Fali Nariman Submission 2

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SOME PRELIMINARY OBSERVATIONS
PART-I
THE NATION WANTS IT!
Legal points apart, the single most persistent and
evocative argument in the present case has been that
the NATION WANTS IT! I may be permitted (somewhat
impertinently) to ask which NATION? The NATION of the
haves OR the Nation-of-the-have-nots? (we have an
abundance of the one and a super-abundance of the
other);
the
NATION
of
the
rich,
prosperous
influential? (whose members are fast increasing).
and
Or
the Nation of the poor and needy (whose condition,

hopes and expectations have not markedly improved
over the decades.
Just as Justice Chinnappa Reddy had said in Sanjiv
Coke1 (speaking for the Constitution Bench): no one
may speak for Parliament and Parliament is never
before the Court, I would respectfully suggest that no
one may speak (or claim to speak) on behalf of the
NATION; and the NATION is never before the Court.
In respect of a constitutional amendment: even
Parliament cannot speak or claim to speak on behalf of
the people because:
(i)the power of Parliament as a constituent constituted
body to make a constitutional amendment is no
longer an unlimited power but a limited power
(limited by the basic structure doctrine); first
enunciated in Keshavand Bharti (1973); and
(ii)
our Constitution has made no provision for a

plebiscite or does not provide for a referendum as
1 1983 (1) SCC 147 (5J) at page 172 (part of

paragraph 25).
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a means of passing or approving of a
constitutional amendment.
How then is it to be is ascertained as to what THE
NATION WANTS? Learned pundits around the world
have recommended the institution of a plebiscite or
Referendum which is however tentative, never foolproof, nor really representative of the collective views
of the people, but then no one has yet devised a
reliable method of ascertaining the wishes of the
people.
In the present case what is at issue at the start (and at

the end) is the PRIMACY OF THE JUDICIARY: a concept
perennially
anathema
to
the
peoples
elected
representatives in Parliament and in State Legislatures

as shown below:
(a)
Soon after the decision in GOLAKNATH (1967 6:5

(Bench
of
11
Judges)
which
declared
constitutional amendment to be law in Part III,

and therefore subject to the constraints in the
Fundamental Rights Chapter, Parliament as a
constituent constituted body (a phrase invented
by Justice Hidyatullah and mentioned in his
concurring
judgment
in
GOLAKNATH:
for
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differentiating between the Constituent Assembly
that drafted the Constitution and the constituent
body mentioned in Article 368) Parliament as a
constituent body got passed the Constitution 25 th
Amendment Act 1971 reading as below:
Article 31C (as inserted with effect from

20.4.1972)
3.
Insertion of new
article 31C.
After article 31B of the Constitution, the
following Article shall be inserted, namely:"31C. Saving of laws giving effect to certain
directive principle:Notwithstanding anything contained in Article
13, no law giving effect to the policy of the
State towards securing the principles
specified in clause (b) or clause (c) of Article
39 shall be deemed to be void on the
ground that it is inconsistent with, or takes
away or abridges any of the rights conferred
by article 14, Article 19 or Article 31; 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:
Provided that where such law is made by the
Legislature of a State, the provisions of this
article shall not apply thereto unless such
law, having
been
reserved
for
the
consideration of the President, has received
his assent."
In Keshavananda Bharti Sripadgalvaru v. State of
Kerala
(Bench
of
13
Judges
constituted
to
reconsider Golaknath) 1973 Supp. SCR 1: 1973
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(4) SCC 225: AIR 1973 SC 1461, the Supreme
Court overruled GOLAKNATH (10:1) but held (6:5)
part of Article 31C (shown) in italics above as
invalid and unconstitutional on the basis of the
doctrine of basic structure [judicial review being
invoked as part of the basic structure of the
Constitution]
(b)
Over a year later, On 12th June 1975, the Allahabad

High Court held in Raj Narains Election Petition
challenging the election (to the Lok Sabha) of Mrs.
Indira Gandhi (later Prime Minister) that the
petition had to succeed on merits.
Mrs. Gandhi
filed an appeal from the decision to the Supreme

Court of India.
Pending this appeal. Parliament
then passed (hurried through in three days in early

August) the Constitution 39th Amendment Act
1975.
The
amendment
introduced
sought
to
make
special provision as to elections to Parliament inter

alia in the case of a Prime Minister and provided
that where any person has been appointed as
Prime Minister while an election petition of his
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election to either House of Parliament is pending,
such election petition would abate upon such
person being appointed as Prime Minister, and
that no law made by Parliament before the
commencement
of
the
Constitution
39th
Amendment Act, in so far it is related to election

petitions (inter alia against the Prime Minister)
would apply or be deemed ever to have applied to
or in relation to the election of that person, and
that such election shall not to be deemed to be
void or ever to have become void on any ground
on which such election could be declared to be
void, and would continue to be valid in all
respects; it further provided that any finding by
any Court would itself be deemed to be void and
of no effect; and that any pending appeal before
the Supreme Court of India (by any such person)
would be disposed of in conformity with the
provisions of the Constitution 39th Amendment Act.
The relevant part of Article 329A where the new

provision was inserted validating inter alia the
election of Mrs. Indira Gandhi (an election set
aside by the High Court of Allahabad) was
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declared by the Supreme Court of India to be
unconstitutional: following the majority view in the
Bench consisting of 13 Judges: Indira Gandhi vs.
Raj Narain reported in 1975 Suppl. SCC 1 was the
first case implementing the Basic Structure theory.
The
Court
criticised
the
Constitution
39 th
Amendment Act, as a negation of the Rule of

Law, anti-democratic, lawless and one which
denied equality before the law.
The
Comment
on
the
Constitution
39 th
Amemdment of Justice Ruma Pal who has

updated M.P. Jains Indian Constitutional Law, 6 th
Edition (2013) is relevant.
The comment reads:
(pages 2408-2409 Vol. II)

No one can imagine a greater misuse of the
power to amend the constitution than what is
represented by the XXXIX Amendment when
just to validate the election of one person,
the Constitution was drastically amended.
The Supreme Court rendered a yeoman
service to the Constitution by vetoing such a
distorted law.
The case provides sterling testimony to the
worth of the doctrine that the fundamental
features of the Constitution could not be
amended. There always lurks the danger
that the ruling party with the help of its
majority in the two Houses of Parliament may
introduce distortions in the Constitution to
suit its own political agenda. It may be
remembered that to keep herself in power.
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Prime Minister Indira Gandhi even imposed
the emergency on the country in 1975.
Note:-
(c)
The Constitutional amendment along with the

law challenged in these petitions are an
instance of one such distortion.
As an answer of Parliament to the striking down of

the
material
Constitution,
parts
of
Parliament
Article
329A
amended
of
the
(by
an
overwhelming majority of its members) Article 368

of
the
Constitution
by
the
Constitution
42 nd
Amendment Act, 1976, by adding Clauses (4) and

(5) to Article 368 which read as follows:
[(4) No amendment of this Constitution
(including the provisions of Part III) made or
purporting to have been made under this
article [whether before or after the
commencement of section 55 of the
Constitution (Forty-second Amendment) Act,
1976] shall be called in question in any court
on any ground.]
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[(5) For the removal of doubts, it is hereby

declared that there shall be no limitation
whatever on the constituent power of
Parliament to amend by way of addition,
2 Ins. By the Constitution (Forty-second Amendment)

Act, 1976, sec.55 (w.e.f. 3.1.1977). clauses (4) and
(5) which were inserted by section 55 of the
Constitution (Forty-second Amendment) Act, 1976 have
been declared invalid by the Supreme Court in Minerva
Mills Ltd. v. Union of India, 1980 (2) SCC 591.
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variation or repeal the provisions of this
Constitution under this article.]
The insertion of Clause (4) and (5) in Article 368

was challenged, and Clauses (4) and (5) were held
to be invalid and unconstitutional by a unanimous
decision of a Bench of 5 Judges of the Supreme
Court of India in Minerva Mills (1980 (3) SCC 625). 3
Justice Chandrachud and Justice Bhagwati were at
one in striking down this part of the Constitution
42nd
Amendment
Act,
as
invalid
and
unconstitutional.
(d)Since there had been a challenge to Clauses (4) and

(5)
of
Article
368
of
the
Constitution
42nd
Amendment Act, 1976 whilst this challenge was

pending
Parliament
attempted
another
stratagem to avoid what was regarded in political

3
Minerva Mills 1980 (3) SCC 625 para 17 and 88 Chandrachud J.:
17. Since the constitution had conferred a limited amending power on
the Parliament, the Parliament cannot under the exercise of that
limited power enlarge that very power into an absolute power. Indeed,
a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power cannot be
destroyed. In other words, Parliament cannot, under Article 368,
expand its amending power so as to acquire for itself the right to
repeal or abrogate the Constitution or to destroy its basic and essential
features.
Bhagwati J.: 88. Therefore, after the decisions in Kesavananda
Bharati case and Indira Gandhi case, there was no doubt at all that the
amendatory power of Parliament was limited and it was not competent
to Parliament to alter the basic structure of the Constitution..
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circles as judicial interference in the working of
Parliament.
The Lok Sabha passed again by an
overwhelming
majority;
the
Constitution
45 th
Amendment, Bill No. 88 of 1978 which for the first

(and hopefully, for the last time) sought to adopt
the route of a referendum to obviate application of
the Basic Structure Doctrine. It declared inter alia
in the Proviso to Article 368(2) that a law
compromising the independence of the judiciary
which would require a ratification by one-half of
the
States
would
become
unchallengeable
if
adopted by simple majority vote (51 per cent) in a

referendum. For the first time the Government of
the
day
had
Independence
revealed
of
the
its
hand
Judiciary
that
the
may
be
compromised or at least an attempt would be

made.
(e)
Fortunately for democracy, the Rule of law and the

Independence of Judiciary, the Constitution 45 th
Amendment Bill No.88/1978 Clause 45 of the Bill
(relating to Article 368) failed to pass but not
because Parliament negatived the amendment.
On the contrary, the Lok Sabha passed the 45 th
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Constitution Amendment Bill by an overwhelming
majority of members, but in the Rajya Sabha only
a bare majority supported the amendment not
the two-thirds required to pass a Constitutional
amendment. The propounder of the Bill (it was not
the same political party that had brought in the
Emergency of June 1975 but this time it was the
Janta Party (which had been protesting against the
Emergency) and members of whose party had
been confined in preventive detention whilst it
lasted they had been swept into power on an
anti-Indira Gandhi wave at the elections of March
1977 and the first thing they did to celebrate was
to attack the Independence of the Judiciary as a
concept! The Government of the day tried to get
rid of the concept of Independence of the
Judiciary by submitting to a referendum that
would validate compromises to the independence
of the Judiciary which when passed by a 51% vote
at the referendum would become un-impeachable
as a constitutional amendment. Fortunately it was
not to be.
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(f) Attempts to control the judiciary continue
unabated in recent times as well as stated herein
below:
(i)
On 10.7.2013 two separate judgments of the

Supreme Court of India were handed down: viz.
In Lilly Thomas vs. Union of India this Honble

Court held invalid and unconstitutional Section
8(4) of the Representation of People Act,
1951.4
As
consequence,
Members
of
Parliament and Members of State Legislatures

no longer enjoyed the privilege for long
conferred on them that is to say MPs and
MLAs when they stood convicted of offences
involving imprisonment for terms of 2 years
and above they were now placed (by the
judgment of 10.7.2013) in the same position
as
all
other
Parliament
or
citizens;
of
each
State
member
of
Legislature
on
conviction became disqualified to become

members
and
if
members
vacated
their
respective seats, even though under section

8(4) of the Representation of People Act (as
4 2013 (7) SCC 653.
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enacted) there was to be no disqualification or
vacating of seats if the concerned MP/MLA had
filed an appeal against the conviction/sentence
after which he/she could retain his/her seat
(and
membership
of
the
House)
till
the
disposal of appeals without the requirement

of seeking or obtaining a stay of conviction
from the Higher Court. Such appeals generally
were
almost
never
decided
till
the
next
election!
In Chief Election Commission v. Jan Choukidar5

the Supreme Court upheld an order of the
Patna High Court declaring that a person who
was confined in prison had no right to vote by
virtue of the provisions contained in Section
62(2) of the RP Act, since he/she was not an
elector, and was therefore not qualified to
contest elections to either House of Parliament
or to the Legislative Assembly of a State.
5 2013 (7) SCC 507
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The above judgments did not go down at all
well with MPs or MLAs there was almost
universal antipathy in the corridors of power to
the Supreme Court of India soon to be paidback in spades, as the expression goes!
What follows is of importance and also of great

significance.
On
23rd
Government
August,
(the
2013,
UPA
the
Central
Government)
got
drafted and introduced in the Rajya Sabha

the following series of Bills: Nos.57 (LVII) of
2013, 60(LX) of 2013, 61 (LXI) of 2013 and
62(LXII) of 2013: viz.
(a)
The Representation of People (Amendment

and Validation) Bill.No.57/13 was introduced
to invalidate the judgment of the Supreme
Court of India dated 10.7.2013 in the Jan
Chowkidar
case
and
the
validation
Act
promptly was passed in both Houses of

Parliament and when assented to by the
President became law.
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(b) The Constitutional 120th Amendment Bill
No.60 of 2013 was introduced for amending
Articles 124 and 217 by substituting a new
scheme of appointment severely diluting the
role
of
the
Higher
Judiciary,
in
the
appointment of Judges. The Bill was passed

in the Rajya Sabha with an overwhelming
majority of members voting in its favour, but
the Bill lapsed because it could not be
introduced and passed in the Lok Sabha in
view of the dissolution of the Lok Sabha in
May 2014.
(c)
The Judicial Appointments Commission Bill

No.61 of 2013 for appointment of Judges in
the Higher Judiciary complementary to the
121st Constitution Amendment Bill also
introduced by the then UPA Government Bill
remained pending in the Rajya Sabha. It was
much later withdrawn (after the General
Elections of May 2014) by the successor NDA
Government in August 2014, since the NDA
Government had introduced in the Lok Sabha
a Bill of its own (along lines similar to the UPA
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Government as the Constitution 120 th
Amendment Bill).
(d)
The RPA (Second Amendment and Validation)

Bill No. 62 of 2013 proposed to invalidate the
judgment
dated
10th
July,
2013
of
the
Supreme Court in Lilly Thomas. It attempted

to re-introduce Section 8(4) of the RP Act, but
this Bill could not be passed for want of time.
However, all political parties including the
UPA Government then power in 2013 were
determined
to
forthwith
restore
the
immunities and privileges, erstwhile enjoyed

by all Parliamentarians and Legislators, in
terms of the old Section 8(4), and so an
Ordinance (on the same lines as the pending
Bill 62 of 2013 was drafted and approved by
the Council of Ministers (UPA Government)
and forwarded to the President for assent.
Before it could be assented to however in a
dramatic public posture by the Vice President
of the Congress Party (then in power) it was
withdrawn a copy of it being torn in full
public gaze at a televised press conference!
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(e)
In August 2014, the NDA Government now in

office after the May 2014 elections introduced
the Constitution 121st Amendment Bill 97 of
2014 in the Lok Sabha as well as the NJAC Bill
96 of 2014 along the lines of the Bills of the
predecessor Government; the two bills were
then passed with near unanimity on 13/14
August
2014
Constitution
in
the
120th
Lok
Sabha
Amendment
as
the
a
Constitution Amendment Bill, and the NJAC

Bill as an ordinary Bill.
The NJAC Bill as
passed was not immediately forwarded to the

President for assent, but withheld till after the
intended ratification of the Constitution 121 st
amendment Bill 2014.
After a majority of
(one half of) the State Legislatures ratified

the constitutional amendment by resolutions
the Constitution Amendment Bill along with
the Legislative Bill (NJAC Bill) were presented
for assent and were assented to by the
President on 31-12-2014.
Both measures
were thereafter brought into by force by
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notifications bearing same date viz. 13-42015.
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PART-II
The Collegium System
It must be noted that after the collegium system was
put in place after 9 Judge Bench Decision (1993) the
Independence of the Judiciary was cemented and
strengthened6. This was the view of one of Indias great
Chief Justices. But with regard to transparency, there
has been criticism. Taking advantage of this criticism
about lack of transparency Political Parties across the
political spectrum have attacked the collegium system.
But the new system totally erodes and greatly damages

the Independence of the Judiciary: unlike at least two
prior proposed Constitutional Amendments: substituting
a National Judicial Commission for the system that had
prevailed prior to 13th April, 2015.
Bill.No.67 of 1990
had proposed a Judicial Commission of 11 members of

which 7 were Sitting Judges and the eighth an
6 In the Consultation Paper on Superior Judiciary 2001

(Venkatachalaiah Commission) it is recorded that the
Superior Judiciary had performed exceedingly well
over the last 4 decades and has contributed
significantly to the advancement of public good and
good governance. The view of one of Indias most
distinguished Chief Justice.
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immediately retired CJI who were to function along with
3 non-Judges viz. Law Minister, Attorney-General and
one outstanding legal academic;
Subsequently
Venkatachaliah
came
the
Commission
Bill
drafted
(to
by
Review
the
the
Constitution) in which an NJAC was also recommended.

It was to consist of (i) Chief Justice of India; (ii) Two
senior-most Judges of the Supreme Court of India; (iii)
Union Minister for Law and Justice, (iv) one Eminent
Person nominated by the President in consultation with
CJI - recommendation was to be treated as integral in
view of the need to preserve the Independence of the
Judiciary. (quote from the Venkatachaliah Commission
Report on the Review of the Constitution).
About the slur of Judges appointing Judges those

abroad do not see it that way.
In a recent Article (taken from a paper of Dr. Arghya

Sengupta of OXFORD) relied on by the Learned
Attorney-General, viz. Structure Matters: The Impact of
Court Structure on Indian and US Supreme Court
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published in volume 61 (2013) American Journal of
Comparative Law page 1737 it has been recorded:
Given their virtual self-selection, judges

on the Indian Supreme Court are viewed
as less politicised than in the United
States. The panel structure of the Court
also prevents clear ideological blocks
from being perceived (even if there are
more activist or conservative judges)
there is not the sense that all the judges
have to assemble together for a decision
to be legitimate or fair in the eyes of the
public. Quite the opposite, judges are
viewed as bringing different skills or
backgrounds that should be selectively
utilized.
.........
The large size of the Court and the
authority of the Chief Justice to assign
judges to panels are frequently defended
on the ground that judges have different
expertise. It is not possible for a Judge
to know everything and so more judges
(so stated in Parliament) would ensure
the final law for the land is to be laid
down by Judges specialized in a
particular branch of law. If judges gain
legitimacy from expertise in interpreting
the law having specialized judges
arguably
produces
stronger,
more
legitimate judgments. The more judges
and panels on the Supreme Court the
more expertise it can draw upon. For
example, the de facto tax and
environment benches of the Indian
Supreme Court have judges who have a
specialty in these areas.
7 Electronic copy available at:

http://ssrn.com/abstract=2061061 page 101 to 138 at page
119 COPY ANNEXED AS EXHIBIT-I.
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In an important footnote it is stated (quoting Roscoe
Pound, The Courts and the Crown in THE SPIRIT OF
THE
COMMON
LAW
(1921)
that
judicial
independence was originally founded in part upon the

idea
that
judges
had
certain
expertise
in
understanding the law that the sovereign did not. This

is like the origin of judicial review in England.
It
originated in a celebrated rebuke by Chief Justice Coke

in the early 17th century of his King James I which nearly
cost Chief Justice Coke his head the story is reported
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and related by Justice Mathew in a footnote to his
judgment in Indira Gandhi vs.l Raj Narain 8.
8 1975 Suppl. SCC 1 at page 133 (footnote 96) in

the judgment of Justice Mathew the following
interesting passage occurs which reflects the
correctness of Dean Roscoe Pound dictum:On Sunday
morning, November 10, 1607, there was a remarkable interview in
Whitehall between Sir Edward Coke, Chief Justice of the Common Pleas, and
James I. We have only Cokes account of the interview and not the Kings
but, there is no reason to doubt its essential authenticity. The question
between them was whether the King, in his own person might take what
causes he pleased from the determination of the judges and determine
them himself. This is what Coke says happened: Then the King said that
he thought the law was founded upon reason and that he and others had
reason as well as the Judges; to which it was answered by me, that true it
was that God had endowed His Majesty with excellent science and great
endowments of nature, but His Majesty was not learned in the laws of his
realm of England, and causes which concern the life, or inheritance, or
goods, or fortunes of his subjects, are not to be decided by natural reason
but by the artificial reason and judgment of law, which law is an act which
requires long study and experience before that a man can attain to the
cognizance of it; and that the law was the golden metwand and measure to
try the causes of the subjects; and which protected His Majesty in safety
and peace: with which the King was greatly offended, and said, that then
he should be under the law, which was treason to affirm, as he said: to
which I said that Bracton saith, quod Rex non debet esse sub-homine sed
sub Deo et lege. The King ought not to be under a man, non debet esse
sub-homine, but under God and the law, sed sub Deo et lege, It would be
hard to find a single paragraph in which more of the essence of English
constitutional law and history could be found. (quote from R.F. V. Heuston:
Essays in Constitutional Law, Second Edition, pp. 32-33).
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Part-III
Manner of consultation under the Collegium
System
The disclosure of some files voluntarily and fairly

produced by Learned Attorney General was (to me)
most revealing from what the Attorney General orally
stated (the files could not possibly be disclosed to
anyone other than the Judges lest names got revealed
along with such disclosures); the files apparently
showed confabulations back and forth between judges
in the collegium on the one hand which and the
executive on the other hand appeared (to me) to show
the intense and healthy scrutiny under the collegium
system. The demand (and criticism) of those attacking
the collegium system that it should be made more
transparent may have some merit but the off-side is
that (some) Judges and (some) Lawyers would be
ruined in their reputation thus leading to a greater
lack of confidence in the new appointments system
(now introduced by the two measures challenged in this
Writ Petition).
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The Learned Attorney General stated that there was no
secrecy whatever attached to the proceedings of the
proposed National Judicial Appointments Commission
and it would therefore be open for scrutiny and
comment by the public through the RTI. This is a bit
alarming and whatever the ultimate decision in the
present Writ Petition this must be suitably guarded
against because if the confabulations and consultations
are
open
to
public
scrutiny
(and
thus
ensure
transparency) there is bound to be differing views

publically expressed as to why X was appointed when Y
ought to have been, or why Z was appointed who had a
questionable past record: group pressure, political
pressure and media pressure would intensify in such
situations with possibilities and reasonable probabilities
of
paidnewssyndrome/lobbying
would
being
enhanced: the new system would then be a case of

throwing the baby out with the bath-water!
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Part IV
Personal Note
On a Personal Note - Yesterday, my lords, I was much

quoted by several of my learned friends (which
prompted me to think: God save us from our friends),
I now believe that the Attorney General and Solicitor
General are my true friends, since they did not rake up
my past!!.
But seriously, my lords, I was perhaps rightly reminded

of the Chapter in my biography (Before Memory
Fades) written some years ago (and my defence is
not that my memory has since faded).
But since I have been characterized as a person

advancing arguments on behalf of a client organization,
arguments in which (it is said) I do not, myself
personally believe in, I feel I do owe an explanation and the explanation is as follows:
I have been, and I continue to be, a supporter of

the
Judicial-AppointmentCommission-system
and so are my clients whom I represent (this is so
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stated in the Writ Petition at page 26 to 31, and 44
to 45). BUT I am definitely opposed to a pretence
of a Judicial Appointments Commission which in
reality is not judicial, only partly or quasi judicial.
The Judicial Appointments Commission system
(so called) as embodied in the 99 th Constitutional
Amendment, 2014 and along with the NJAC Act,
2014, is opposed BECAUSE is not in accordance
with and does not conform to the Beijing Principles
on Independence of the Judiciary (by which we in
India are governed).
The principles were
formulated after long deliberation by Heads of the
Judiciary in the LAWASIA region (including Indias
Chief Justice) who are all signatories to the
Beijing Principle.
Principles No. 15 reads as
follows:
15. In some societies, the appointment of judges, by,
with the consent of, or after consultation with
a Judicial Services Commission has been seen
as a means of ensuring that those chosen
judges are appropriate for the purpose.
Where a Judicial Services Commission is
adopted, it should include representatives of
the higher Judiciary and the independent
legal profession as a means of ensuring that
judicial
competence,
integrity
and
independence are maintained.
Note - NOT OUTSIDERS, not representatives of the

EXECUTIVE: because this is not helpful in the
interests of maintaining the INDEPENDENCE OF
THE JUDICIARY.
Text of Beijing Principles are
annexed as Exhibit-II.
The then Law Minister had stated in Parliament, when

these measures were first introduced, that he had
consulted named persons including myself and as to
27
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ocx
what I said is accurately recorded in the Minutes of the
Meeting prepared by the office of the Law Minister.
This is what the minutes record:
Constitutional Expert and Senior Advocate,
Shri Fali Nariman stated that it is important to
remember the independence of the judiciary and
the separation of powers. The basic structure
doctrine as laid down by the Supreme Court in the
Keshavananda Bharti case could not be violated
and any proposal for appointment of judges must
be in conformity with the basic structure. He felt
that the Government should consider following the
model of the Appointments Commission as
suggested
by
the
Justice
Venkatchaliah
Commission that gave dominance to the judiciary
in the appointment process.
He stated that
composition of the Commission is the basic issue,
and a Commission with non-Judge domination
would not be viable in India.
The following is what some others invitees said (as

recorded in the Minutes of Meeting prepared by the
office of the Law Minister:
Former Law Minister Shri Shanti Bhushan

complimented Minister of law and Justice for
initiating this Consultation. He stated that the
main litigation is between the public and the
Government.
The judiciary is required to
adjudicate, and therefore Judges must be
independent of Government. If Judges feel that
they owe their appointment to Government they
will feel indebted to Government.
Therefore,
Governments role should be minimal.
The
concept of an independent judiciary needed to be
upheld and respected.
Justice V.N.Khare, retired Chief Justice of
India, voiced the view that there appears to be
28
/
ocx
consensus that the system of appointments should
change. However, there is every possibility that
the new system would be challenged in court. He
felt that the term consultation in Articles 124 and
217 did not mean concurrence, and this needed to
be clarified in the Constitution. If this is done,
then the very basis of the 1993 and 1998
judgments would be removed. He was of the
opinion that whatever character was given to the
Commission, there should be dominance of the
judiciary, with the Law Minister as a member on it.
He also suggested that one member of the
Commission could possibly be nominated by the
Supreme Court.
Justice
A.P.Shah,
Chairperson,
Law
Commission of India, put forth an alternate
model/composition of the JAC. In a note that he
circulated, he proposed that the JAC should be a
seven-member body with the Chief Justice of India
as Chairperson, and three Supreme Court judges
as members. The Law Minister would be the sole
representative of the executive.
He also put
forward the idea that there should be some
representation
from
civil
society
on
the
Commission. He also recommended that the JAC
should have a full-time Secretariat headed by a
retired High Court judge and a small investigating
team to verify the antecedents of the proposed
candidates.
This would be away with IB
investigations.
The JAC would interview
candidates in-camera; and the entire process
would be publicly disclosed with adequate
safeguards in place of protect candidates privacy.
To ensure transparency the Commission should
publish its annual report on appointments made.
Senior academician Prof. Upendra Baxi said
that as there is no empirical study on functioning
of present system and no how system worked prior
to 1993, a scientific study is required before
bringing a change in system of appointment of
Judges. He highlighted the need for inclusion of
minority groups such as women and SC/STs in the
judiciary.
Senior advocate and Constitutional expert
Shri Anil Diwan stated that the secretariat of the
JAC as formulated in the Bill is a mere Government
29
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ocx
Department. It needs staff, venue and funds. It
needs a Registry, like the Supreme Court/High
Court, and funds/expenses charged to the
Consolidated Fund of India, without governmental
budgetary control. The Constitutional Amendment
should encompass the composition and the
functions of the Commission. He raised the issue
whether the present Bill addresses the reasons as
to why the Collegium system has not succeeded.
The present system of appointment has resulted in
gross abuse of power with complete favoritism in
the appointment process.
He felt that the
composition as proposed in the Bill which was
introduced in Parliament would have the infirmities
as the Collegium. He emphasized the need for
transparency while continuing to maintain
confidentiality, to drive home the point that
increased transparency does not mean a complete
erosion of privacy and discretion. He emphasized
the need of a good database. On the issue of the
process to be followed, he suggested an
advertisement process. The data base would help
generate a credible list of persons. The criteria for
selection should become part of the Bill. There
should be provision for inputs from the Bar, public,
albeit subject to confidentiality to protect the
reputations of persons. He also felt that there
should be a pre-dominant judicial edge, though not
necessarily by seniority.
(Minutes of Meeting prepared by Office of Law Minister

are Annexed as Exhibit-III).
WITH THIS BRIEF EXPLANATION I REST MY CASE UNEMBARRASSED BY WHAT WAS STATED YESTERDAY BY
FRIENDS.
*******

Fali Nariman Submission 2

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1

influential? (whose members are fast increasing).

the Nation of the poor and needy (whose condition,

our Constitution has made no provision for a

1 1983 (1) SCC 147 (5J) at page 172 (part of

In the present case what is at issue at the start (and at

representatives in Parliament and in State Legislatures

Soon after the decision in GOLAKNATH (1967 6:5

constitutional amendment to be law in Part III,

Article 31C (as inserted with effect from

reconsider Golaknath) 1973 Supp. SCR 1: 1973

Over a year later, On 12th June 1975, the Allahabad

filed an appeal from the decision to the Supreme

Pending this appeal. Parliament

then passed (hurried through in three days in early

special provision as to elections to Parliament inter

Amendment Act, in so far it is related to election

The relevant part of Article 329A where the new

Amendment Act, as a negation of the Rule of

Amemdment of Justice Ruma Pal who has

The comment reads:

(pages 2408-2409 Vol. II)

The Constitutional amendment along with the

As an answer of Parliament to the striking down of

overwhelming majority of its members) Article 368

Amendment Act, 1976, by adding Clauses (4) and

[(5) For the removal of doubts, it is hereby

2 Ins. By the Constitution (Forty-second Amendment)

The insertion of Clause (4) and (5) in Article 368

(d)Since there had been a challenge to Clauses (4) and

Amendment Act, 1976 whilst this challenge was

stratagem to avoid what was regarded in political

The Lok Sabha passed again by an

Amendment, Bill No. 88 of 1978 which for the first

adopted by simple majority vote (51 per cent) in a

compromised or at least an attempt would be

Fortunately for democracy, the Rule of law and the

On 10.7.2013 two separate judgments of the

In Lilly Thomas vs. Union of India this Honble

Parliament and Members of State Legislatures

conviction became disqualified to become

respective seats, even though under section

disposal of appeals without the requirement

In Chief Election Commission v. Jan Choukidar5

5 2013 (7) SCC 507

What follows is of importance and also of great

drafted and introduced in the Rajya Sabha

The Representation of People (Amendment

promptly was passed in both Houses of

appointment of Judges. The Bill was passed

The Judicial Appointments Commission Bill

The RPA (Second Amendment and Validation)

Supreme Court in Lilly Thomas. It attempted

immunities and privileges, erstwhile enjoyed

In August 2014, the NDA Government now in

Constitution Amendment Bill, and the NJAC

The NJAC Bill as

passed was not immediately forwarded to the

(one half of) the State Legislatures ratified

were thereafter brought into by force by

But the new system totally erodes and greatly damages

had proposed a Judicial Commission of 11 members of

6 In the Consultation Paper on Superior Judiciary 2001

Constitution) in which an NJAC was also recommended.