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REPLY of Supreme Court on Record Association to
the submissions MADE BY and ON BEHALF OF the
UNION OF INDIA and by Supporting States

NOTE-II
Response to the arguments concerning and
connected with the Doctrine of BASIC STRUCTURE
(A) In the principal argument in the reply on
merits

it

was

contended

by

the

Learned

Attorney General that:

(i)

Parliaments

power

to

amend

the

Constitution is plenary, subject to only one

restriction, i.e. that it cannot abrogate the
basic structure of the Constitution; and
(ii) This (i.e. basic structure) has to be culled
out from specific articles of the Constitution
as originally enacted.
(B) that the Constitution 99th Amendment Act
2014 has a presumption of constitutionality and
the burden is on the petitioners to rebut such
presumption on the basis of concrete facts to be
brought on record, and not on surmises and
speculation.

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(C) Appointment of judges may be a part but it is
not an integral part of the independence of the
Judiciary

(D) What

comprises

or

constitutes

BASIC

STRUCTURE it has been the case of the Union of

India and States supporting it (relying (amongst
at other decisions) on the Constitution Bench
decision in Bhimsinghji that it is only when
conditions are such as expressed by Justice
Krishna Iyer (in that case) that the doctrine can
be invoked by a party challenging the validity of a
Constitutional amendment.

(E) that

although

the

independence

of

the

judiciary, may be a part of the basic structure of

the Constitution and the appointment of judges is
a part of it (it is not the dominant part):, when
adjudicating as to whether there has been a
violation of the basic structure the Court must
take into account the system of checks and
balances and the concept of democracy enshrined
in the Constitution.

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The aforesaid submissions and contentions are briefly
dealt with below:

Re: (A)

As

to

Parliaments

power

to

amend

the

Constitution: the most authoritative recent statement

of law is the unanimous judgment of the nine-Judge
Bench in I.R.Coelho (Dead) By Lrs vs. State Of Tamil
Nadu & Ors: 2007 (2) SCC 1 in which the previous
judgments of the Court in Indira Gandhi (1975) and in
Minerva Mills (1980)

have been referred to and

affirmed and where it is stated that the power to

amend the Constitution is not plenary.

In Indira Gandhi (1975 Supp. 1 SCC 1 at para 66)

(page 252) (after recording that in Keshavanand Bharti

the list of essential features which formed the basic
structure were merely illustrative) proceeded to state For determining whether a particular feature of
the Constitution is a part of its basic structure,
one has perforce to examine in each individual
case the place of the particular feature in the

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scheme of our Constitution, its object and
purpose, and the consequences of its denial on the
integrity of the Constitution as a fundamental
instrument of countrys governance.
But it is
needless for the purpose of these appeals to
ransack every nook and cranny of the Constitution
to discover the bricks of the basic structure.
Those that are enumerated in the majority
judgments are massive enough to cover the
requirements of Shri Shanti Bhushans challenge.
-

In Coelho (9J) 2007 (2) SCC 1 at para 147

(page 109) it is stated that it is the invasion of

fundamental freedoms (by the State) which attracts the
basic structure doctrine. And in para 149 (page 110) it
is stated that it is for the State to justify the degree of
invasion.

As to the submission (of the learned A.G.) that the

basic structure has to be culled out from specific

Articles of the Constitution as originally enacted this is
plainly erroneous. Thus for instance the rule of law
(on which the entire Constitution is based) as
repeatedly held in innumerable judgments of this
Honble Court - is not mentioned in any specific Article
of the Constitution; yet it has been repeatedly held that

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it is part of the basic structure of the Constitution.1
-

So also the words federal, federalism (or its

variants) are not to be found in any specific Article
of the Constitution, yet it has been authoritatively
held that it is a part of the basic feature of the
Constitution: (S.R. Bommai page 1994 (3) SCC 1
(9J) at paras 14, 96, 434(a); Keshav Singh 1965
(1)

SCR

415

at

444-445(7J);

Keshavananda

Bharti 1973 (4) SCC 225 (13 J) C.J. Sikri para 292
J. Shelat and Grover para 582

Similarly

free

and

fair

elections

are

not

guaranteed or even mentioned in any provision of

1

(a) Indira Gandhi vs. Raj Narain (5J) 1975 (Supp) SCC 1 Justice Khanna para205; Chief Justice Ray para-59; Justice Chandrachud para-681.(b) P.
Sambarmuthry vs. State of A.P. (5J) - 1987 (1) SCC 362 para 4, page 369
4.It is obvious from what we have stated above that is power of modifying or
annulling an order of the Administrative Tribunal conferred on the State
Government under the proviso to clause (5) is violative of the rule of law
which is clearly a basic and essential feature of the Constitution.
(c)
K.T. Plantation (P) Ltd. vs. State of Karnataka (5J) 2011 (9) SCC 1 para 211 at
page 60
211. The rule of law as a concept finds no place in our Constitution, but has
been characterised as a basic feature of our Constitution which cannot be
abrogated or destroyed even by Parliament and in fact binds Parliament. In
Kesavandanda Bharti case, this Court enunciated the rule of law as one of the
most important aspects of the doctrine of basic structure. The rule of law
affirms Parliaments supremacy while at the same time denying it sovereignty
over the Constitution.
d)
High Court of Judicature v. Shirish K.R. Patil 1997(6)SCC 339 para13
(e)
Madras Bar Assn. Vs. Union of India 2014 (10) SCC 1 para 76 at page 119
76. In the context of the foregoing submissions advanced at the hands of the
learned counsel for the petitioners, it is essential for us to examine the exact
contours of judicial review in the framework and scheme of the concepts of
rule of law and separation of powers, which have been held to constitute
the basic structure of the Constitution. And also, the essential ingredients of
an independent adjudicatory process. It is, therefore, that we would travel the
ladder of history and law, to determine the exact scope of the judicial review
which constitutes the basic structure of the Constitution. This would lead us
to unravel the salient ingredients of an independent adjudicatory process.
Based thereon, we will record our conclusions.

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the Constitution (nor in Part XV ELECTIONS) and
yet this has been held to a basic feature of the
Constitution (Kihoto Hollohan vs Zachillhu and
Others: 1992 Supl. (2) SCC 651 (5J para 24(G)
page 675 and p-712 to 714; 2 and Indira Gandhi
vs. Raj Narains 1975 (Supp) SCC 1 (5J), (paras
198, 199, 327).

-Independence of the Judiciary also (as a concept) is

nowhere mentioned in any specific Article of the
Constitution) and yet it has been repeatedly held
to be a part of the basic structure of the
Constitution (see for instance see Union of India
vs. Madras Bar Association - 2010(11) SCC 1 (5J)
at page 37, paras 50-52 (5J)

2 In Kihoto it was also held that a constitutional amendment violates basic

structure even where it does so in effect (1992 Supp. 2 SCC 651) at page 691
(para 61 and 62). In S.R. Bommai 1994 (3) SCC 1 (9J) doctrine of basic
structure applied even when there was no constitutional amendment by only a
policy of Government in question.

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Re: B

That the
Constitution 99th
Amendment Act
2014 has a
presumption of
constitutionality

of

It was then contended that there is a presumption

constitutionality

with

regard

to

constitutional

amendments and reliance is placed on a bald statement

from the common judgment of Justices Hegde and
Mukherjee

(in

Keshvananda

Bharatis

case)

which

contains the following sentence: (para 661) The

presumption of the Constitutional validity of a statute
will also apply to constitutional amendments!

In the first place this contention and the reliance

on para 661 of the judgment of Hegde and Mukherjee

J. (in Keshvananda Bharati 1973) is in contrast to the
later unanimous judgment of a Bench of 9 Judges in
Coelho (2007 92) SCC page 1) at para 149 p-110
where it is stated as follows:
.....The basic structure doctrine requires the
State to justify the degree of invasion of
fundamental rights. Parliament is presumed to
legislate compatibly with the fundamental rights
and this is where judicial review comes in.
Greater the invasion into essential freedoms,
greater is the need for justification and
determination by Court whether invasion was
necessary and if so, to what extent. The degree
of invasion is for the Court to decide.
Compatibility is one of the species of judicial

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review which is premised on compatibility with
rights regarded as fundamental. The power to
grant immunity, at will, on fictional basis, without
full judicial review, will nullify the entire basic
structure doctrine.....
-

This contention about presumption in the current

case pales into insignificance as to on whom the burden

lies (presumptions are for purposes of ascertaining on
whom the burden lies). Because in the present case it
is not disputed by the Union of India that the
independence of the judiciary is a part of the basic
structure of the constitution; the only contest is
whether the Constitutional amendment under challenge
adversely affects the independence of the judiciary
(one of the essential features of the Constitution).

In several decisions of this Honble Court where

questions have arisen (subsequent to Keshvananda

Bharati 1973) noted in the footnote (fn) on the next
page - as to whether a particular provision of a
constitutional

amendment

(or

the

constitutional

amendment as a whole) violates, damages or alters the

basic structure or basic feature of the Constitution, in
none

of

them

has

the

presumption

(set

out

in

paragraph 661 of the judgment of Justice Hegde and

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Mukherjee in Keshvananda Bharati) ever been invoked
nor even mentioned (see footnotes (1) and (2) below);
also when the constitutional amendment was struck
down; (and footnotes (3), (4), (5), (6), (7), (8) and (9)
below,3

when

the

constitutional

amendment

was

ultimately upheld.

3 CONSTITUTIONAL AMENDMENT STRUCK DOWN :1.Indira

Nehru Gandhi Vs. Raj Narayan (1975) Supp. SCC 1. Held, Article
329-A (4) inserted by 39th Constitutional Amendment Act struck
down as it violated basic structure of Constitution.
2. Minerva Mills Ltd. and Ors. Vs. Union of India (UOI) and Ors.
(1980) 3 SCC 625 struck down Article 368(4) and (5);

CONSTITUTIONAL AMENDMENT HELD VALID

3. Sankari Prasad Singh Deo v. Union of India and State of Bihar

[1952] 1 SCR 89. The validity of the Constitution (First Amendment) Act,
1950 was challenged and held valid.
4. Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933. The Constitution
(Seventeenth Amendment) Act, 1964: Held Valid: [the decision in Sajjan
Singh was overruled by the 11 Judge Bench in Golaknath (1969); but
Golaknath was itself overruled in Keshavanand Bharti (1973);
5. Raghunathrao Ganpatrao Vs. Union of India (UOI) 1994 Supp (1)
SCC 191- The constitutional validity of the Constitution (Twenty-sixth
Amendment) Act of 1971 was challenged: Held Valid.
6. Glanrock Estate (P) Ltd. Vs. The State of Tamil Nadu (2010) 10 SCC
96 - The Constitution (Thirty-Fourth Amendment) Act, 1974 was
challenged: Held Valid.
7. Subrata Acharjee and Ors. Vs. Union of India and Anr. (2002) 2
SCC 725: Validity of the Constitution (72nd Amendment) Act, 1992
challenged - Held Valid
8. Ashok Kumar Thakur Vs. U.O.I. (2008) 6 SCC 1: Constitution (NinetyThird) Amendment Act, 2005 was challenged - Held Valid.
9. Pramati Educational and Cultural Trust and Ors. Vs. Union of
India (UOI) and Ors. (2014) 8 SCC 1 held valid.

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Re: C - Appointment of Judges may be a part of
independence of the Judiciary but it is
not an integral part.
-

Is the appointment of Judges in the Higher

Judiciary an integral part of the Independence of the

Judiciary. It is submitted it is and this has been so
held:
-

In the following decisions of the Supreme Court of

India, viz.
(i)

insulating the Judiciary from executive

or legislative control (Union of India vs. Sankal

Chand Himatlal Sheth & Anr: 1977 (4) SCC 193
(5J) at page 236-237 para 50) (Bhagwati J.)
concurring held:
The framers of our Constitution were aware
of these constitutional developments in
England and they were conscious of our
great tradition of judicial independence and
impartiality and they realised that the need
for securing the independence of the
judiciary was even greater under our
Constitution than it was in England, because
ours is a federal or quasi-federal Constitution
which confers fundamental rights, enacts
other constitutional limitations and arms the
Supreme Court and the High Court with the
power of judicial review and consequently
the Union of India and the States would
become the largest single litigants before the
Supreme Court and the High Court. Justice
as pointed out by this Court in Shamsher
Singh v. State of Punjab (1975 (1) SCR 814,

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876, 1974 (2) SCC 831), can become
fearless and free only if institutional
immunity and autonomy are guaranteed.
The Constitution-makers, therefore, enacted
several provisions designed to secure the
independence of the superior judiciary by
insulating it from executive or legislative
control.
I shall briefly refer to these
provisions to show how great was the
anxiety of the constitution-makers to ensure
the independence of the superior judiciary
and with what meticulous care they made
provisions to that end.
(ii)

inextricably linked and connected with

the constitutional process of appointment of

Judges

of

the

Higher

Judiciary,

the

Independence of the Judiciary is a basic

feature of our constitution ..... (Supreme
Court Advocates-on-Record Association vs. Union
of India: 1993 (4) SCC 441 (9 Judges) Pandian J
at page 522 and Verma J for himself anf four of
his colleagues para 462; Justice Kuldip Singh in
his judgment said (page 649 para 335):
335. Then the question which comes up for
consideration is, can there be an independent
judiciary when the power of appointment of
Judges vests in the executive? To say yes,
would be illogical. The independence of the
judiciary is inextricably linked and connected
with
the
constitutional
process
of
appointment of judges of the higher judiciary.
Independence of Judiciary is the basic
feature of our Constitution and if it means

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what we have discussed above, then the
Framers of the Constitution could have never
intended to give this power to the executive.
Even otherwise the Governments Central or
the State are parties before the Courts in
large number of cases.
(iii) .... Independence of the Judiciary could be
preserved only if primacy in the above causes
rested with the Judiciary itself within a minimal
involvement of the Executive and the Legislature.
It needs to be highlighted that Independence of
Judges of the High Courts and the Supreme Court
was considered as salient to ensure due exercise
of the power of Judicial Review Madras Bar
Association vs. UOI 2014 (10) SCC 1 (5J) para
104, 105.

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Re D:

As what comprises or constitutes BASIC

STRUCTURE and when it is infringed.

As to when the doctrine of basic structure gets

attracted the most authoritative test has been laid down the
in the Summary at the end of Keshavanad Bharti 1973.

The signed order of 9 Judge by out of 13 Judges set

out below reads.

In 1973 (4) SCC 225 at page 1007 - The view by

the

majority

in

these

writ

petitions

is

as

follows:-

1. Golak Naths case is over-ruled;

2. Article 368 does not enable Parliament
to alter the basic structure or framework of
the Constitution;
3. The
Constitution
(Twenty-fourth
Amendment) Act, 1971 is valid;
4. Section 2(a) and (b) of the Constitution
(Twenty-fifth Amendment) Act, 1971 is valid;
5. The first part of section 3 of the
Constitution (Twenty-fifth Amendment) Act,
1971 is valid. The second part, namely, and
no law containing a declaration that it is for
giving effect to such policy shall be called in
question in any court on the ground that it
does not give effect to such policy is invalid;
6. The
Constitution
(Twenty-ninth
Amendment) Act, 1971 is valid.
The Constitution Bench will determine the
validity of the Constitution (Twenty-sixth
Amendment) Act, 1971 in accordance with
law.

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The cases are remitted to the Constitution
Bench for disposal in accordance with law.
There will be no order as to costs incurred up
to this stage.
Sd/- S.M. Sikri C.J.
Sd/- J.M. Shelat J.
Sd/- K.S. Hegde J.
Sd/- A.N. Grover J.
Sd/- P. Jaganmohan Reddy J.
Sd/- D.G. Palekar J
Sd/- H.R. Khanna J.
Sd/- A.K. Mukerjee J.
Sd/- Y.V. Chandrachud J.
Dated April 24, 1973
From summary of conclusions recorded at the end of
the judgment of each of the above named NINE
JUDGES as recorded by the Judges themselves: it has
been stated:
(1)

Sikri and C.J. (page 405) para 475

The
expression
amendment
of
this
Constitution does not enable Parliament to
abrogate or take away fundamental rights or to
completely change the fundamental features of
the Constitution so as to destroy its identity.
Within these limits Parliament can amend every
article.

(2)

Shelat J. Grover J. (page 462) para 608

Though the power to amend cannot be
narrowly construed and extends to all the
Articles it is not unlimited so as to include the
power to abrogate or change the identity.

(3)

(4)

K.S. Hegde J. and A.K. Mukerjee J. (512) para

744
Though the power to amend the Constitution
under Article 368 is a very wide power, it does
not yet include the power to destroy or
emasculate
the
basic
elements
or
the
fundamental features of the Constitution.
Jagmohan Reddy J. (P-666 to 667) para 1212

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The word amendment in Article 368 does not
include repeal. Parliament could amend Article
368 and Article 13 and also all the fundamental
rights and though the power of amendment is
wide, it is not wide enough to totally abrogate or
emasculate or damage any of the fundamental
rights or the essential elements in the basic
structure of the Constitution or of destroying the
identity of the Constitution.
(5)

Palekar J. Palekar J. signed the Summary (to

show what was decided by the majority)
although he did not subscribe to the doctrine of
basic structure being inherent in Article 368.

(6)

Khanna J (Page 824) para 1537

The power of amendment under Article 368
does not include the power to abrogate the
Constitution nor does it include the power to
alter the basic structure or framework of the
Constitution.

(7)

Chandrachud J who signed the Summary (to

show what described by the majority) although
he did not subscribe to the doctrine of basic
structure being inherent in Article 368.

Thus 9 out of 13 Judges have authoritatively

held that:
Article 368 does not enable Parliament
to alter the basic structure or framework
of the Constitution.

The summary of the Order of 9 Judges in

Keshavanad Bharti has been itself expressly mentioned

in Minerva Mills (5J) 1980 3 SCC 625 para 12 and in

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Raghunathrao Ganpatrao 1994 Supp.1 SCC 191
(5J) in para 48 page 210 incorporated: the entire
summary has been quoted and reproduced.

Conclusion:

As to what constitutes a violation of the basic

structure is when the constitutional amendment

alters (i.e. changes) the basic structure or framework
of the Constitution this is the view of 9 (out of 13
Judges) in Keshavanad and ought to be followed.

The Attorney-General has canvassed for a more

expensive

invasion

constitutional

to

amendment

justify
of

invalidation
the

basic

of

structure

doctrine.

He

cited

the

judgment

of

Krishna

Iyer

in

Bhimsinghji case 1981 (1) SCC 166 at page 186 (para

2) reading:
There, what is a betrayal of the basic feature is
not mere violation of Article 14 but a shocking,

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unconscionable or unscrupulous travesty of the
quintessence of equal justice. If a legislation does
go that far it shakes the democratic foundation
and must suffer the death penalty.

But in actual fact what had been struck down in

Bhimsinghji was a seemingly innocuous provision in the

Urban land Ceiling Act (viz. S.27(1) which imposed a
restriction on the owner of urban land with building
even if within the ceiling area

to transfer the same:

viz. this was said to be arbitrary! Even if so, there was

nothing shocking or unconscionable about it, nor
could this be described a travesty of equal justice!!

Supreme

Importance

of

Independence

of

Judiciary has been emphasized in the following

decision:

In I.R. Coelho vs. State of Tamil Nadu 2007 (2)

SCC 1 (9J) at para 65 to 67 at page 87, the Court

unanimously held:
65. Alexander Hamilton in The Federalist No.78,
remarks on the importance of the independence of
the judiciary to preserve the separation of powers
and the rights of the people:

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The complete independence of the courts of
justice is peculiarly essential in a limited
Constitution.
By a limited Constitution, I
understand one which contains certain
specified exceptions to the legislative
authority; such, for instance, that it shall
pass no bills of attainder, no ex post facto
laws, and the like. Limitations of this kind
can be preserved in practice in no other way
than through the medium of courts of justice,
whose duty it must be to declare all acts
contrary to the manifest tenor of the
Constitution void.
Without this, all the
reservations of particular rights or privileges
would amount to nothing (434)
66. Montesquieu finds that that tyranny pervades
when there is no separation of powers:
There would be an end of everything, were
the same man or same body, whether of the
nobles or the people, to exercise those three
powers, that of enacting laws, that of
executing the public resolutions, and of trying
the causes of individuals.
67. The Supreme Court has long held that the
separation of powers is part of the basic structure
of the Constitution.
Even before the basic
structure doctrine became part of constitutional
law, the importance of the separation of powers
on our system of governance was recognized by
this Court in Special Reference No.1 of 1964.4

There is a the closest link between Judicial

Review

and

submitted

Independence

that since

of

unlimited

Judiciary5.
Judicial

It

is

Review

is

4 AIR 1965 SC 745: (1965) 1 SCR 413-445

5 Madras Bar Association vs. UOI 2014 (10) SCC 1
(5J) at para 104, 105.

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admittedly an essential part of the basic structure of
the Constitution

one cannot possibly countenance

Judicial Independence operating only in a limited

sphere Judicial Independence has necessarily to be as
extensive as unlimited Judicial Review.

-In L. Chandra Kumar vs. UOI 1997 (3) SCC 261 (7J)
at para 78 (page 301) = AIR 1997 SC 1125 (7J) para
78 page 1150, the Constitution Bench said:
78. The legitimacy of the power of Courts within
constitutional democracies to review legislative
action has been questioned since the time it was
first conceived. The Constitution of India, being
alive to such criticism, has, while conferring such
power 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. 6
These
attempts were directed at ensuring that the
judiciary would be capable of effectively
discharging its wide powers of judicial review.
While the Constitution confers the power to strike
down laws upon the High Courts and the Supreme
Court, it also contains elaborate provisions dealing
6 See Chapter VII, The Judiciary and the Social
Revolution in Granville Austin, The Indian Constitution:
Cornerstone of a Nation Oxford University Press, 1972;
the chapter includes exhaustive reference to the
relevant preparatory works and debates in the
Constituent Assembly.

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with the tenure, salaries, allowances, retirement
age of Judges as well as the mechanism for
selecting Judges to the superior Courts.
The
inclusion of such elaborate provisions appears to
have been occasioned by the belief that, armed by
such provisions, the superior Courts would be
insulated from any executive or legislative
attempts to interfere with the making of their
decisions. The Judges of the superior Courts have
been entrusted with the task of upholding the
Constitution and to this end, have been conferred
the power to interpret it. It is they who have to
ensure that the balance of power envisaged by the
Constitution is maintained and that the legislature
and the executive do not, in the discharge of their
functions, transgress constitutional limitations. It
is equally their duty to oversee that the judicial
decisons rendered by those who man the
subordinate Courts and tribunals do not fall foul of
strict standards of legal correctness and judicial
independence.
The constitutional safeguards
which ensure the independence of the Judges of
the superior judiciary are not available to the
Judges of the subordinate judiciary or to those
who
man
Tribunals
created
by
ordinary
legislations. Consequently, Judges of the latter
category can never be considered full and effective
substitutes for the superior judiciary in discharging
the function of constitutional interpretation. We,
therefore, hold that the power of judicial review
over legislative action vested in the High Courts
under Article 226 and in this Court under Article
32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its
basic structure. Ordinarily, therefore, the power
of High Courts and the Supreme Court to test the
constitutional validity of legislations can never be
ousted or excluded.

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Re (E) -It is then said that the appointment of
Judges though it may be a part of the
concept of the independence of the
judiciary (part of the basic structure) is
not a dominant part of it and therefore
there is no violation of the basic
structure doctrine by the constitutional
amendment challenged in this case.

This again is erroneous because: The NJAC (as

with the collegium before it) is for appointment of

Judges, not for rejecting proposals for appointment.

On the Attorney Generals own submission an

interpretation of the provisions of the constitutional

amendment

(along

with

the

statutory

provisions)

constitute a fetter on the powers of the Commission

(NJAC)

not

provided

for

in

the

constitutional

amendment itself - to make recommendations after

observing sections 5 and 6 of the NJAC Act, i.e. a
negative vote of any two of the six members of the
Commission, prevents a recommendation being made.
It clearly shows that the existing power of the Higher
Judiciary (collegium) to recommend - a particular
advocate as a Judge of the High Court or a particular
High Court Judge, a Judge of the Supreme Court

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cannot any longer be exercised under the new
scheme: in view of the composition of the Commission
(NJAC): as, for instance, even when three seniormost
judges of the Supreme Court including the Chief Justice
of India decide to recommend a person as judge they
cannot do so; unless they can secure the agreement
from

fourth

non

Judge

member

of

the

Commission:

The

Law

Minister

alongwith

one

of

eminent

persons (or two eminent persons acting together) can

always

veto

recommendation

(of

the

first

seniormost Judges of the Supreme Court including CJI)

- even when the Law Minister either concurs or even
abstain, which clearly reveals that the existing power of
the Higher judiciary to recommend appointments of
Judges (by a majority of member of the collegium) is
taken away under the new scheme. (i.e. the scheme
envisaged in the constitutional amendment read with
the NJAC Act).

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Besides, one of the essential requirements of
independence

of

the

judiciary, as

it

has

almost

uniformly prevailed since its inception is that the

initiation of a name for Judge of the High Court has to
come from Chief Justice of the High Court (and cleared
by the CJI); under the collegium the name of a High
Court Judge for elevation to the Supreme Court has to
be cleared by 4 out of 5 members of the collegiums:
have even if the 3 Judicial members of the Commission
unanimously propose the name of the a person that
cannot form the basis for a recommendation by the
Commission unless a non-Judge member agrees.

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Re: E
Appointment of Judges though a part of
the independence of the judiciary (basic
structure) is not the dominant part.

Regarding the contention of the Attorney General

that although independence of the judiciary is part of

the

basic

structure

of

the

constitution

and

the

appointment of Judges is a part of it, it is not the

dominant part and therefore when adjudicating a
charge of violation of basic structure the Court must
taken into account the system of checks and balances
and

the

concept

of

democracy

enshrined

in

the

Constitution. Incorrect.

It is submitted that this is erroneous because it is

an attempt to read down aspects of basic structure

with reference to other aspects of basic structure; a
particular constitutional amendment may well conform
to the scheme of checks and balances or with the
concept of democracy, and yet fall foul of a separate
and distinct concept warranted by the doctrine of
separation of powers viz. the independence of the
judiciary.

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It impossible (repeat impossible) for any nonJudge member (save and except a practising lawyer of
standing) to effectively name or recommend on the
basis of suitability (including competence) the name of
a lawyer fit to adjudicate cases as Judge either in the
High Court or in the Supreme Court - since howsoever
eminent that person may he could never be (or
expected to be) aware of the performance of the
advocate (or the Judge of a High Court) any
recommendation by such non-judicial member would
be more likely to be based on considerations other than
ability and competence; and the Law Minister as a
representative of the Government would be more
inclined to pick on one whom the political party forming
the Government insists upon.

Besides, laying down criteria of suitability

extremely important - mentioned in Section 6(1) (in

the NJAC Act) the Judges have no dominant role they
are almost the only persons who are likely to know and
ought to know, - the power to lay down criteria is now
vested in a collective body where Judges do not
predominate.