Best Memorial Rakesh Aggarwal Memorial Moot Court Competition 2016 (P)

Memorial for P
BEFORE THE HONOURABLE SUPREME COURT OF

VALSTON
Writ Jurisdiction
In the matter of,
The Nation Judicial Appointment Commission Act, 2014
&
Articles 14, 19, 21, 32 and Article 50 of the Constitution of Valston
Writ Petition for

RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016
PETITIONER
RESPONDENT
Supreme Court Advocates on
VERSUS
Union of Valston
Record Association
BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE
HONOURABLE SUPREME COURT OF VALSTON
MEMORAMDUM ON BEHALF OF THE PETITIONER
MEMORIAL FOR PETITIONERS

TABLE OF CONTENTS
1.
LIST OF ABBREVIATION
iii
2.
INDEX OF AUTHORITIES
iv-v
Cases
iv
Reports
Statutes
Websites
3.
STATEMENT OF JURISDICTION
vi
4.
STATEMENT OF FACTS
vii
5.
ARGUEMENTS PRESENTED
viii
6.
SUMMARY OF ARGUEMENTS
ix
7.
ARGUEMENTS ADVANCED
1-21
1.
WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO

AMEND THE CONSTITUTION?
1-5
a. That the Intention of Drafters was clear on separation of powers and laws
regarding it
b. That 2nd , 3rd and 4th Judges case also has to be taken into consideration
c. That the parliament has transcended the ambit of legislative power
1-3
3-4
4-5
2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014
TRANSGRESS THE BASIC STRUCTURE OF THE CONSTITUTION?
6-11
a. Basic Structure Doctrine
7
b. That the amendment takes away the power of judicial review thereby violating the
basic structure
8
c. That Independence of Judiciary forms a part of the basic structure of constitution
8-10
d. International Standards
10-11


NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 ULTRA
VIRES THE CONSTITUTION?
12-21
a. That excessive power has been delegated to the Parliament via the NJAC Act
12-17
b. That the present Amendment and NJAC Act is arbitrary
17-20
c. That the present amendment and Act suffers from the vice of vagueness
20-21
8.
PRAYER
22

LIST OF ABBREVIATIONS
A.I.R.
All India Reporter
A.P.
Andhra Pradesh
Art.
Article
Assn.
Association
Cl.
Clause
Const.
Constitution
Civ.
Civil
Cri.
Criminal
Ed.
Edition
E.M.L.R.
Entertainment and Media Law Reports (UK)
E.W.C.A.
The court of Appeal of England and Wales
E.W.H.C.
High Court of England and Wales
E.C.H.R.
European Court of Human Rights
Honble
Honourable
Ltd.
Limited
M.P.
Madhya Pradesh
S.C.
Supreme Court
S.C.C.
Supreme Court Cases
S.C.J.
Supreme Court Journal
S.C.R.
Supreme Court Reports
V.
Versus
W.B.
West Bengal

INDEX OF AUTHORITIES
CASES
1. A.K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150.-------------------------------------17
2. All India Judges Association and Ors. v. Union of India and Ors. (1993) 4 SCC 288---8
3. Central Public Information Officer, Supreme Court of India v. Subhash Chandra
Aggrawal (2011) 1 SCC 496.---------------------------------------------------------------------8
4. Dr. Ram Krishna Bharadwaj vs State of Delhi, A.I.R. 1953 S.C. 318---------------------20
5. Harakchand vs Union of India, A.I.R. 1970 S.C. 1453--------------------------------------20
6. I. R. Coelho v. State of Tamil Nadu, 2007 (2) SCC 1 at page 111.---------------------------7
7. Indira Gandhi case---------------------------------------------------------------------------------4
8. Jasbir Singh v. State of Punjab (2006) 8 SCC 294---------------------------------------------8
9. Keshvananda Bharati v. State of Kerala-----------------------------------------------------4, 7
10. Kihoto Hollohan v. Zachillhu, 1992 (Supp.2) SCC 651 at 692-693 (paras 63 to 65).----8
11. L Chandra Kumar v. Union of India, 1997 (2) SCR 1186.-----------------------------------8
12. Lakshmanrao vs Judicial Magistrate, A.I.R. 1971 S.C. 186--------------------------------20
13. M. Nagaraj case------------------------------------------------------------------------------------5
14. Madras Bar Association v. Union of India, (2014) 10 SCC 1.----------------------------7, 8
15. Manak lal v. Dr. Prem Chand, A.I.R. 1957 S.C. 425.----------------------------------------17
16. Metropolitan Properties ltd v. Lannon, (1968) 3 All E.R. 304.----------------------------17
17. Minerva Mills Ltd. v. Union of India------------------------------------------------------------4
18. N. Kannadasan v. Ajayghosh, 2009 (7) SCC 1.------------------------------------------------7
19. Nandlal vs State of Haryana, A.I.R. 1980 S.C. 2097----------------------------------------20
20. Naresh Chandra Ganguly vs State of W.B., A.I.R. 1959 S.C. 133.------------------------20
21. P.A. Inamdar vs State of Maharashtra, A.I.R. 2005 S.C.3226------------------------------20
22. Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.------------------------------------3, 6
23. RK Jain v. Union of India and Ors.(1993) 4 SCC 119----------------------------------------8
24. S.P.Gupta Vs Union of India, AIR 1982 SC 149-----------------------------------------------3
25. Sawai Singh vs State of Rajasthan, A.I.R. 1986 S.C. 995-----------------------------------20
26. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831------------------------------------3, 6
27. State of A.P. vs Shree Ramarao, A.I.R. 1963 S.C. 1723-------------------------------------20
28. State of Bihar vs. Balmukund Shah: 2000 (4) SCC 640---------------------------------------9
29. Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441
------------------------------------------------------------------------------------------1,2, 3, 4, 6, 9

30. Surath Chandra Chakraborthy vs State of West Bengal, A.I.R. 1971 S.C. 752-----------20
31. Union of India v. Sankal chand Himatlal Sheth, AIR 1977 SC 2328--------------2, 3, 6, 9
32. Union of India vs. Madras Bar Association: 2010 (11) SCC 1-----------------------------10
33. Shreya Singhal v. Union of India, 2015 (4) SCALE 1.--------------------------------------21
34. P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]----------------------------------------- 8
35. Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535 ----------------------------------------8
REPORT
14th Law Commission Report on Reform of Judicial Administration--------------------2
LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON

A NEW FORUM FOR JUDICIAL APPOINTMENTS JULY, 1987.----------------------20
80th Law Commission Report------------------------------------------------------------------11
Statutes
The Constitution of India

National Judicial Appointment Commission Act, 2014
Websites
parliamentofindia.nic.in/ls/debates/debates.htm
http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf

STATEMENT OF JURISDICTION
The instant writ petitions have been filed by the petitioner under Article 32 of the Constitution
of Valston which states:
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and
( 2 ), Parliament may by law empower any other court to EXERCISE within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

STATEMENT OF FACTS
Valston, a democratic country had adopted its own Constitution exactly similar to that of India,
after its colonial independence. The enacted Constitution has exactly similar provisions for
amendments, it pledges and practices the separation of power among the legislative, executive
and judiciary with the absolute independence of judiciary from legislature and the executive
and also subjects the legislative laws to judicial review as far as they are inconsistent with the
basic structure of the Constitution and are held ultra vires for infringing the same. It also
follows and adopt the amendments made by the Republic of India in their Constitution.
The Constitution of Valston states that the judges of the Supreme Court and the High Courts
shall be appointed by the President of Valston by warrant under his hand and seal after
consultation with such of the judges of the Supreme Court and of the High Court in the States.
In the past, conflict between the legislature and the judiciary with regard to appointments had,
many a times, been brought before the Supreme Court. In one of the case, the Supreme Court
stated that the primacy of the Chief Justice of Valston recommendation to the President can
be refused for the cogent reason. In another case the Supreme Court held that the role of the
Chief Justice of Valston is primal in nature because this being a topic within judicial family, the
executive cannot have an equal say in the matter. After this a new Collegium system was
formed for the appointment and transfer of judges of High Courts and the Supreme Court.
In 2014, the Parliament of Valston passed a Constitutional Amendment Bill and National
Judicial Appointment Commission Bill, 2014 (the NJAC Act, 2014) proposing the amendment
in the procedure for the transfer and appointment of judges in High Courts and Supreme Court
of Valston, which also received assent of the President. The NJAC Act, 2014 replaced the
previous collegium system for the transfer and the appointment of Judges.
The NJAC Act 2014, got displeasure from some people amongst legal fraternity and judiciary,
while on the other hand, the action got welcoming response from political parties and
legislative bodies claiming. Now the Advocates-on-Record Association has brought this matter
before the Supreme Court through a writ petition under the original jurisdiction of Supreme
Court, questioning the legality of the said amendment and its Constitutional validity along with
that of NJAC Act, 2014.

ARGUEMENTS PRESENTED
4. WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO AMEND THE
CONSTITUTION?
d. That the Intention of Drafters was clear on separation of powers and laws
regarding it
e. That 2nd , 3rd and 4th Judges case also has to be taken into consideration
f. That the parliament has transcended the ambit of legislative power

e. Basic Structure Doctrine
f. That the amendment takes away the power of judicial review thereby violating the
basic structure
g. That Independence of Judiciary forms a part of the basic structure of constitution
h. International Standards

NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 ULTRA
VIRES THE CONSTITUTION?
d. That excessive power has been delegated to the Parliament via the NJAC Act
e. That the present Amendment and NJAC Act is arbitrary
f. That the present amendment and Act suffers from the vice of vagueness

SUMMARY OF ARGUEMENTS
CONSTITUTION?
It is submitted that the Parliament, while enacting the NJAC Constitutional Amendment Act
and the NJAC Act has gone beyond the purview of amending power bestowed on it by the
Constitution of India. The Acts transgress the concept of separation of powers as contained in
the Constitution. The procedure of Amendment as contained in Article 368 is not a plenary
power and the legislature has transcended the ambit of legislative power. The Parliament cannot
violate the basic structure of the Constitution while exercising its powers.
2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL
JUDICIAL APPOINTMENT COMMISSION ACT, 2014 TRANSGRESS THE BASIC
STRUCTURE OF THE CONSTITUTION?
It is humbly submitted before the Honble Apex Court that the Constitutional Amendment,
2014 and the National Judicial Appointment Commission Act 2014 is ultra vires of the
Constitution and is liable to be struck down as null and void. Article 124A(2) takes away the
power of judicial review thereby violating the basic structure. Also, the amendment infringes
the independence of judiciary which constitutes part of the basic structure. An amendment to
the constitution which violates the basic structure is liable to be struck down.
3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NJAC ACT,
2014 ULTRA VIRES THE CONSTITUTION?
It is humbly submitted that excessive delegation of power has been conferred to the Parliament.
The primacy of judiciary has been completely eroded by the amendment. The amendment is
arbitrary as no criteria for appointment of eminent persons has been laid down. The amendment
suffers from the vice of vagueness. Through this amendment the primacy of the Chief Justice of
Volston has sought to be done away by giving veto powers to any two members of the NJAC.
MEMORIALFOR PETITIONERS
ARGUMENTS ADVANCED
CONSTITUTION?
It is humbly submitted that the Parliament, while enacting the NJAC Constitutional
Amendment Act and the NJAC Act has gone beyond the purview of amending power bestowed
on it by the Constitution of India.
a. That the Intention of Drafters was clear
on separation of powers and laws
regarding it:
[ 1] Going by the seriousness of the matter the debates occupied full two days, the 24th
November 19491 and the next day i.e. 25th November 19492 when Dr.Ambedkar moved the
amendment of the amendment. In these two days it was unanimously resolved that
Judiciary and the Executive must be separated as early as possible.
[ 2] In the case of Supreme Court Advocates-on-Record Association v. Union of India3, while
discussing the intent of the drafters with regard to appointments referred to the Constituent
Assembly Debates whereby Dr. B.R Ambedkar stated that it would be dangerous to leave
such appointments in the hands of the executive of the day, without any kind of reservation
and limitation.4 The Apex Court further held that.
If that was the true intent, the word consultation could never be assigned its ordinary
dictionary meaning. And Article 124 (or Article 217) could never be meant to be read with
Article 74. It is therefore not possible for us to accept, that the main voice in the matter of
selection and appointment of Judges to the higher judiciary was that of the President
(expressed in the manner contemplated under Article 74). Nor is it possible to accept that
primacy in the instant matter rested with the executive. Nor that, the judiciary has been
assigned a role in the matter, which was not contemplated by the provisions of the
Constitution More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of the
1http://parliamentofindia.nic.in/ls/debates/vol7p12.htm.
2http://parliamentofindia.nic.in/ls/debates/vol7p13.htm.
3Supreme Court Advocates-on-Record Association v. Union of India C.W.P. No. 13 of 2015,
16.10.2015
4 The Constituent Assembly Debates Vol. VIII Part II 24.11.1949
possibility of the appointments being directed and impacted by political pressure and
political consideration, if the legislature was involved. We are therefore satisfied, that
when the Constituent Assembly used the term consultation, in the above provisions, its
intent was to limit the participatory role of the political-executive in the matter of
appointments of Judges to the higher judiciary.
[ 3] Moreover, the 14th Law Commission Report on Reform of Judicial Administration5 in
Paragraph 46 also debated that by enacting Articles 124 and 217, the framers had
endeavoured to put the judges of the Supreme Court above executive control.
[ 4] Article 50 of our Constitution is the most important Article as was pointed out by the
debates on Separation of the Judiciary and the Executive when the Constituent Assembly
considered Draft Article numbered as Article 39-A. Separation of the two i.e. Judiciary and
the Executive means the Executive possessing no power or role in appointing judges but
only to provide data which they think relevant for the competent appointing authority to
evaluate.
[ 5] Referring to Sankalchand's Case7 it is pointed out that even Bhagwati J was impressed
by the brooding omnipresence of Article 50, whereby he held that.
And hovering over all these provisions like a brooding omnipresence is Article 50 which lays down, as a
Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the
executive in the public services of the State. This provision, occurring in a chapter which has been
described by Granville Austin as "the conscience of the Constitution" and which embodies the social
philosophy of the Constitution and its basic underpinnings and values, plainly reveals, without any scope
for doubt or debate, the intent of the Constitution makers to immunise the judiciary from any form of
executive control or interference.
[ 6]Reliance on the Second Judges case8 can be put, and to draw the attention of the Court to
the following observations recorded by S. RatnavelPandian, J.: Having regard to the
5 14th Law Commission Report, September 26, 1958.
6 Paragraph 4: Realizing the importance of safeguarding the independence of the judiciary, the Constitution
has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the
Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High
Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on
the presentation of an address by each House of Parliament passed by a specified majority on the ground of
proved misbehavior or incapacity. Thus has the Constitution endeavored to put Judges of the Supreme Court
above executive control.
7Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328.

8 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441
importance of this concept[independence of judiciary] the Framers of our Constitution

having before them the views of the Federal Court and of the High Court have said in a
memorandum: We have assumed that it is recognised on all hands that the independence
and integrity of the judiciary in a democratic system of government is of the highest
importance and interest not only to the judges but to the citizens at large who may have to
seek redress in the last resort in courts of law against any illegal acts or the high-handed
exercise of power by the executive
[ 7]The executive in one form or the other - is the largest single litigant before the courts. In
this view of the matter the judiciary being the mediator - between the people and the
executive - the Framers of the Constitution could not have left the final authority to appoint
the Judges of the Supreme Court and of the High Courts in the hands of the executive. Such
control in the hands of the executive would cause immense inroads, in the decision making
process. And could result in, Judges trying to placate and appease the executive, for
personal gains and rewards and maintaining their office.
b. That 2nd , 3rd and 4th Judges case also has to be taken into consideration:
[ 8] The provisions of Parts V and VI of the Constitution, with reference to the Union and
the States judiciaries including Subordinate-courts, have arisen for interpretative
determination of the Supreme Court on no less than five occasions- Samsher Singhs case 9,
Sankalchands case10 and the Three Judges case11. Except for the decision in the First Judges
case, in all other cases, it was emphatically stated that the judiciary would have primacy in
matters regulated by Articles 124, 217 and 222 of the Constitution and this was also
conceded by the Union of India during the Third Judges case. The First Judges case was
rendered by a majority of 4:3. Not only, that the margin was extremely narrow, but also, the
views expressed by the Judges were at substantial variance, on all the issues. As against the
above, on a reconsideration of the matters by a larger Bench in the Second Judges case, the
decision was rendered by a majority of 7:2. Not only was the position clearly expressed,
there was hardly any variance, on the issues canvassed. So was the position with the Third
Judges case, which was a unanimous and unambiguous exposition of the controversy. The
matter having been revisited, and the position having been conceded by the Union of India,
9 Shamsher Singh v. State of Punjab, (1974) 2 SCC 831
10 Union of India v. Sankal chand Himatlal Sheth, AIR 1977 SC 2328
11 S.P.Gupta Vs Union of India, AIR 1982 SC 149, Supreme Court Advocates on Record Association
v. Union of India, (1993) 4 SCC 441 and in Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.
it does not lie in the mouth of the Union of India, to seek reconsideration of the judicial
declaration, in the Second and Third Judges cases.
[ 9] The correctness of the decision rendered in the Second Judges case is not in doubt and
to remove any misunderstanding in this regard it is humbly submitted that it has been
categorically stated in the Third Judges case that the Union of India is not seeking a review
or reconsideration of the judgment in the Second Judges case. Therefore, neither the
President nor the Union of India nor anybody else for that matter sought a reconsideration
of the Second Judges case. There is no reason (apart from an absence of a reason at law)
why such a request should be entertained at this stage, except on a fanciful
misunderstanding of the law by the Union of India.
[ 10] In the latest case law of Supreme Court Advocates-on-Record v. Union of India 12, the
Hon'ble Supreme Court of India striking down the NJAC marked that the this Judicial
Appointment Commission is violating the independence of the judiciary, which is a cardinal
principle of the Constitution. Inclusion of Eminent persons and Union law minister was
taking away the primacy of Judiciary. It was observed that the manner of selection and
appointment of Judges to the higher judiciary, is an integral component of independence
of the judiciary, which NJAC is taking away from the Judicial wing of democracy.
c. That the parliament has transcended the ambit of legislative power
[ 11] It is humbly submitted that the amending the Constitution based on the procedure
provided for in Article 368, is not a plenary power. It is pointed out; that the above power
was limited, inasmuch as the power of amendment did not include the power of amending
the core or the basic structure of the Constitution. In this behalf, learned counsel placed
reliance on Minerva Mills Ltd. v. Union of India13 , wherein majority view was expressed
through Y.V. Chandrachud, CJ., as under:
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.
12 Supreme Court Advocates-on-Record Association v. Union of India C.W.P. No. 13 of 2015,

16.10.2015.
13 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625.
The donee of a limited power cannot by the exercise of that power convert the limited power
into an unlimited one.
[ 12] Also Article 368 (5) opens with the words "for the removal of doubts" and proceeds to
declare that there shall be no limitation whatever on the amending power of Parliament
under Article 368. It is difficult to appreciate the meaning of the opening words "for the
removal of doubts" because the majority decision in Kesavananda Bharati case 14 clearly
laid down and left no doubt that the basic structure of the Constitution was outside the
competence of the amendatory power of Parliament and in Indira Gandhi case 15, all the
judges unanimously accepted theory of the basic structure as a theory by which the validity
of the amendment impugned before them, namely, Article 329-A(4) was to be judged.
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 and clause (5) could
not remove the doubt which did not exist. What clause (5), really sought to do was to
remove the limitation on the amending power of Parliament and convert it from a limited
power into an unlimited one. This was clearly and indubitably a futile exercise on the part
of Parliament.
[ 13] It is humbly submitted that the Parliament which has only a limited power of
amendment and which cannot alter the basic structure of the Constitution can expand its
power of amendment so as to confer upon itself the power of repeal or abrogate the
Constitution or to damage or destroy its basic structure. That would clearly be in excess of
the limited amending power possessed by Parliament. If it were permissible to Parliament
to enlarge the limited amending power conferred upon it into an absolute power of
amendment, then it was meaningless to place a limitation on the original power of
amendment. It is difficult to appreciate how Parliament having a limited power of
amendment can get rid of the limitation by exercising that very power and convert it into an
absolute power.
[ 14] In the M. Nagaraj case16, wherein this Court held:
9.. The power of amendment under Article 368 is a constituent power and not a constituted
power; that, that there are no implied limitations on the constituent power under Article 368;
14 Keshvananda Bharati v. State of Kerala AIR 1973 SC 1461.
15 Indira Gandhi case [1976] 2 SCR 341.
16 M Nagaraj case (2006) 8 SCC 212.
that, the power under Article 368 has to keep the Constitution in repair as and when it
becomes necessary and thereby protect and preserve the basic structure. In such process of
amendment, if it destroys the basic feature of the Constitution, the amendment will be
unconstitutional.
[ 15] Law has to change. It requires amendments to the Constitution according to the needs of
time and needs of society. It is an on-going process of judicial and constituent powers, both
contributing to change of law with the final say in the judiciary to pronounce on the validity
of such change of law effected by the constituent power by examining whether such
amendments violate the basic structure of the Constitution. However, an amendment will be
invalid, if it interferes with or undermines the basic structure. The validity of the
amendment is not to be decided on the touchstone of Article 13 but only on the basis of
violation of the basic structure of the Constitution.

[ 16] It is humbly submitted before the Honble Apex Court that the Constitutional
Amendment, 2014 and the National Judicial Appointment Commission Act 2014 is ultra
vires of the Constitution and is liable to be struck down as null and void.
[ 17] The power of judicial review vested with the higher judiciary (to examine the validity
of executive and legislative actions), bestowed superiority to the judiciary over the other
two pillars of governance. This position, it is pointed out, was critical to balance the power
surrendered by the civil society, in favour of the political and the executive sovereignty. The
immunity of judiciary from intervention of Executive or Legislative wings of government
has been upheld in plethora of cases17.
[ 18] The judgment in the Second Judges case, should be accepted as the touchstone, by
which the validity of the impugned constitutional amendment (and the NJAC Act), must be
examined. It is submitted, that the power exercised by the Parliament under Article 368, in
giving effect to the impugned constitutional amendment (and by enacting the NJAC Act),
will have to be tested in a manner, that will allow an organic adaptation to the changing
times, and at the same time ensure, that the basic structure of the Constitution was not
violated.
17 Shamsher Singh v. State of Punjab, (1974) 2 SCC 831, Union of India v. Sankal chand Himatlal
Sheth, AIR 1977 SC 2328 and the Supreme Court Advocates-on Record Association v. Union of India,
AIR 1994 SC 268 and in Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.
[ 19] It is submitted that at present, there is already a procedure adopted and approved by the
Honble Supreme Court for the appointment of the Judges of the High Courts and Supreme
Court. The very naming of Act of 2014 is a violation of the dictum laid down by the
Honourable Supreme Court in 2nd Judges case and in 3rd Judges case. The domain of
Declaration of Law by the Supreme Court is the basic feature of the Constitution of India.
The basic structure of the Constitution cannot be tiltered, altered, modified or cannot be
amended even by the Parliament. The Parliament has only a limited mandate for 5 years
which cannot alter the long settled position through an amendment in the Constitution.
[ 20] It is submitted that the law declared by Supreme Court is the law of the land (Article
141) and all authorities in India civil as well as Legislature and Executive should act in aid
of the Supreme Court (Article 144). The Honble Supreme Court has held that judge made
laws is part of the constitution18.
a. Basic Structure Doctrine
[ 21] It is submitted that as held by the majority in the Full Bench decision of 13 Honble
Judges in Keshvananda Bharati v. State of Kerala19 and reiterated and reaffirmed in the
case of I. R. Coelho v. State of Tamil Nadu20 that Article 368 does not enable Parliament to
alter the basic structure of the Constitution. Recently, in Madras Bar Association v. Union
of India21, it was laid down that:
The basic structure of the Constitution will stand violated if while enacting legislation
pertaining to transfer of judicial power, Parliament does not ensure that the newly created
court/tribunal conforms with the salient characteristics and standards of the court sought to
be substituted.
[ 22] An independent judiciary free from the clutches and control of legislature and executive
is a constitutional right and independent judiciary is one of the Basic Structure of the
Constitution of India.
[ 23] It is submitted, that any action which would have the result of making appointment of
the Judges to the Supreme Court, and to the High Courts, subservient to an agency other
than the judiciary itself, namely, by allowing the executive or the legislature to participate
in their selection and appointment, would render the judiciary subservient to such authority,
18 N. Kannadasan v. Ajayghosh, 2009 (7) SCC 1.
19 Keshvananda Bharati v. State of Kerala, 1973 (4) SCC 225 at 1007.
20 I. R. Coelho v. State of Tamil Nadu, 2007 (2) SCC 1 at page 111.
21Madras Bar Association v. Union of India, (2014) 10 SCC 1.
and thereby, impinge on the independence of the judiciary.

[ 24] The basic structure of the Constitution would stand violated if, in amending the
Constitution and/or enacting legislation, Parliament does not ensure, that the body newly
created, conformed to the salient characteristics and the standards of the body sought to be
substituted. It is asserted, that the salient features of the existing process of appointment of
Judges to the higher judiciary, which had stood the test of time, could validly and
constitutionally be replaced, but while substituting the prevailing procedure, the salient
characteristics which existed earlier, had to be preserved.
b. That the amendment takes away the
power
of
judicial
review
thereby
violating the basic structure

[ 25] It is humbly contended that the Constitutional amendment is doing away with the right
of judicial review. It is contended with reference to clause (2) of Article 124A, whereby
judicial review is barred, with reference to actions or proceedings of the NJAC, on the
ground of the existence of a vacancy or defect in the constitution of the NJAC. The
Counsel, in order to draw an analogy with L Chandra Kumar v. Union of India22 invites the
Honble Courts attention to the exclusion of the power of judicial review, contemplated
under Articles 323A (2) (d) and 323B (3) (d), wherein the power of judicial review was
similarly excluded. It is submitted, that this Court struck down a similar provision in the
aforesaid Articles, holding that the same were violative of the basic structure of the
Constitution.
[ 26] In this behalf, the counsel places reliance on the decision of this Court in the Kihoto
Hollohan vs. Zachillhu23, where the legal fiction in para 6(2) of the Tenth Schedule brings a
proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the
Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity
inspite of the immunity it enjoys to a challenge on the ground of "irregularity of
procedure." It was held that the basic structure of the Constitution cannot be altered nor can
basic features of the Constitution be destroyed which imposes a fetter on the competence
of Parliament to amend the Constitution and any amendment made in disregard of this
22 L Chandra Kumar v. Union of India, 1997 (2) SCR 1186.

23 Kihoto Hollohan v. Zachillhu, 1992 (Supp.2) SCC 651 at 692-693 (paras 63 to 65).
limitation goes beyond the amending power. Thus the power of judicial review being the
part of basic structure of the Constitution cannot be taken away.
[ 27] It is contended, that the Constitution (99th Amendment) Act, and the NJAC Act, are
truthfully a political-executive device, to rein in the power of judicial review, to avoid such
discomfiture that have taken place in the past in relation to judiciary coming in the way.
c. That Independence of Judiciary forms a
part
of
the
basic
structure
of
constitution
[ 28] RK Jain v. Union of India and Ors. ; All India Judges Association and Ors. v. Union of
24
India and Ors.25; Jasbir Singh v. State of Punjab26;Central Public Information Officer,
Supreme Court of India v. Subhash Chandra Aggrawal27; Union of India v. R. Gandhi,
President, Madras Bar Association28, identified independence of the judiciary as part of the
basic structure of the Constitution.
[ 29] In the words of Justice Krishna Iyer, Independence of the judiciary is not genuflexion,
nor is it opposition of Government. At one point of time he characterised this concept as a
Constitutional Religion.
[ 30] Independence of the judiciary had been held to mean and include insulation of the
higher judiciary from executive and legislative control. In this behalf, reference was made
to Union of India v. Sankalchand Himatlal Sheth29 , wherein the Court had observed:
50. Now the independence of the judiciary is a fighting faith of our Constitution. Fearless
justice is a cardinal creed of our founding document. It is indeed a part of our ancient
24 RK Jain v. Union of India and Ors.(1993) 4 SCC 119;see also P. Sambamurthy
vs. State of A.P. [(1994) 3 SCC 1]; Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC
535; Union of India vs. Madras Bar Asson. (2010) 11 SCC 1; Madras Bar Asson.
vs. UOI (2014) 10 SCC 1.
25 All India Judges Association and Ors. v. Union of India and Ors. (1993) 4 SCC
288
26 Jasbir Singh v. State of Punjab (2006) 8 SCC 294
27 Central Public Information Officer, Supreme Court of India v. Subhash Chandra
Aggrawal (2011) 1 SCC 496.
28 Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC
1.
29 Union of India v. Sankal Chand Himatlal Sheth &Anr: 1977 (4) SCC 193.
tradition which has produced great Judges in the past. Judicial independence is prized as a
basic value and so natural and inevitable that it has come to be regarded and so ingrained in
the life and thought of the people.
[ 31]
In the context of the appointment of Judges of the Higher Judiciary the expression
independence of the Judiciary as a constitutional concept and one that has been
consistently regarded as a basic feature of the Constitution means (and has been
consistently held to mean):
(i) Insulating the Judiciary from executive or legislative control.30
(ii) Inextricably linked and connected with the constitutional process of appointment of Judges
of the Higher Judiciary. Independence of the Judiciary is a basic feature of our
constitution.31
(iii) In the matter of appointment of Judges to the High Courts and the Supreme Court
primacy of the Higher Judiciary must be secured and protected32
(iv) the conditions for appointment of Judges to the Supreme Court and the High Courts may
not be amendable even by a constitutional amendment as the same is likely to tamper with the
independence of the judiciary and thereby adversely affect the basic features of the
Constitution33
(v) The executive element in the appointment of Judges must be reduced to a minimum34
[ 32] We have assumed that it is recognized on all hands that the independence and integrity
of the judiciary in a democratic system of government is of the highest importance and
interest not only to the Judges but to the citizens at large who may have to seek redress in
the last resort in the courts of law against any illegal acts or the high-handed exercise of
30Union of India v. Sankal Chand Himatlal Sheth &Anr: 1977 (4) SCC 193 at page 236-237 para 50)
(5 Judges).
31 Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441 at page
649 para 335); (Bench of nine Judges).
32First affirmed in Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4)
SCC 441 at page 522 para 56); (Bench of Nine Judges); re-affirmed in Special Reference No.1 of
1998 (Nine Judges) reported in 1998 (7) SCC 739) (unanimous).
33 State of Bihar vs. Balmukund Shah: 2000 (4) SCC 640 para 97 at page 747); (Bench of five
Judges).
34Union of India vs. Madras Bar Association: 2010 (11) SCC 1 at page 37 paras 50-52); (Bench of
five Judges); Justice Raveendran speaking for the Court said: 50. The Framers of the Constitution
stated in a memorandum (see The Framing of Indias Constitution, B. Shiva Rao, Vol. I-B, p. 196).
power by the executive. in making the following proposals and suggestions, the
paramount importance of securing the fearless functioning of an independent and efficient
the judiciary has been steadily kept in view.
[ 33] It is submitted that the primacy and independence of the judiciary has been totally
eroded through the impugned constitutional amendment. It is submitted, that the NJAC
contemplated under Article 124A would comprise of six Members, namely, the Chief
Justice of India, two senior Judges of the Supreme Court (next to the Chief Justice), the
Union Minister in charge of Law and Justice, and two eminent persons. The judges
component, which had the primacy (and in a manner of understanding unanimity), under
the erstwhile procedure, had now been reduced to half-strength, in the selecting body the
NJAC.
[ 34] In this even CJI would have an equivalent voting right, as the other Members of the
NJAC. Also, that even though the Chief Justice of India would be the Chairman of the
NJAC, he has no casting vote, in the event of a tie. Thus the primacy vested with the Chief
Justice of India had been fully and completely eroded thereby violating the basic structure
of constitution.
[ 35] Article 50 says that the Government shall strive to keep the Judiciary separate from the
Executive. The purpose of this article is to ensure that in the appointment of Judges, the
Executive has no role to play, except the advisory role. In other words, the doctrine of
primacy of the Executive in the appointment process was irksome to us because the whole
nation of India has been the victim of the Judges appointed in the earlier system.
d. International Standards
[ 36] The attention of this Hon'ble Court is invited to the approach adopted by United Nations
on the independence of Judiciary as part of 'Human Rights in administration of Justice'
envisaged by the Seventh United Nations Congress at Milan and endorsed by the U.N.
General Assembly in 1985, which provide inter alia as under:
"...Basic Principles on the Independence of the Judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in
the Constitution or the law of the country. It is the duty of all governmental and other
institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any
reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is within its
competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial
process, nor shall judicial decisions by the courts be subject to revision. This principle
is without prejudice to judicial review or to mitigation or commutation by competent
authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using
established legal procedures. Tribunals that do not use the duly established procedures
of the legal process shall not be created to displace the jurisdiction belonging to the
ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the parties
are respected.
7. It is the duty of each member state to provide adequate resources to enable the
judiciary to properly perform its function.
[ 37] The Supreme Court and High Courts are the guardians of Indian Constitution. Article
50 of the Constitution of India postulates separation of powers among executive, legislature
and judiciary. The Constitution of India is the supreme law in the democratic fabric of
India. The Judges are accountable only to the Constitution of India and not to the NJAC.
Also in the 80th Law Commission Report, It was observed that an independent judiciary is
absolutely indispensible for ensuring the Rule of Law. Generally in regard to appointment of
judges, it was observed that wrong appointments have affected the image of the Courts and
have undermined the confidence of the people in them. Further, it was observed that an
appointment not made on merit but because of favouritism or other ulterior considerations can
hardly command real and spontaneous respect of the Bar and that the effect of an improper
appointment is felt not only for the time being but its repercussions are felt long thereafter.

NJAC ACT, 2014 ULTRA VIRES THE CONSTITUTION?
a. That excessive power has been delegated to the Parliament via the NJAC Act
[ 38] Counsel on behalf of Petitioner invite the Courts attention to the 1st Law
Commission Report on Reform of Judicial Administration (14th Report of the Law
Commission of India, chaired by M.C. Setalvad), wherein it was debated, that by enacting
Articles 124 and 217, the framers of the Constitution had endeavoured to put the Judges of
the Supreme Court above executive control. Paragraph 4 of the said Report is being
extracted hereunder: (Appointment and removal of Judges) 4. Realizing the importance of
safeguarding the independence of the judiciary, the Constitution has provided that a Judge
of the Supreme Court shall be appointed by the President in consultation with the Chief
Justice of India and after consultation with such of the other Judges of the Supreme Court
and the High Courts as he may deem necessary. He holds office till he attains the age of 65
years and is irremovable except on the presentation of an address by each House of
Parliament passed by a specified majority on the ground of proved misbehaviour or
incapacity. Thus has the Constitution endeavoured to put Judges of the Supreme Court
above executive control.
[ 39] The executive in one form or the other - is the largest single litigant before the
courts. In this view of the matter the judiciary being the mediator - between the people and
the executive - the Framers of the Constitution could not have left the final authority to
appoint the Judges of the Supreme Court and of the High Courts in the hands of the
executive.
[ 40] It is submitted that the primacy of the judiciary has been totally eroded through the
impugned constitutional amendment. It is submitted, that the NJAC contemplated under
Article 124A would comprise of six Members, namely, the Chief Justice of India, two
senior Judges of the Supreme Court (next to the Chief Justice), the Union Minister in
charge of Law and Justice, and two eminent persons. The judges component, which had
the primacy (and in a manner of understanding unanimity), under the erstwhile procedure,
had now been reduced to half-strength, in the selecting body the NJAC.
[ 41]
The counsel contests not only the constitutional validity of clauses (c) and (d) of
Article 124A(1), but also the first proviso under Article 124A(1)(d), which postulates, that
one of the eminent persons should belong to the Scheduled Castes, Scheduled Tribes,
Other Backward Classes, Minorities or Women. It is submitted, that these sort of populistic
measures, ought not to be thought of, while examining a matter as important as the higher
judiciary. It was submitted, that it was not understandable, what the choice of including a
person from one of the aforesaid categories was aimed at. In the opinion of learned counsel,
the above proviso was farcical, and therefore, totally unacceptable. While members of a
particular community may be relevant for protecting the interest of their community, yet it
could not be conceived, why such a measure should be adopted, for such an important
constitutional responsibility.
[ 42] Article 124B introduced by the Constitution (99th Amendment) Act, whereunder, the
authority to initiate the process, had now been vested with the NJAC. Under the new
dispensation, the NJAC alone would recommend persons for appointment as Judges to the
higher judiciary.
[ 43] Article 124C introduced by the Constitution (99th Amendment) Act, was wholly
unnecessary. It is pointed out, that in the absence of Article 124C; the NJAC would have
had the inherent power to regulate its own functioning. It is submitted, that Article 124C is
a serious intrusion into the above inherent power. Now that, the Parliament had been
authorized to regulate the procedure for appointments by framing laws, it would also result
in the transfer of control over the appointment process (of Judges to the higher judiciary),
to the Parliament. It was submitted, that there could not be any legislative control, with
reference to appointment of Judges to the higher judiciary. Such legislative control,
according to the counsel for petitioner, would breach independence of the judiciary.
[ 44] It is contended, that the Constitution (99th Amendment) Act, and the NJAC Act, are
truthfully a political-executive device, to rein in the power of judicial review, to avoid such
discomfiture that have taken place in the past in relation to judiciary coming in the way.
[ 45] It is also pointed out, that in the three-Member Committee authorised to nominate
eminent persons included the Prime Minister and the Leader of the Opposition in the Lok
Sabha, besides the Chief Justice of India. It is therefore submitted, that in the six-Member
NJAC, three Members would have political-executive lineage. This aspect of the matter,
according to the counsel, will have a devastating effect. It will negate primacy of the higher
judiciary, and the same would result in undermining the independence of the judiciary.
[ 46]
Parliament having exercised its authority in that behalf, by framing the NJAC Act,
and having provided therein, the ultimate control with the Parliament, must be deemed to
have crossed the line, and transgressed into forbidden territory, exclusively reserved for the
judiciary. The counsel submits that the duties and responsibilities vested in a constitutional
authority could only be circumscribed by the Constitution, and not by the Parliament
through legislation. It is submitted, that the NJAC was a creature of the Constitution, as the
NJAC flows out of Article 124A. Likewise, the Parliament was also a creature of the
Constitution. It is submitted, that one entity which was the creation of the Constitution,
could not regulate the other, owing its existence to the Constitution. It is submitted, that if
the impugned provisions were to be declared as constitutionally valid, there would be no
means hereafter, to restore the independence of the judiciary.
[ 47] In addition, Article 124C leaves open enormous scope for the Parliament, by ordinary
legislation, to give primacy to the Executive or Veto powers to the Executive or other
unchecked powers to the Executive for the appointment of Judges to the higher Judiciary.
Thus for instance, the second proviso to Sub-section 2 of Section5 35 and Sub-Section6 of
Section6 of the National Judicial Appointments Commission Act, 2014, which has been
purported to be passed by both Houses of Parliament as an ordinary Bill (and not as a
Constitution Amendment Bill), provides that 'the Commission shall not recommend a
person for appointment if any two members of the Commission do not agree for such
recommendation'. Not only does this very provision open possibilities for erosion of
Independence of the Judiciary but such an ordinary law can be also amended to substitute
for the words 'two members' the words 'one member' - thus completely negating any
effective role of the three senior most members of the Higher Judiciary in appointment of
Judges to the Supreme Court and the High Courts, and thus wholly transferring the power
of appointment of Judge, of the Higher Judiciary to the Executive.
[ 48] According to the counsel, the politicization of the process of selection and
appointment of Judges to the higher judiciary, would lead to a dilution of the independence
of the judiciary. It is submitted, that the inclusion of the Union Minister in charge of Law
and Justice, as an ex officio Member of the NJAC, had the effect of politicization of the
process of appointment of Judges to the higher judiciary. Even though the Union Minister
had been assigned only one vote, it was submitted, that he could paralyse the whole system,
on the basis of the authority he exercised.
[ 49] Referring to the second proviso under Section 5(2), as well as, Section 6(6) 36 of the
NJAC Act, it is submitted, that a recommendation for appointment of a Judge, cannot be
carried out, if the two eminent persons did not accede to the same. In case they choose to
disagree with the other Members of the NJAC, the proposed recommendation could not be
given effect to, even though the other four Members of the NJAC including all the three
representatives of the Supreme Court approved of the same. It is pointed out, that the two
eminent persons, therefore would have a decisive say.
[ 50] It is further submitted, that the impact of the determination of the two eminent
persons, would be such, as would negate the primacy hitherto before vested in the Chief
Justice of India. It is pointed out, that a positive recommendation by the Chief Justice of
35 Second proviso to Section 5(2) of the NJAC Act, 2014:Provided further that the Commission shall
not recommend a person for appointment if any two members of the Commission do not agree for
such recommendation.
36 Section 6(6) of the NJAC Act, 2014: The Commission shall not recommend a person for
appointment under this section if any two members of the Commission do not agree for such
recommendation.
India, supported by two other senior Judges of the Supreme Court (next to the Chief Justice
of India), could be frustrated by an opposition at the hands of the two eminent persons.
[ 51] The above power of veto exercisable by two lay persons, or alternatively one lay
person, in conjunction with the Union Minister in charge of Law and Justice, would cause a
serious breach in the independence of the judiciary.
[ 52] It is the contention of the learned counsel, that the delegation of power contemplated
under Article124C, amounted to vesting the NJAC, with what was earlier vested with the
Chief Justice of India. In this behalf, reference was also made to Sections 1137, 1238 and 1339
of the NJAC Act. The power to make rules, has been vested with the Central Government
under Section 11, and the power to make regulations has been entrusted to the NJAC under
Section 12. The aforementioned rules and regulations, as drawn by the Central
Government/NJAC, are required to be placed before the Parliament under Section 13, and
only thereafter, the rules and regulations were to be effective (or not to have any effect, or
37 Section 11 of the NJAC Act, 2014: (1) The Central Government may, by notification in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or
any of the following matters, namely:
(a) the fees and allowances payable to the eminent persons nominated under sub-clause (d) of clause (1) of
article 124A of the Constitution;
(b) the terms and other conditions of service of officers and other employees of the Commission under subsection (2) of section 8;
(c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the
rules.
38 Section 12 of the NJAC Act, 2014:(1) The Commission may, by notification in the Official Gazette, make
regulations consistent with this Act, and the rules made thereunder, to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide
for all or any of the following matters, namely:
(a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sub-section (2)
of section 5;
(b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under subsection (3) of section 5;
(c) the criteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of
section 6;
(d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of
section 6;
(e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6;
(f) other procedure and conditions for selection and appointment of a Judge of the High Court under sub-section
(8) of section 6;
(g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court
under section 9;
(h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of
section 10;
(i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the
quorum at its meeting, under sub-section (2) of section 10;
(j) any other matter which is required to be, or may be, specified by regulations or in respect of which provision
is to be made by regulations.
to have effect as modified). It was submitted, that the entrustment of the procedure of
appointment of Judges to the higher judiciary, and also, the action of assigning the manner
in which the NJAC would discharge its functions (of selecting Judges to the higher
judiciary), with either the executive or the legislature, was unthinkable, if independence of
the judiciary was to be maintained. It was pointed out, that the intent behind Article 124C,
in the manner it had been framed, stood clearly exposed, by the aforesaid provisions of the
NJAC Act.
[ 53] Reference is also made to Section 12 of the NJAC Act, the highlight, that the NJAC
had been authorized to notify in the Official Gazette, regulations framed by it, with the
overriding condition, that the regulations so framed by the NJAC were to be consistent with
the provisions of the NJAC Act, as also, the rules made thereunder (i.e., under Section 11 of
the NJAC Act). Having so empowered the NJAC (under Sections 11 and 12 referred to
above), and having delineated in Section 12(2), the broad outlines with reference to which
the regulations could be framed, it was submitted, that the power to delegate the authority
to frame regulations clearly stood exhausted. In that, the Parliament had no jurisdiction
thereafter, to interfere in the matter of framing regulations. In fact, according to the learned
counsel, consequent upon the empowerment of the NJAC to frame regulations, the
Parliament was rendered functus officio, on the issue of framing regulations.
[ 54] It is also submitted that the Primacy of the Opinion of Chief Justice of India is
sought to be done away with by passing the National Judicial Appointments Commission
Act of 2014, by giving Veto powers to any two members of the National Judicial
Appointments Committee (being either the Eminent Person or the Law Minister) thereby
overruling the recommendation of the Chief Justice of India and other two Senior Most
Judges of Honble Supreme Court of India. Such provision is contrary to the observation of
this Honble Court in decision reported as (1993) 4 SCC 441, wherein the Bench of 9
Judges of this Honble Court (by Majority of 5:4) has observed that (Para 432):-
39 Section 13 of the NJAC Act, 2014: Every rule and regulation made under this Act shall be laid, as
soon as may be after it is made, before each House of Parliament, while it is in session, for a total
period of thirty days, which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses
agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done
under that rule or regulation.
[ 55]
The question of primacy of the role of the Chief Justice of India in the context of
appointment of Judges in the Supreme Court and the High Courts must be considered to
achieve the Constitutional purpose of selecting the best available for composition of the
Supreme Court and the High Courts.
b. That the present Amendment and NJAC Act is arbitrary
[ 56]
The Apex Court of India in A.K. Kraipak v. Union of India40 following the test laid
down in Manak lal v. Dr. Prem Chand41 observed that, the test was not actual bias but a
reasonable apprehension of bias.
[ 57] Democracy does not include the power of the legislature to destroy Democracy.
Appointment of Superior Judges is a sacred duty and any lesser interest political, economic
or a reasonable suspicion of its existence should be strictly excluded. A law Minister who
has to retain power is more interested in securing votes, serving a limited constituency and
doing or not doing things according to the exigencies of vote bank politics. He cannot
possibly be allowed to participate and pollute this holy task.
[ 58] The landmark on the subject of biasness Metropolitan Properties ltd v. Lannon42
where Lord Denning has laid down the test of bias is whether there is Real Likelihood of
bias or not in the facts of the case and this has to be ascertained with reference to the right
minded persons.
[ 59] The Executive having any role in the appointment process of the Judges creates a
reasonable suspicion in the mind of the Litigant fighting against the State that Judges
appointed by the Executive cannot be totally impartial. Appointment of a Judge by a
Minister or some bureaucrat under him prosecuting a citizen in a criminal case may well
lead the accused to entertain a reasonable suspicion of judicial bias. This violates Article 21
of the Constitution which has been held to be part of basic structure of the Constitution and
is subject to no restriction.
[ 60] Having an ex-officio body would lead to arbitrary appointments which violates
Article 14 and 21 of the Constitution of India. The said Articles are part of the basic
structure of the Constitution and guarantee non-arbitrariness and rule of law.
[ 61] Further it is contended that the said Act does not lay down any standard of
transparency, which is a sine qua non for appointments to high offices as held by this
Honble Court in various judgments. The said Act also does not lay down any objective
40 A.K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150.
41 Manak lal v. Dr. Prem Chand, A.I.R. 1957 S.C. 425.
42 Metropolitan Properties ltd v. Lannon, (1968) 3 All E.R. 304.
criteria for the selection of judges. It does not also state how the NJAC would evaluate the
candidates for final selection. Therefore, the said Act gives unguided discretion to the
NJAC to make arbitrary selection in an opaque manner. The said Act is thus violative of
Article 14 and 21 of the Constitution, which guarantee non-arbitrariness and rule of law,
and is therefore unconstitutional and void.
[ 62] Section 6 Sub Section 4 of The National Judicial Appointments Commission Act,
2014 stipulate that the Chief Justice of the High Courts shall consult two eminent
Advocates of the High Courts before making recommendation of appointment of Judges of
High Court. After the selection of High Court Judges, the two eminent Advocates of the
High Court who recommended the names can appear before the Judges and argue cases.
This is arbitrary and seems to be a personal bias which may affect the impartiality and
independent judiciary enunciated under the basic structure of the Constitution of India.
Thus, the Advocates can make recommendation for the appointment of Judges in High
Courts by Section 6 Sub Section 4 43 of Act 40 of 2014 and the same advocate can argue
cases before them.
[ 63] The term any other criteria of suitability mentioned in Sub Section 1 of Section 6 of
the Act is vague which may lead to shake the independence of the judiciary. Section 6 Sub
Section 4 stipulates that consultation of eminent Advocates of that High Court is to be taken
before selection. The law is trite that an Advocate cannot be consulted for appointment of
Judges of High Court. If it is allowed, the same Advocate who recommended for the
selection of High Court Judge can appear before the High Court Judge for arguing cases by
none other than one of the Advocates who had recommended the name of that Judge. Thus
Sub Section 4 of Section 6 is also arbitrary and biased and will destroy the basic structure
of the Constitution of India and an independent judiciary. Sub Section 6 of Section 6 states
that if any two members of the Commission do not agree for the recommendation of a
member to be appointed as Judge of the High Court, the recommendation will fail leading
to a futile effort. If there is no valid recommendation, no appointment of Judges of the High
Court can be done, which is against the provisions of the Constitution of India with regard
to the appointment of Judges in the Higher Judiciary. Thus, at any rate Sub section 6 of
Section 6 is arbitrary and violative of the provisions of the Constitution of India, with
regard to the selection and appointment of High Court Judges.
43 Section 6(4)of the NJAC Act, 2014: Before making any nomination under sub-section (2) or
giving its views under sub-section (3), the Chief Justice of the concerned High Court shall consult two
senior-most Judges of that High Court and such other Judges and eminent advocates of that High
Court as may be specified by regulations.
[ 64]
An unjust law is not a true law and the same is not worthy of being followed. An
unreasonable, unjust, arbitrary, mala fide, and oppressive law is not true law and same
needs to be struck down.
[ 65] The question was of the purity of the justice delivery system. The question was about
the maintenance of judicial standards. All these questions emerged from the fountainhead,
namely, the manner of appointment of Judges to the higher judiciary. The provisions of
Article 124, it was pointed out, as it existed prior to the impugned amendment, had
provided for a system of trusteeship, wherein institutional predominance of the judiciary
was the hallmark. It was submitted, that the aforesaid trusteeship should not be permitted to
be shared by those, whose rival claims arose for consideration before Courts of law. The
judicial responsibility in the matter of appointment of Judges, according to learned counsel,
being the most important trusteeship, could not be permitted to be shared, with either the
executive or the legislature.
[ 66] In accord with all this the Chief Justice of the Australia stated "... The Chief Justice of
Australia on being dissatisfied with the Australian system for selection and appointment of
Judges which provides an opportunity for political influence, advocated in July 1977 that
the time is now ripe for a Judicial Appointments Committee to be set up in Australia
composed of Judges, lawyers and, indeed laymen likely to be knowledgeable in the
achievements of possible appointee. "44. It on the same principle that the British Parliament
has in its legislation which came into force on 3rd April 2006 created a Commission from
which politicians have been totally excluded. Every Minister in the government is party to
most disputes in Court and he must not be allowed to have a vote in the matter of Judicial
Appointments.
[ 67] The Government of the day decided that only those judges who are committed to the
ideology of the government should be appointed. The saying, that in order to become a
judge, it was not important to know the law, but more important to know the law Minister,
became the prevailing wisdom. The subversion of the independence of the judiciary by the
appointment of convenient judges became a major issue, especially with increasing
corruption within the executive.
c.That the present amendment and Act suffers from the vice of vagueness
[ 68] The Supreme Court of India has invalidated laws on the ground of vagueness in a
plethora of cases since.45
44 LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON A NEW

FORUM FOR JUDICIAL APPOINTMENTS JULY, 1987.
[ 69]
The inclusion of two eminent persons in the six-Member NJAC, as provided for,
under Article 124A (1) of the Constitution (99th Amendment) Act, is also clearly
unconstitutional. It is contended, that there necessarily had to be, an indication of the
positive qualifications required to be possessed by the two eminent persons, to be
nominated to the NJAC. Additionally, it is necessary to stipulate disqualifications.
Illustratively, it is pointed out, that an individual having a conflict of interest should be
disqualified. And such conflict would be apparent, when the individual had a political role.
A politician has to serve his constituency, he has to nourish and sustain his vote bank, and
above all, he has to conform with the agenda of his political party. Likewise, a person with
ongoing litigation, irrespective of the nature of such litigation, would render himself
ineligible for serving as an eminent person within the framework of the NJAC, because
of his conflict of interest.
[ 70] Attention to Article 124A is to be drawn where under, the above two eminent
persons are to be nominated by a committee comprising of the Prime Minister, the Chief
Justice of India and the Leader of Opposition in the House of People, or, where there is no
such Leader of Opposition, then, leader of the single largest opposition party in the House
of the People. Learned counsel submitted, that neither Article 124A, nor any other
provision, and not even the provisions of the NJAC Act, indicate the qualifications, of the
two eminent persons, who have been included amongst the six-Member NJAC. It is
sought to be asserted, that in approximately 70 Statutes and Rules, the expression eminent
person has been employed. Out of the 70 Statutes, in 67, the field in which such persons
must be eminent, has been clearly expressed. Only in three statutes, the term eminent
person was used without any further qualification. It is asserted, that the term eminent
person had been left vague and undefined, in Article 124A. It is submitted, that the
vagueness of the term eminent person was itself, good enough to justify the striking down
of the provision. It is emphasized, that the determinative role assigned to the two eminent
persons, included amongst the six-Member NJAC, was so important, that the same could
not be left to the imagination of the nominating committee, which comprised of just men
45 Harakchand vs Union of India, A.I.R. 1970 S.C. 1453, P.A. Inamdar vs State of Maharashtra,
A.I.R. 2005 S.C.3226, Nandlal vs State of Haryana, A.I.R. 1980 S.C. 2097, Lakshmanrao vs Judicial
Magistrate, A.I.R. 1971 S.C. 186, Sawai Singh vs State of Rajasthan, A.I.R. 1986 S.C. 995, Surath
Chandra Chakraborthy vs State of West Bengal, A.I.R. 1971 S.C. 752, State of A.P. vs Shree Ramarao,
A.I.R. 1963 S.C. 1723, Dr. Ram Krishna Bharadwaj vs State of Delhi, A.I.R. 1953 S.C. 318, Naresh
Chandra Ganguly vs State of W.B., A.I.R. 1959 S.C. 133.
with all the failings, all the sentiments and all prejudices which we as common people
have (relying on the words of Dr. B.R. Ambedkar).
[ 71] Statement of Objects and Reasons, as were projected for the instant legislation,
indicated inter alia, that the NJAC would provide a meaningful role to the judiciary.
[ 72] It is contended, that the enactments under reference, amounted to commission of a
fraud by Parliament, on the people of the country. As it was not possible to understand, how
and who was to be made accountable the executive, the eminent persons, the
judiciary itself. It was accordingly sought to be asserted, that the Parliament seemed to be
asserting one thing, while it was doing something else. Counsel placing reliance on Shreya
Singhal v. Union of India46contends that such a vague law should be struck down.
[ 73] The NJAC is an ex-officio body of people who would have little time to devote to
appointments and does not lay down any standards of transparency in the appointments.
Selecting more than 100 judges of the higher judiciary every year (from amongst thousands
of potential candidates) in a rational and fair manner is an onerous task requiring a full-time
and not an ex-officio body. Before making a selection, the candidates have to be evaluated
for their competence, integrity, judicial temperament and their sensitivity for the concerns
of common persons. The same cannot be done by an ex-officio body. An ex-officio body of
sitting judges and ministers cannot devote the kind of time required for this task. Therefore,
the said Amendment does not create a body that can fulfil the onerous task of appointing
Supreme Court and High Court judges by finding out the best available talent. The
Amendment does not ensure judicial integrity and thus violates the Basic Structure of the
Constitution.
46 Shreya Singhal v. Union of India, 2015 (4) SCALE 1.
Prayer for Relief

In view of the aforementioned facts and circumstances of the present case, the petitioners
most respectfully pray that this Honble Court may kindly be pleased to:(a) That it be declared by issuance of appropriate order or direction that the Constitution 99th
Amendment Act, 2014 violates the basic structure of the Constitution and is invalid, void and
unconstitutional;
(b) That it be declared by issuance of appropriate order or direction that the National Judicial
Appointments Commission Bill of 2014 passed by both the houses of Parliament in August
2014 was beyond the legislative competence of the Parliament and was in violation of
Articles 124(2) and 217(1) of the Constitution of India as enacted and in force in August 2014
and as such is invalid and void;
(c) That it be declared by issuance of an appropriate order or direction that the assent of the
President to the National Judicial Appointments Bill cannot confer any validity on the said
National Judicial Appointments Bill of 2014, since the Parliament was not competent to pass
the National Judicial Appointments Bill of August 2014;
(d) That it be declared by issuance of an appropriate writ, order or direction that the Article
124(2) and Article 127(1) of the Constitution of India, 1950 as enacted continue to remain in
force and the interpretation placed upon these articles by the larger Constitution Bench
Judgments of this Honble Court to remains unaffected by the Constitution 99th Amendment
Act, 2014 and by the purported passing of the National Judicial Appointments Commission
Bill of 2014 (and consequently National Judicial Appointments Commission Act, 2014) ;
(e) That appropriate writ, order or consequential directions be issued so that the Basic
Structure of the Constitution is preserved;
(f) For that such further and other order / orders be passed as may be necessary and deemed
fit and proper in the facts and circumstances of the case to sub serve the interest of justice and
protect the independence of the Judiciary;
AND FOR THIS ACT OF KINDESS THE PETITIONER SHALL AS IN DUTY BOUND
EVER PRAY.

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Memorial for P

BEFORE THE HONOURABLE SUPREME COURT OF

Writ Petition for

Supreme Court Advocates on

MEMORAMDUM ON BEHALF OF THE PETITIONER

MEMORIAL FOR PETITIONERS

WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO

2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

MEMORIAL FOR PETITIONERS

3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

MEMORIAL FOR PETITIONERS

All India Reporter

Entertainment and Media Law Reports (UK)

The court of Appeal of England and Wales

High Court of England and Wales

European Court of Human Rights

Supreme Court Cases

Supreme Court Journal

Supreme Court Reports

MEMORIAL FOR PETITIONERS

MEMORIAL FOR PETITIONERS

14th Law Commission Report on Reform of Judicial Administration--------------------2

LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON

80th Law Commission Report------------------------------------------------------------------11

The Constitution of India

MEMORIAL FOR PETITIONERS

MEMORIAL FOR PETITIONERS

MEMORIAL FOR PETITIONERS

5. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

6. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

MEMORIAL FOR PETITIONERS

7Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328.

importance of this concept[independence of judiciary] the Framers of our Constitution

12 Supreme Court Advocates-on-Record Association v. Union of India C.W.P. No. 13 of 2015,

2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

and thereby, impinge on the independence of the judiciary.

violating the basic structure

22 L Chandra Kumar v. Union of India, 1997 (2) SCR 1186.

3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND

44 LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON A NEW

46 Shreya Singhal v. Union of India, 2015 (4) SCALE 1.

Prayer for Relief

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