constitution
Article 222, Constitution
Article 368, Constitution
Constitution (Ninety-ninth Amendment) Act, 2014
National Judicial Appointments Commission Act, 2014

Case and bench

Parties: Supreme Court Advocates-on-Record Association v. Union of India
Case: Writ Petition (Civil) No. 13 of 2015 (with connected writ petitions and transfer petitions)
Decided: 16 October 2015
Bench: Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, Adarsh Kumar Goel
Opinions: Majority 4:1. Khehar, Lokur, Kurian Joseph and Goel, JJ. wrote separate opinions holding the Amendment unconstitutional; Chelameswar, J. dissented, would have upheld the Amendment and did not examine the NJAC Act. All five Judges signed a common Order of the Court, and separate orders declined the plea for Khehar, J.'s recusal.

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