1

Team Code – F

2nd INTRA MOOT COURT

IN THE SUPREME COURT

OF ASGUARD

Organisation for Democratic Reforms & Anr. --------------------------------------------------- Petitioner

v.

Union of Asgard & Registry, Supreme Court of Asgard----------------------------------------Respondent

Compendium of Respondant
 2

INDEX

Serial Name of Case Page no.

no.

1 4
The Registrar of Supreme Court v. R.S Mishra [ W.P.(C) 3530/2011]
2

2 5
Mr. Vijay Prakash Gupta v. CPIO4 AIR 2014

3 6
Supreme Court of Asgard v. Subhash Chandra Agarwal [10044 of 2010]
AIR 2019, Sept.

4 7
Justiniano Augusto De Piedade Barreto Vs. Antonio Vicente Da Fonseca
and Otherers, (1979) 3 SCC 47

5 8
Kaushalya Rani v. Gopal Singh 1963 AIR 260, 1964 SCR (1) 982

6 9
Revenue Bar Associations v. Union of Asgard 2019 W.P.Nos.21147,
21148 and 14919 of 2018

7 10-13
Union of India Vs. Sankalchand Himatlal Sheth, (1977) 4 SCC 193

8 Supreme advocate on record association & anr. Vs uoi, (1993) supp 2 scr 14
659

9 15-16
Supreme court advocates on record association v. Union of Asgard, 2015)
air 2015 sc 5457

10 17-18
Manohar Lal Sharma vs The Principal Secretary & Others on 25 August,
2014

11 19
A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988
 3

12 21-22
M.C Metha v. Union of Asgard 1987 AIR 1086, 1987 SCR (1) 819

13 23
University of Kerala v. Council, Principals Colleges, Kerala 11 February
2009

14 24
Golak Nath v. State of Punjab

15 25-26
Union Carbide Corporation v. Union of Asgard AIR 273, 1989 SCC (2)
540

16 27-28
R. P. Luthra vs Union of India & Anr. on 1 March, 2017

17 29-30
SC Advocate-on record association v. Union of Asgard AIR 2016 SC
5457

18 31-34
S. P. Gupta v. Union of India 1981

19 35-37
Supreme Court Advocate-on-Record Association v. Union of India 1993
 4

1. The Registrar of Supreme Court v. R.S Mishra2 [ W.P.(C) 3530/2011]

This extract is taken from The Registrar of Supreme Court v. R.S Mishra2 [ W.P.(C) 3530/2011]

“The RTI Act does not provide for an appeal against a Supreme Court judgment/order that has attained
finality. It is clarified that queries under the RTI Act would be maintainable to elicit information like
how many leaves a Hon'ble Judge takes or about an administrative decision a Hon'ble Judge takes, but
no query shall lie about a judicial decision/function.”

Ms. Deepali Gupta submitted that Rule 2, Order XII of the SCR appears to impose a restriction on
access to information held by or under the control of a Public Authority which is prima facie
inconsistent with the RTI Act. She pointed out that under Section 6(2) of the RTI Act an applicant is
not to give reason for seeking the information and only nominal fee has to be paid. According to her,
the same is not so under Rule 2, Order XII of the SCR, as good cause has to be shown. Hence, she
submitted that purpose and reasons for seeking information are called for under the SCR.

She submitted that the SCR have been framed under Article 145 of the Constitution to govern the
Supreme Court proceedings but not to control proceedings under the RTI Act. The Rules are framed to
provide certified copies but not information and thus according to her the scope and object of the RTI
Act and SCR are altogether different. Consequently, according to her, the finding of the CIC that,
"Therefore this Commission respectfully disagrees with the observation of the then Chief Information
Commissioner and holds that Rule 2, Order XII of the SCR, appears to impose a restriction on access
to information held by or under the control of a Public Authority, which is prima facie inconsistent
with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI
Act shall override the SCR" is well reasoned and justified.

Rule 2 of the SCR cannot be read in isolation and needs to be read along with Rule 1. Rule 1 of the
SCR allows a party to a proceeding in the Supreme Court to apply and receive certified copies of all
pleadings, judgment, decree or order, documents, etc. Therefore, both Rule 2 and Rule 1 of the SCR
aim at dissemination of information. However, Rule 2 of the SCR, merely imposes a condition on a
person who is not a party to the case (pending or disposed) to show a good cause to obtain a copy of
the same.
 5

2. Mr. Vijay Prakash Gupta v. CPIO4 AIR 2014

This extract has been taken from Mr. Vijay Prakash Gupta v. CPIO4 AIR 2014
The respondent referred to a decision of the Commission passed in appeal No.
CIC/RM/A/2014/001189 titled as Mr. Vijay Prakash Gupta v. CPIO4, Supreme Court of India in
which the Commission observed that "This Commission, in its decision CIC/RM/A/2014/004655
dated 09.03.2016 held that the provisions of the Right to Information (RTI) Act cannot override the
rules and orders made by the Supreme Court of India for disclosure of certified copies of judicial
records mainly because there is nothing inconsistent in those rules and orders. The common
objective of both the Right to Information (RTI) Act and the rules and orders of the Supreme Court
of India is the disclosure of information. Therefore, any citizen seeking certified copies of judicial
records must get such records by adopting the procedure prescribed by the Supreme Court and not
under the Right to Information (RTI) Act".
 6

3. Supreme Court of Asgard v. Subhash Chandra Agarwal [10044 of 2010] AIR 2019, Sep.
This extract has been taken from Supreme Court of Asgard v. Subhash Chandra Agarwal
[10044 of 2010] AIR 2019, Sep.
The expression ‘public authority’ as used in the RTI Act is of wide amplitude and includes an
authority created by or under the Constitution of India, which description holds good for the Chief
Justice of India. While the Chief Justice of India is designated as one of the competent authorities
under Section 2(e) of the RTI Act, the Chief Justice of India besides discharging his role as the
head of the judiciary also performs a multitude of tasks assigned to him under the Constitution and
various other enactments.
 7

4. Justiniano Augusto De Piedade Barreto Vs. Antonio Vicente Da Fonseca and Otherers,
(1979) 3 SCC 47.
This extract has been taken from Justiniano Augusto De Piedade Barreto Vs. Antonio
Vicente Da Fonseca and Otherers, (1979) 3 SCC 47.

"A special law is a law relating to a particular subject while a local law is a law confined to a
particular area or territory. Used in an Act made by Parliament the word local may refer to a
part or the whole of one of the many States constituting the Union. Though a law dealing with
a particular subject may be a general law in the sense that it is a law of general applicability,
laying down general rules, yet, it may contain a special provision relating to the bar of time, in
specified cases, different from the general law of limitation. Such a law would be a special law
for Section 29(2) 7.
 8

5. Kaushalya Rani v. Gopal Singh 1963 AIR 260, 1964 SCR (1) 982
The rule of limitation contained in Section 417(4) of the Code of Criminal Procedure of 1898 was
accordingly held to be a 'special law' in Kaushalya Rani v. Gopal Singh8. Similarly, a law which
may be a law of general applicability is yet local if, its applicability is confined to a particular area
instead of generally the whole country......"
who discharges statutory functions- is a "public authority". However, the grounds of exemption
spelled out under the RTI Act too would be attracted, wherever applicable."
 9

6. Revenue Bar Associations v. Union of Asgard 2019 W.P.Nos.21147, 21148 and 14919 of
2018
2017 relating to constitution of the Appellate Tribunal and qualification, appointment and
condition of services of its members as void, defective and unconstitutional, being violative of
Articles 14, 21, 50 of the Constitution of India, and doctrines of separation of powers and
independence of judiciary, which are parts of the basic structure of the Constitution and further
contrary to the principles laid down by the Hon'ble Supreme Court in Union of India Vs. R.Gandhi
(2010) 11 SCC 1.
 10

7. Union of India Vs. Sankalchand Himatlal Sheth, (1977) 4 SCC 193

(A) Interpretation of Statutes , — Constitutional provision – Harmonious construction –

Rule.
Per Y. V. Chandrachud, J.- Where the statute’s meaning is clear and explicit, words cannot be
interpolated. What is true of the interpretation of an ordinary statute is not any the less true in
the case of a constitutional provision, and the same rule applies equally to both. But if the
words of an instrument are ambiguous in the sense that they can reasonably bear more than one
meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read
literally, is patently incompatible with the other provisions of that instrument, the court would
be justified in construing the words in a manner which will make the particular provision
purposeful. That, in essence is the rule of harmonious construction.
(B) Constitution of India , Art.222(1)— Scope – Transfer of Judge from one High Court
to another without his consent – Propriety.
Per Majority (P. N. Bhagwati, J. and N. L. Untwalia, J. contra): There is no need or
justification, in order to uphold and protect the independence of the judiciary, for construing
Article 222 (1) to mean that a Judge cannot be transferred from one High Court to another
without his consent. The power to transfer a High Court Judge is conferred by the Constitution
in public interest and not for the purpose of providing the executive with a weapon to punish a
Judge who does not toe its line or who, for some reason or the other, has fallen from its grace.
The extraordinary power which the Constitution has conferred on the President by Art. 222 (1)
cannot be exercised in a manner which is calculated to defeat or destroy in one stroke the
object and purpose of the various provisions conceived with such care to insulate the judiciary
from the influence and pressures of the executive. (1976) 17 Guj LR 1017 (FB), Affirmed.
(Para 15 109 112 117)
Once it is appreciated that a High Court Judge can be transferred on the ground of public
interest only, the apprehension that the executive may use the power of transfer for its own
ulterior ends and thereby interfere with the independence of the judiciary, loses its force. The
hardship, embarrassment or inconvenience resulting to a Judge by reason of his being
compelled to become a litigant in his own court, cannot justify the addition of words to an
article of the Constitution making his consent a pre-condition of his transfer.(Para 16 113)
It is needless, in a broad sense, to cut down the width of the words used in Art. 222 (1) by
making the power of transfer dependent on the consent of the Judge himself. It is also needless,
in order to effectuate the object of the other constitutional provisions, to read any such
limitation into that article. The transfer of a High Court Judge without his consent will not
damage or destroy the provisions contained in the Constitution for preserving the independence
of the judiciary. It is quite correct that a Judge who is transferred to another High Court has to
take a fresh oath before he assumes the charge of his office as a Judge of the High Court to
which he is transferred. But that does not support the argument that he enters upon a new office
as a result of a fresh appointment. The Government of India Act did not contain any provision
for the transfer of a Judge. That is why it provided that the office of a Judge shall be vacated
either on the Judge being appointed to be a Judge of the Federal Court or on being appointed as
a Judge of another High Court. Art. 217 (1)
Proviso (c) itself makes a distinction between appointment and transfer. They connote two
distinct concepts and one is not to be confused with the other. The technical rules of procedure
 11

governing service conditions cannot affect the interpretation of a substantive provision like the
one contained in Art. 222 (1).(Para 27 29 95 97 106)
No one can deny that whatever measures are required to be taken in order to achieve national
integration would be in public interest. Whether it is necessary to transfer Judges from one
High Court to another in the interests of national integration is a moot point. But that is a policy
matter with which courts are not concerned directly. Considering the great inconvenience,
hardship and possibly a slur, which a transfer from one High Court to another involves, the
better view would be to leave the Judges untouched and take other measures to achieve that
purpose.(Para 31)
Judge of the High Court owe their appointment to the Constitution and hold a position of
privilege under it. There is a fundamental distinction between the master and servant
relationship as is generally understood and the relationsh between the Government and High
Court Judges.They, the Judges of the High Court, are not Government servants in the ordinary
signification of that expression.(Para 32)
In fact, that is why the Government cannot, on its own, take a unilateral decision in regard to
the appointment and transfer of High Court Judges.(Para 32 33)
Per V. R. Krishna Iyer and S.M.F. Ali, JJ. (concurring): Strictly speaking when a Judge is
transferred from one High Court to another under the clear sanction of law, namely, Article 222
(1) of the Constitution a fresh oath is not necessary. But even if on a liberal interpretation of
Art. 219 such an oath may be necessary when a Judge is transferred from one High Court to
another and before he enters in his new office as a transferee Judge, that, however, does not at
all show that a Judge cannot be transferred without his consent.(Para 106)
Per P. N. Bhagwati and N. L. Untwalia, JJ. (dissenting): It is no doubt true that the words
“without his consent” are not to be found in Cl. (1) of Art. 222, but the word “transfer” which
is used there is a neutral word which can mean consensual as well as compulsory transfer and if
the high and noble purpose of the Constitution to secure the independence of the superior
Judiciary by insulating it from all forms of executive, control or interference is to be achieved,
the word ‘transfer’ must be read in the limited sense of consensual transfer. When a Judge is
transferred from one High Court to another, he is appointed to the High Court to which he is
transferred and it is only when he assumes charge of the office of Judge of that High Court by
making and subscribing an oath or affirmation before the Governor of the State, that be ceases
to be a Judge of the High Court from where he is transferred. It is, therefore, obvious that the
volition of the Judge who is transferred is essential for making the transfer effective and there
can be no transfer of a Judge of a High Court without his consent. The transfer of an
undesirable Judge may secure public interest and his continued presence in the court from
where he is to be transferred may be an evil, but it is necessary to put up with that evil in order
to secure the larger good which flows from the independence of the judiciary. The public
interest in the independence of the judiciary must, therefore, clearly prevail and a construction
which subserves this higher public interest must be accepted.
(C) Constitution of India , Art.222(1)— Transfer of Judge from one High Court to
another – Consultation with Chief Justice of India – Nature and minimal requirements
of.
Per Majority: Art. 222 (1) is, in substance, worded in similar terms as the 1st proviso to Art.
124 92) and Art. 217 (1). It casts an absolute obligation on the President to consult the Chief
Justice of India before transferring a Judge from one High Court to another. That is in the
nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer
 12

of a High Court Judge to another High Court cannot become effective unless the Chief Justice
of India is consulted by the President in behalf of the proposed transfer. Indeed, it is
euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to
another High Court is unconstitutional unless, before transferring the Judge, the President
consults the Chief Justice of India.(Para 35)
While consulting the Chief Justice, the President must make the relevant data available to him
on the basis of which he can offer to the President the benefit of his considered opinion. If the
facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he
must ask for them because, in casting on the President the obligation to consult the Chief
Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief
Justice to express his opinion on nothing less than a full consideration of the matter on which
he is entitled to be consulted. The fulfilment by the President, of his constitutional obligation to
place full facts before the Chief Justice and the performance by the latter, of the duty to elicit
facts which are necessary to arrive at a proper conclusion are parts of the same process and are
complementary to each other. The faithful observance of these may well earn a handsome
dividend useful to the administration of justice. Consultation within the meaning of Article 222
(1), therefore, means full and effective, not formal or unproductive, consultation.(Para 37 63)
Deliberation is the quintessence of consultation. That implies that each individual case must be
considered separately on the basis of its own facts. Policy transfers on a wholesale basis which
leave no scope for considering the facts of each particular case and which are influenced by
one-sided governmental, considerations are outside the contemplation of our Constitution.
After an effective consultation with the Chief Justice of India, it is open to the President to
arrive at a proper decision of the question whether a Judge should be transferred to another
High Court because, what the Constitution requires is consultation with the Chief Justice, not
his concurrence with the proposed transfer. But in all conceivable cases, consultation with the
Chief Justice of India should be accepted by the Government of India. The Court will have an
opportunity to examine if any other extraneous circumstances have entered into the verdict of
the executive if it departs from the counsel given by the Chief Justice of India.
Article 222 (1) postulates fair play and contains built-in safeguards in the interests of
reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in
public interest only. Secondly, the President is under an obligation to consult the Chief Justice
of India which means and requires that all the relevant facts must be placed before the Chief
Justice.Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the
Judge who is proposed to be transferred, that he shall consider every relevant fact before he
tenders his opinion to the President. In the discharge of this constitutional obligation, the Chief
Justice would be within his rights, and indeed it is his duty whenever necessary to elicit and
ascertain further facts either directly from the Judge concerned or from other reliable sources.
The executive cannot and ought not to establish rapport with the Judges which is the function
and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned
cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed.
(D) Constitution of India , Art.222(1), Art.226— Transfer of a High Court Judge from
one High Court to another – Consideration of the order of transfer being made in
violation of the principles of natural justice- Such a consideration is out of place in the
scheme of Art. 222 (1) – Principles of natural justice explained. AIR 1967 SC 1269 and
AIR 1970 SC 150, Followed.
(Obiter) (Per Y. V. Chandrachud, J.)(Para42) (Para 42)
 13

(E) Constitution of India , Art.226, Art.222(1)— Bias – Writ petition by a High Court
Judge against order of his transfer to another High Court – Objection by Government of
India to the hearing of the case by Judges constituting special Bench – Objection was
improper – Position and function of Judge pointed out.
(Obiter). (Per P. N. Bhagwati, J.)(Paras4750) (Para 47 50)
(F) Interpretation of Statutes , — Meaning of words – Rule of construction.
Per P. N. Bhagwati, J: The words of a statut must be understood in the sense which the
legislature has in view and their meaning must be found not so much in a strictly grammatical
or etymological propriety of language, nor in its popular use, as in the subject or the occasion
on which they are used and the object to be attained. The words used in a statute cannot be read
in isolation: their colour and content are derived from their context and, therefore, every word
in a statute must be examined in its context.(Para 55)
(G) Constitution of India , Art.50— Scope.
Per P. N. Bhagwati, J: Art. 50 has been described as “the conscience of the Constitution” 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.(Para 52)
(H) Interpretation of Statutes , — Legislative history – Reference to – Value of.
Per V. R. Krishna Iyer and S. M. F. Ali JJ.: Legislative history plus, within circumspect limits,
may be consulted by courts to resolve ambiguities, warning themselves that the easy abuses of
legislative history and like matrix material may lead to the vice of occult uncertainty and
wresting or legislative power from where it belongs. While understanding and interpreting a
statute, a fortiori a constitutional Code, the roots of the past, the foliage of the present and the
seeds of the future must be within the ken of the activist Judge.(Para 81 82)
While it is true that judicial interpretation should not be imprisoned in verbalism and words
lose their thrust when read in vacua, Court must search for a reliable scientific method of
discovery rather than the speculative quest for the spirit of the statute, and the cross-thoughts
from legislators’ lips or Law Commissioner’s pens. They edify but are not edictal.(Para 83)
(I) Constitution of India , Art.136— Appeal under – Duty of Court.
Per V. R. Krishna Iyer and S. M. Fazal Ali JJ.: The highest court with constitutional authority
to declare the law cannot shrink from its obligation because the lis which has activised its
jurisdiction has justly been adjusted. Moreover, full debate at the bar must be followed by fair
judicative declaration.
Per P. N. Bhagwati, N. L. Untwalia JJ.: When the questions involved in appeal under Art. 136
are of great constitutional and public importance, the Court must express its opinion on the
same notwithstanding the fact that the appeal is disposed of according to the agreed formula
arrived at between the parties at the close of the hearing of the arguments.
 14

8. Supreme advocate on record association & anr. Vs uoi, (1993) supp 2 scr 659

BENCH
Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian
Joseph, Justice Adarsh Kumar Goel.

INTRODUCTION
The Supreme Court Advocates and Record Association case is famously known as “second
judges’ case”. The case is based on the independence of Judiciary as the part of basic structure
of the Constitution of India.

To secure the ‘rule of law’ which is essential for the preservation of the democratic system, the
broad scheme of separation of powers was adopted in the Constitution of India, together with
the directive principle of state policy for the separation of judiciary from executive.

The case was decided on 6 October, 1993 and after the judgment on second judges case, the
collegium system was adopted for the appointment of the judges of Supreme Court and High
Courts of India.

The bench mainly examined the position of the Chief Justice of India with reference to
primacy, and justifiability of fixation of Judge strength.

FACTS
The case was filed as a writ petition before the Apex Court. it brought into reconsideration the
controversial judgment of the S.P. Gupta’s Case, although the nine-Judge Bench overruled the
case.
The case was mainly regarding the primacy of the opinion of Chief Justice of India in the
appointments of Supreme Court and High Courts of India in the interest of “protecting the
integrity and independency of the judiciary,
It was argued before the Hon’ble Court that the interference of the executive in judiciary’s
domain must be minimized and thus the recommendation of the Chief Justice of India should
not be ignored.
The bench delivered the judgment with a majority of 7:2 and also expanded the meaning of the
word ‘consultation’ by equating it with ‘concurrence’.
The contested convention in the case was the role of the judiciary in the appointment process.
ISSUES
Whether the establishment convention can be read in Article 124(2) and Article 217(1) of the
Constitution of India to the effect that judiciary has primacy over the executive in the
appointment procedure of the judges of Supreme Court and High Court of India?

JUDGMENT
On the question of primacy, the court conclude that the role of the Chief Justice of India in the
matter of appointments to the Judges of the Supreme Court is unique, singular and primal, but
participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he
nor the Executive can push through an appointment in derogation of the wishes of the other.
 15

9. Supreme court advocates on record association v. Union of Asgard, 2015) air 2015 sc 5457

Facts
The constitutional validity of the NJAC Act and the 99th Amendment Act was challenged
through this group of petitions before a five Judge Constitution Bench. The NJAC was set up
for selection, appointment, and transfer of the judges to the higher judiciary to replace the
prevailing collegium system under Articles 124(2) and 217(1) of the Constitution. The NJAC
included the Union Minister for Law and Justice and two eminent persons, besides the Chief
Justice of India, and next two senior most judges in the Supreme Court. The collegium, which
the NJAC proposed to supplant, included the Chief Justice of India and a forum of the four
senior-most judges of the Supreme Court. 
 
Issue
a. Whether the NJAC Act and the 99th Amendment Act were constitutionally valid.
 
Arguments
Regarding the need for increased transparency and accountability, the Attorney General, on
behalf of the Respondents asserted that the manner of selection and appointment of the Judges
to the higher judiciary must be known to civil society as they have the right to know. He
referred to a range of precedents to buttress the existence of the right to know as part of the
fundamental right to freedom of speech and expression, including Indian Express Newspapers
vs. Union of India ((1985) 1 SCC 641), Attorney General vs. Times Newspapers Ltd. (1973 3
All ER 54) and State of U.P. vs. Raj Narain ((1975) 4 SCC 428). The Attorney General pointed
out that the NJAC would come within the ambit of RTI Act, to help remove the opacity of the
prevailing collegium system and introduce fairness as well as a degree of meritocracy. He also
submitted that the NJAC would diversify the selection process in order to ensure accountability
and that the NJAC would introduce transparency in the process of selection and appointments
of judges. 
 
Decision
The Court by a majority of 4:1 struck down the 99th Amendment and consequently the NJAC
Act as unconstitutional and void. The majority including Justices Khehar, Lokur, Goel and
Joseph, held that the involvement of the executive in the appointment of judges impinged upon
the primacy and supremacy of the judiciary, and violated the principle of separation of powers
between the executive and judiciary which formed part of the basic structure of the
Constitution. However, Justice Chelameswar in his dissenting opinion disagreed that the NJAC
was unconstitutional. He pointed out that though judicial independence formed a part of the
basic structure, there was an abundance of opinion that suggested that primacy to the opinion
of the judiciary was not the only way for establishing an independent and efficient judiciary
and that it was neither a norm nor a fundamental aspect of the Constitution. He added,
‘Independence of such fora rests on two integers - independence of the institution and of
individuals who man the institution’. 
While the majority judgment revived the collegium system, it acknowledged that the system
had to be streamlined to make it more responsive and transparent. However, Justice
Chelameswar observed that the present collegium system lacks transparency, accountability
 16

and objectivity, and barring occasional leaks, the public had no access to information relating
to it. He noted that the proposed composition of the NJAC could have acted ‘as a check on
unwholesome trade-offs within the collegium and incestuous accommodations between
Judicial and Executive branches.’ 
While analysing the issue of transparency and accountability in the NJAC framework, Justice
Lokur observed that the 99th Amendment and the NJAC Act did not take into account the
privacy concerns of individuals who had been recommended for appointment as a judge.
Referring to the contentions made by the Attorney-General in this regard, he noted that given
that proceedings of the NJAC would be completely accessible and if sensitive information
about the recommended individual were made public, it would have a serious impact on the
dignity and reputation of the recommended individual. Highlighting the need to balance
transparency and confidentiality, he rejected the Attorney-General’s contention that the right to
know was a fundamental right, and asserted that it was an implicit fundamental right, which
was tethered to the implicit fundamental right to privacy and the two implicit rights needed to
be balanced. 
Further, Justice Lokur also highlighted privacy concerns in the working of the NJAC. He
observed that in a situation where information was voluntarily supplied by the candidate, they
might not have an absolute right to privacy but might expect that information shared in
confidence would not be disclosed to unconcerned third parties. Further, in case the President
did not accept the recommendation, the candidate should have the right to non-disclosure of the
information supplied by the President, suggested Justice Lokur. He noted that the 99th
Amendment and NJAC Act were oblivious to these concerns and did not incorporate any
measures required for balancing the two implicit fundamental rights. He concluded by stating
that adequate thought had not been given to the privacy concerns of the candidates, and
‘merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a
dhobi-ghat.’
 17

10. Manohar Lal Sharma vs The Principal Secretary & Others on 25 August, 2014
This extract has been taken from Manohar Lal Sharma vs The Principal Secretary & Others
on 25 August, 2014
Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, Supreme Court held that the entire
allocation of Coal Blocks made between 1993 and 2011, except those which were made through
competitive bidding, were invalid, unfair arbitrary and violative of Article 14 of the Constitution of India.

Further orders passed in the case of Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC
614, this Court quashed all Coal Block allocations made by the Central Government between 1993
and 2011.
Court also accepted the submission of the Attorney General that the allottees of the Coal Blocks
other than those covered by the judgment and the four Coal Blocks covered by the subsequent
order, must pay an amount of Rs 295/ per metric ton of coal extracted as an additional levy.
Further, Centre vide allotment order again allocated Pachhwara Captive Coal Block in favour of
PSPCL.
On facing acute shortage of coal for paddy season, PSPCL entered into a transitory agreement and
with EMTA later published Notice inviting Global Tender, inviting bids for the appointment of
Mine Developer-cum-Operator, for supply of coal.
EMTA in view of the above facts, filed a petition before the Punjab and Haryana High Court
challenging the said NIT.
Analysis, Law and Decision
Firstly, the Court referred to Section 11 of the Coal Mines (Special Provisions) Act, 2015.
“11. Discharge or adoption of third-party contracts with prior allottees.—
 Notwithstanding anything contained in any other law for the time being in force, a successful bidder
or allottee, as the case may be, in respect of Schedule I coal mines, may elect, to adopt and continue such
contracts which may be existing with any of the prior allottees in relation to coal mining operations and the
same shall constitute a novation for the residual term or residual performance of such contract: 
Provided that in such an event, the successful bidder or allottee or the prior allottee shall notify
the nominated authority to include the vesting of any contracts adopted by the successful bidder. 
 In the event that a successful bidder or allottee elects not to adopt or continue with existing contracts
which had been entered into by the prior allottees with third parties, in that case all such contracts which
have not been adopted or continued shall cease to be enforceable against the successful bidder or allottee in
relation to the Schedule I coal mine and the remedy of such contracting parties shall be against the prior
allottees.”
Bench stated that, it is a settled principle of law that when, upon a plain and literal interpretation of
the words used in a Statute, the legislative intent could be gathered, it is not permissible to add
words to the Statute.
Equally, such an interpretation which would make some terms used in a Statute otiose or
meaningless has to be avoided.
 18

In view of the above stated, Bench added that considering Section 62 of the Contract Act, 1872
read with Section 11 of the said Act, it has observed that the parties to a contract may willingly
agree to substitute a new contract or to rescind it or alter it.
Observing the above, Court added that the High Court erred in observing that EMTA had a
legitimate expectation.
Hence, the High Court’s reasoning was totally wrong.
Bench further opined that High Court’s reasoning that PSCPCL was within its right to reject the
arrangement if the performance of EMTA was unsatisfactory or if there was any other factor which
the Corporation found relevant enough to discard the arrangement altogether was totally
erroneous/ 
Supreme Court’s observation:
Merely because the Coal Mine Block was allotted to PSPCL, the same could not give any vested
right in favour of EMTA, particularly in view of Section 11 of the Act.
 High Court erred in forcing PSPCL to continue with the contract with EMTA, though it was not
willing to do so.

11. A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988

 19

Introduction
This is a case between a Chief Minister whose fundamental right has been violated, and a
person with political affiliation, where the Supreme court gave the landmark judgment stating
that the directions given by the court breached Section 7(1) of the Criminal Law (Amendment)
Act, 1952 and was violative of Fundamental Rights of the appellant under Article 14 and 21 of
the constitution.

Background of the case

Before the landmark judgment of A.R Antulay v. R.S Nayak[i], the court did not have the
awareness on the nature of the jurisdiction of the Special court and gave directions. But after
the judgment in 1988, it was specified that the Supreme Court cannot transfer corruption case
to a High court judge. Later, in 2014 in Sahara’s case[ii], Supreme Court found that Antalya’s
case to be an irrelevant precedent for that case and the 1988 judgment should be used as a
precedent, confined to the facts and circumstance of the cases.

Facts
The appellant was the Chief Minister of Maharashtra from June 1980. On 1st September 1981,
a person from Bharatiya Janata Party applied to the Governor of the state under Section 197 of
the Criminal Procedure Code of, 1973 and Section 6 of the Prevention of Corruption Act, 1947
for the sanction to bring the suit against the appellant. Subsequently, the respondent filed a
complaint in the Additional Metropolitan Magistrate, Bombay opposing the appellant and
others for offences under Section 161,165 and also 384 and 420 read with Sections 109 and
120 B of the Indian Penal Code and Section 5 of the Prevention of the Corruption Act. The
Magistrate refused to take the judicial notice for the offences without the sanction for
prosecution. After this, a revision was filed in the High Court of Bombay. Thereafter the
appellant on 12th January 1982 resigned the position of Chief Minister with respect to the
judgment given by the Bombay High Court.

Then in July 1982 the Governor Sanctioned 3 subject out of five items and refused to sanction
all other items. Then a fresh complaint was lodged before the Special judge with many more
allegations including the allegation rejected by the Governor. The Special Judge, Shri P.S.
Bhutta issued processed to the appellant without depending on the sanction order gave by the
Governor. On 28th October 1982, Shri P.S. Bhutta rejected the appellant’s objection regarding
the jurisdiction and specified 3 Special Judges of that area to try such cases. The State
Government appointed R.B.sule as a Special Judge. The Special judge discharged the appellant
stating that a member of the Legislative Assembly is a Public Servant and there was no valid
sanction to bring legal proceedings against him.

On 16th February 1984, an appeal was filed under Article 136 and the constitution bench of the
Supreme Court held that the member of the legislative assembly is not a public servant and
revoked the order of the Special judge. Instead of returning the case to a Special judge for
disposal in accordance with the law, the Supreme Court suo moto withdrew the special case
from the court of a Special judge and the transferred to the Bombay high court.
 20

Issues
Whether the directions given by the court in February 1984, breach Section 7(1) of the act of
1952?
Whether the decision is violative of Articles 14 and 21 of the Constitution?

Judgment

The judgment, in this case, was by a seven-judge bench in the Supreme Court. The judgment
was given in the ration of 4:3 favouring the appellant. The court stated that the transfer of
criminal cases and the Supreme Court to transfer cases and appeals are given under Section 406
of the Criminal Procedure Code. The law provides that the court may direct any particular case
or appeal from one High court to another High court or from a subordinate Criminal court to a
High court or a subordinate Criminal court to one High court to another Criminal court of equal
or upper-level jurisdiction to another High court. Similarly, Section 407 of the Criminal
Procedure Code deals with the power of the High court to transfer cases.
Section 6 of the Criminal Law (Amendment) Act, 1952 allows the State Government to appoint
as many as Special Judges needed for a particular area for a specified offence. Section 7 of the
Criminal Law (Amendment)Act, 1952 emphasizes on the triable by Special Judges. The issue
here is whether the transfer made by the court is valid or not. Section 7(1) of the Criminal Law
(Amendment) Act, 1952 provides a condition for the trial of offenders under Section 6(1) of
the Criminal Law (Amendment) Act, 1952. Thus, the offences under Section 6(1) of the Act
are punishable under the Indian Penal Code and Prevention of Corruption Act, 1947.
Therefore, the order of the court transfer cases to the high court was not permitted by law. The
Supreme Court through its directions cannot advise the High Court to take cases that are not in
its jurisdictions.
In direct, the Supreme Court clearly does not have jurisdiction to transfer cases to itself. Only
the parliament by law has the power to create or increase the jurisdiction and no other Court
superior or inferior has that power. In this case, the appellant has been treated differently from
other offenders. The appellant has the right not to be separated to use the special court for his
purpose all these are included in Article 14 of the constitution – Right to Equality. Further, the
appellant has the right under Article 21 of the Constitution to take a trial by a Special Judge
under Section 7(1) of the Criminal Law (Amendment) Act, 1952 which is established by law
and the appellant has the right not to suffer due to any order passed by the Court in violation of
natural justice. Section 374 of the Criminal Procedure Code gives a right to appeal.
A specific clause of a specific regulation is given for trial by a special judge alone and transfer
of such cases can be done by once a judge to another special judge. The High Court does not
have the power to transfer such cases under Section 6 of the Criminal Law (Amendment) Act,
1952. Thus, it is very clear that the provision under Section 7(2) Criminal Law (Amendment)
Act, 1952, and Article 14 and 21 of the constitution is been violated and legally wrong due to
the directions given by the court.

12. M.C Metha v. Union of Asgard 1987 AIR 1086, 1987 SCR (1) 819
Introduction:
 21

This case lies between C. Mehta and Anr V Union of India. It is popularly known as Taj
Trapezium case. The writ petition was filed by M.C. Mehta, along with the petition a report
was attached.
This report was on “Environmental Impact of Mathura Refinery” (Varadharajan Committee).
It was published in the year 1978 b the Government of India. In the Taj Trapezium zone (TTZ),
the sources of pollution were indicated in the reports of the experts.

Background of the Case:

Taj is considered as one of the best Mughal architecture in India. The defined area of 10400
sqkm was built around the taj mahal to protect the monument from pollution. Such area was
known as Taj Trapezium Zone
The Trapezium shaped area around Taj Mahal is covering 5 districts in the region of Agra. In
the year 1983, it was declared as a UNESCO World Heritage Site.
M.C. Mehta was a public interest Lawyer who visited Taj Mahal in the year 1984.
He saw that the Taj Mahal’s Marble was turning yellow. Due to widespread pollution by the
nearby industries, the monument was a bit pitted as well as a result of which he filed a petition
in the Supreme Court.

Facts of the Case:

It was stated by the petitioner that the reasons behind the monument's degradation were the
chemical industries, refinery, and the foundries. Various emissions of gases like Sulphur-
dioxide with oxygen led to damage of the monument. This mixture turned into the acid rain,
due to which the moisture in the atmosphere was retained which resulted into “Acid rain”.
Such rains where harmful for the marbles which were laid on the Taj Mahal. This was slowly
damaging the monument. The damage was quite visible, as it turned out to be a yellow pallor
on the marbles.
At some other places on Taj Mahal, there were brown and black spots as well they were easily
magnified with the yellow spots.
If the damage had not been considered seriously and immediately it would lead serious danger
to the monument. It was on its way of degradation due to the harmful effects of the pollution.
Some of the effective measures needed to be taken to save the Taj Mahal from disrupting its
reputation internationally.
The petitioner therefore requested the court to take measures for the preservation of the
monument.
A report named “Inventory and Assessment of Pollution Emission in and Around Agra-
Mathura Region” was publised by the Central Board for Prevention and Control of Water
Pollution. They declared some level of pollution via statistics, which resulted to be very high.
The report also stated some measures. According to report 2, thermal power stations needed to
be closed down. Along with that they needed to be replaced with by diesel in railway yards.
The emissions of Sulphar dioxide needed to be cut down upto 50%.

Principles and Laws pertaining to this Case:

 22

The Precautionary Principle was taken in to consideration. In this principle certain environment
measures were taken by the state government and the statutory authorities. According to this
principle anticipation, prevention and attack are the causes of environmental degradation. In
case of serious and irreversible damage, lack of scientific certainity should not be considered a
reason for postponing the measures to prevent environmental degradation.
The polluters pay principle was defined in the case of Vellore Citizens Welfare Forum v Union
of India. According to this principle, the liability for harm to the environment extends not only
towards compensation but also to restore the environmental degradation.
The three enactments were considered :The Water (prevention and Control of pollution) Act,
1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act)
and the Environment protection Act, 1986 (the Environment Act).
Article 21 of the constitution of India guarantees protection of life and personal liberty. Also,
Article 47, 48A and 51A(g) of the constitution state that raising the standard of public health
and protection of natural environment.

Supreme Court's Observation and Judgement:

Taj was moving towards its destruction and damage; such deterioration was well
acknowledged by the court. The court also keenly observed that such damage was not only by
the traditional causes but there were other various socio and economic factors.
Different expert athorities submitted various reports by stating the air pollutants generated from
industries have harmful effect on the marble of Taj Mahal. It is also affecting the people living
in the Taj trapezium zone. The pollution in TTZ has to be reduced.
The court ordered that, the industries which are not in the position to obtain gas connections
shall stop its functioning with the aid of coke/coal in TTZ and they may have to relocate
themselves.
The applications for the grant of gas connections will be finalized by the Gas Authority Of
India Limited (GAIL).
The court futher stated that 292 Industries shall change over the natural gas as an industrial
fuel. The court also gave certain rights and benefits to the workmen employed in these 292
Industries.
The workmen shall continue of employment at the new town and place where the industry is
shifted. The period between the closure of the industry in Agra and its restart at the place of
relocation shall be treated as active employment and the workmen shall be paid.
 23

13. University of Kerala v. Council, Principals Colleges, Kerala 11 February 2009

This extract has been taken from University of Kerala v. Council, Principals Colleges, Kerala
11 February 2009
It was held that the conferment of judicial power under Articles 141, 142, 32 and 226 has been
plenary and very wide and enable the Supreme Court to declare the law which shall be binding on
all the courts within the territories of India and Article 142 enables the Supreme Court to pass such
order as is required to do complete justice in the case.
 24

14. Golak Nath v. State of Punjab

This extract has been taken from Golak Nath v. State of Punjab
Supreme Court had expressed its view on the significance of such an absolute power in Golak Nath
v. State of Punjab19, by stating that the law declared by this Court is the law of the land. To deny
this power to this Court on the basis of some outmoded theory that the Court only finds law but
does not make it, is to make ineffective the powerful instruments of justice placed in the hands of
the highest judiciary of this country.
PETITIONER: I.C GOLAKNATH & ORS
RESPONDENT: STATE OF PUNJAB
DATE OF JUDGEMENT: 27/02/1967
BENCH: RAO, K. SUBBA (CJ), WANCHOO K.N, HIDAYATULLAH. M, SHAH J.C, SIKRI S.M,
BACHAWAT R.S, RAMASWAMI V, SHELAT, J.M, BHARGAVA, VASHISHTH, MITTER, G.K,
VAIDYALINGAM C.A.
JUDGEMENT : In this case, at that time the supreme court had the largest bench ever. The ratio of the
judgment was 6:5, majority was favouring the petitioners. The CJI at that time and with other justices (J.C.
Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam) wrote the majority opinion. Justice Hidayatullah agreed
with CJI Subba Rao and therefore he wrote a separate opinion. Whereas Justices K.N. Wanchoo, Vishistha
Bhargava and G.K Mitter they all wrote single minority opinion and justices R.S. Bachawat & V.
Ramaswami wrote separate minority opinions.
The majority opinion of golakh Nath shows scepticism in their minds about the then course of parliament.
Since 1950 the parliament has used article 368 and have passed a number of legislations that had in one or
other way have violated the fundamental rights under part III of the constitution. The majority had doubts
that if Sajjan Singh remained the law of the land, a time can come when all fundamental rights adopted by
our constituent assembly will be changed through amendments. Keeping in view the problem of
fundamental rights and fearing that there can be a transfer of Democratic India into totalitarian India.
Therefore, the majority overruled Sajjan Singh & Shankari Prasad. 
The majority said that the parliament has no right to amend the fundamental rights. These are fundamental
rights are kept beyond the reach of parliamentary legislation. Therefore, to save the democracy from an
autocratic actions of the parliament the majority held that parliament cannot amend the fundamental rights
enshrined under Part III of the Constitution of India The majority said that fundamental rights are the same
as natural rights. These rights are important for the growth and development of a human being.
 25

15. Union Carbide Corporation v. Union of Asgard AIR 273, 1989 SCC (2) 540 (Bhopal Gas
Tragedy)
This extract has been taken from Union Carbide Corporation v. Union of Asgard AIR 273,
1989 SCC (2) 540 (Bhopal Gas Tragedy)
The Supreme Court had stated that in exercising powers under Article 142 and in assessing the
needs of complete justice of a cause or matter, the apex Court will take note of the express
prohibitions in any substantive statutory provision based on some fundamental principles of public
policy and regulate the exercise of its power and discretion accordingly. The proposition does not
relate to the powers of the Court under Article 142, but only to what is or is not complete justice of
a cause or matter and in the ultimate analysis of the propriety of the exercise of the power.
Citation -1992 AIR 248, 1991 SCR Supl. (1) 251
Court – The Supreme Court of India
Bench – Venkatachaliah, M.N. (J)
The courts in India in the case of Union Carbide Corporation v. UOI, also known as the infamous
Bhopal gas leak case, reiterated the principles of strict liability and absolute liability. A highly
toxic gas, methyl isocyanate, escaped the premises of Union Carbide Limited (UCIL) harming a
massive population along with the flora and fauna. As an aftermath of this tragedy, the
Environment Protection Act, 1986 and the Public Insurance Liability Act, 1991 were enacted to
prevent such catastrophe. It even widened the scope of Article 21 of the Indian Constitution, which
guarantees every person the Right to Life and Personal Liberty. This right includes the
fundamental Right to  Live in a Pollution Free  Environment for their full enjoyment of life as was
held in the case of Subhash Kumar v. State of Bihar(1991) The constitutional provisions
incorporated under Article 39(b), 47, 48, 48A, 49, 51A(g) impose a duty on the citizens and the
state to protect the environment.
Facts of the case
In the year 1934, American Industrial giant Union carbide incorporated with the Union of India to
form Union Carbide India Limited (UCIL), in which Union Carbide was a majority shareholder
holding a stake of 51%. The main objective of the company was to manufacture chemicals,
batteries, pesticides and other industrial products. A new plant of UCIL was incorporated in a
densely populated area of Bhopal, Madhya Pradesh in the year 1970. On the night of 2nd
December 1984, the havoc of gas leak spread unleashed upon the people of Bhopal. Methyl iso-
cynate escaped the parameters of the factory killing 2600 people instantly and leaving thousands of
them injured. Later reports disclosed the count of people who died reached 20,000 and around
60,000 people suffered irrecoverable physical damage.
The zone wherein the plant was situated was for light industrial and commercial utility, not for
dangerous industry. The plant was initially approved only to formulate pesticides in relatively
small quantities. The government was apprehensive in implementing strict liability despite the
principle being in existence since the Stockholm Conference came into existence.
The Union of India immediately enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act,
1985 (the Bhopal Act) for speedy trial of this case and to prevent the accused from escaping
 26

liability. The Union of India tried to litigate the case before the foreign courts but the foreign
courts dismissed their petition citing a jurisdictional conflict. 
The District Court awarded a sum of 350 million as interim compensation to the victims of the
accident which was reduced by the High Court to 250 million. The dissatisfaction amongst the
families of the victim led the Supreme Court to increase the amount of compensation to 470
million.
The applicants were still dissatisfied and filed a petition for increasing the compensation amount
along with continuing the criminal charges levelled against Union Carbide.
 27

16. R. P. Luthra vs Union of India & Anr. on 1 March, 2017

This extract has been taken from R. P. Luthra vs Union of India & Anr. on 1 March, 2017
The letter written by four senior most judges of the apex court -- Justices J Chelameswar, Ranjan
Gogoi, MB Lokur and Kurian Joseph -- said “when the MoP was the subject matter of a decision
of a Constitution Bench of this court, in Supreme Court Advocates-on-record Association and Anr
Vs Union of India, it is difficult to understand as to how any other bench could deal with the
matter”.
The four judges in their letter said, “Any issue with regard to MoP should be discussed in the Chief
Justices’ conference and by the full court. Such a matter of grave importance, if at all required to
be taken on the judicial side, should be dealt with by none other than a constitution bench.
MS. G. ROHINI, CHIEF JUSTICE:
JUDGMENT FROM INDIAN KANOON:
1. The unsuccessful petitioner in W.P.(C) No.4229/2016, who is a practicing advocate, is the
appellant before us.
2. The said writ petition was filed challenging the recommendation of four names by the Supreme
Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments
passed by the Supreme Court from time to time with regard to mechanism of appointment of
judges are unconstitutional.
3. The writ petition was dismissed by the learned Single Judge by order dated 13.05.2016
observing:-
"Consequently, this court is of the opinion that a High Court cannot declare Supreme Court's
judgment as per incuriam.
Further, the Constitution Bench of the Supreme Court vide order dated 19th November, 2015 while
reserving the order had stated that the process of appointment of Judges by the Collegium System
need not remain on hold. Consequently, the argument that no recommendation could have been
made without finalizing of memorandum of procedure is not correct.
A Division Bench of this Court in D. K. Sharma (supra) has also held that the question of
suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ
proceeding.
Consequently, present writ petition and applications being bereft of merits are dismissed.''
4. Assailing the said order, it is contended by the appellant/writ petitioner, who appeared in person
that the order under appeal is erroneous and liable to be set aside not only on the ground that the
same is contrary to the facts and law but also on the ground that the same had been passed without
affording adequate opportunity to the petitioner to argue the matter.
5. Referring to the fact that the name of a practicing Advocate has been recommended by the
Collegium by the impugned recommendation, it is also contended that the said recommendation,
without considering the candidature of the appellant/petitioner who is a practicing lawyer and
eligible for being considered for appointment as a Judge of the Supreme Court or High Court as
 28

well as the other similarly placed lawyers, is in violation of the fundamental rights guaranteed
under Articles 14, 16, 19 and 21 of the Constitution of India.
6. It is also vehemently contended by the appellant that the conclusion of the learned Single Judge,
on the basis of the judgment of the Division Bench dated 08.04.2011 in W.P.(C) No.2231/2011
titled D.K.Sharma Vs. Union of India & Ors., that the question of suitability or merits of a
candidate cannot be made a subject matter of judicial review in a writ proceedings, is erroneous.
According to the appellant, the recommendation of the Collegium being an administrative act is
open to judicial review under Article 226 of the Constitution of India. In support of the said
submission, the petitioner relied upon Centre for PIL & Anr. Vs. Union of India & Anr. AIR 2011
SC 1267.
7. We have also heard Sh.Sanjay Jain, the learned ASG who appeared for the respondent
No.1/Union of India.
8. The first contention of the appellant that the Collegium should not have made the
recommendation without finalizing the Memorandum of Procedure for improvement of the
Collegium System of appointment of judges suggested by the Constitution Bench of the Supreme
Court vide judgment dated 16.10.2015 in W.P.(C) No.13/2015 titled Supreme Court Advocates-
on-Record Association & Anr. Vs. Union of India & Ors. is without any substance in the light of
the order of the Constitution Bench dated 19.11.2015 in which while reserving the order, it was
made clear that the process of appointment of Judges by the Collegium system need not remain on
hold.
9. The further contention that the impugned recommendation is violative of Articles 14, 16, 19 and
21 of the Constitution of India on the ground that the candidature of the petitioner who is also
eligible to be appointed as a Judge was not considered by the Collegium is equally untenable and
liable to be rejected in the light of the settled legal position that there is a basic difference between
'eligibility' and 'suitability'. As held in Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC
273, the appointment of a Judge of the High Court/Supreme Court requires 'consultation' and
fitness of a person to be appointed is evaluated in the consultation process. Thus, it is clear that the
evaluation of the worth and merit of a person is a matter entirely different from eligibility of a
candidate for elevation. It was also made clear in the said decision that it is only in the cases of
eligibility that the mechanism of judicial review can be invoked and not otherwise. Therefore, the
contention of the appellant with regard to judicial review of the impugned recommendation of the
Collegium is also liable to be rejected.
10. It may also be added that the names recommended by the Supreme Court Collegium under the
impugned recommendation have already been accepted and they have been appointed as the
Judges of the Supreme Court by the President of India. Hence, Article 124(4) is attracted and
therefore, on that ground also the order under appeal dismissing the writ petition warrants no
interference.
11. The contention with regard to the binding nature of the law declared by the Supreme Court
under Article 141 of the Constitution of India needs no consideration since prayer (C) and (D) in
the writ petition have not been pressed by the appellant.
12. The appeal is devoid of merit and accordingly the same shall stand dismissed.
CHIEF JUSTICE SANGITA DHINGRA SEHGAL, J MARCH 01, 2017 'anb'
 29

17. SC Advocate-on record association v. Union of Asgard AIR 2016 SC 5457

The 99th constitutional amendment act of 2014 and the national judicial appointments commission
Act of 2014 have replaced the collegium system of appointing judges to the supreme court and
high Court with a new body called the national judicial appointments commission (najc). however,
in 2015 the supreme court has declared both the 99th constitutional amendment as well as NJAC
act as Unconstitutional and void .consequently ,the earlier collegium system became operative
again. This Verdict was delivered by the supreme court in the fourth judges case (2015). the court
opined that: The new system (i.e.,njac) would affect the independence of the judiciary.
Facts
The constitutional validity of the NJAC Act and the 99th Amendment Act was challenged through
this group of petitions before a five Judge Constitution Bench. The NJAC was set up for selection,
appointment, and transfer of the judges to the higher judiciary to replace the prevailing collegium
system under Articles 124(2) and 217(1) of the Constitution. The NJAC included the Union
Minister for Law and Justice and two eminent persons, besides the Chief Justice of India, and next
two senior most judges in the Supreme Court. The collegium, which the NJAC proposed to
supplant, included the Chief Justice of India and a forum of the four senior-most judges of the
Supreme Court. 
 
Issue
Whether the NJAC Act and the 99th Amendment Act were constitutionally valid.
 
Arguments
Regarding the need for increased transparency and accountability, the Attorney General, on behalf
of the Respondents asserted that the manner of selection and appointment of the Judges to the
higher judiciary must be known to civil society as they have the right to know. He referred to a
range of precedents to buttress the existence of the right to know as part of the fundamental right to
freedom of speech and expression, including Indian Express Newspapers vs. Union of India
((1985) 1 SCC 641), Attorney General vs. Times Newspapers Ltd. (1973 3 All ER 54) and State of
U.P. vs. Raj Narain ((1975) 4 SCC 428). The Attorney General pointed out that the NJAC would
come within the ambit of RTI Act, to help remove the opacity of the prevailing collegium system
and introduce fairness as well as a degree of meritocracy. He also submitted that the NJAC would
diversify the selection process in order to ensure accountability and that the NJAC would introduce
transparency in the process of selection and appointments of judges. 
 
Decision
The Court by a majority of 4:1 struck down the 99th Amendment and consequently the NJAC Act
as unconstitutional and void. The majority including Justices Khehar, Lokur, Goel and Joseph, held
that the involvement of the executive in the appointment of judges impinged upon the primacy and
supremacy of the judiciary, and violated the principle of separation of powers between the
 30

executive and judiciary which formed part of the basic structure of the Constitution. However,
Justice Chelameswar in his dissenting opinion disagreed that the NJAC was unconstitutional. He
pointed out that though judicial independence formed a part of the basic structure, there was an
abundance of opinion that suggested that primacy to the opinion of the judiciary was not the only
way for establishing an independent and efficient judiciary and that it was neither a norm nor a
fundamental aspect of the Constitution. He added, ‘Independence of such fora rests on two integers
- independence of the institution and of individuals who man the institution’. 
While the majority judgment revived the collegium system, it acknowledged that the system had to
be streamlined to make it more responsive and transparent. However, Justice Chelameswar
observed that the present collegium system lacks transparency, accountability and objectivity, and
barring occasional leaks, the public had no access to information relating to it. He noted that the
proposed composition of the NJAC could have acted ‘as a check on unwholesome trade-offs
within the collegium and incestuous accommodations between Judicial and Executive branches.’ 
While analysing the issue of transparency and accountability in the NJAC framework, Justice
Lokur observed that the 99th Amendment and the NJAC Act did not take into account the privacy
concerns of individuals who had been recommended for appointment as a judge. Referring to the
contentions made by the Attorney-General in this regard, he noted that given that proceedings of
the NJAC would be completely accessible and if sensitive information about the recommended
individual were made public, it would have a serious impact on the dignity and reputation of the
recommended individual. Highlighting the need to balance transparency and confidentiality, he
rejected the Attorney-General’s contention that the right to know was a fundamental right, and
asserted that it was an implicit fundamental right, which was tethered to the implicit fundamental
right to privacy and the two implicit rights needed to be balanced. 
Further, Justice Lokur also highlighted privacy concerns in the working of the NJAC. He observed
that in a situation where information was voluntarily supplied by the candidate, they might not
have an absolute right to privacy but might expect that information shared in confidence would not
be disclosed to unconcerned third parties. Further, in case the President did not accept the
recommendation, the candidate should have the right to non-disclosure of the information supplied
by the President, suggested Justice Lokur. He noted that the 99th Amendment and NJAC Act were
oblivious to these concerns and did not incorporate any measures required for balancing the two
implicit fundamental rights. He concluded by stating that adequate thought had not been given to
the privacy concerns of the candidates, and ‘merely on the basis of a right to know, the reputation
of a person cannot be whitewashed in a dhobi-ghat.’
 31

18. S. P. Gupta v. Union of India 1981

This extract has been taken from S. P. Gupta v. Union of India 1981
A petition was filed in 1982 in the Supreme Court of India. This case is known as the S.P.Gupta
Case or First Judges case. The Supreme Court discussed 2 major points during the proceedings of
this case. When asked the Supreme Court of India whether the word “consultation” in the
constitutional article 124 mean “concurrence”; the Supreme court overruled this and denied saying
that Consultation does not mean concurrence. The President was not bound to make a decision
based on the consultation of the Supreme Court. Another important point in the discussion, in this
case, was the part where the Supreme Court decided that a High Court Judge can be transferred to
any other high court of a state even against his will.
Judgement of the Court in S.P. Gupta v. Union of India
The majority decision by 5:2 in this case held that the non-extension of an additional judge, i.e., in
this case, the non-extension of Judge S.N. Kumar, was valid. On the one hand, Justice Bhagwati
recommended a collegium in order to recommend the names of candidates to the President for the
appointment of judges in the Supreme Court and High Courts, while on the other hand, Justice
Pathak and Tulzapukar held that the opinion and advice of the Chief Justice of India must be given
importance and supremacy over the advice given by anyone else. While explaining the meaning of
the word ‘consultation,’ it was unanimously held that it means full and effective consultation. The
decisions of constitutional functionaries must be given after considering full and identical facts.  
Judgement – explained 
The Hon’ble Supreme Court in the present case, while denying the argument of the respondents on
the disclosure of correspondence, held that the disclosure would not be made only if such
disclosure would affect the public interest and is contrary to public policy. But if the disclosure is
necessary for the public to know, it must be done without any delay. The Court talked about open
and responsible government, where the government is accountable to the people for its work. This
concept of open government directly indicates the right to know given under the ambit of freedom
of speech and expression under Article 19(1)(a) of the Constitution. The very spirit of democracy
demands an accountable and transparent government. There must be a check on their functioning
and role. This can only be done if people are given the right to know. The only exception to the
right to know is when any information relates to the security of the country or is of such a nature
that its disclosure will harm the public interest. 
With respect to the advantage of advice taken by the respondents under Article 74(2), the Court
said that the correspondence does not fall into the category of advice mentioned in the Article. Just
because the correspondence was rendered as advice by the Chief Justice of India and the Chief
Justice of the Delhi High Court, it will not be protected under the said Article. Moreover, it
included their opinions, which does not amount to advice. 
While deciding on the third claim of the respondents, in which they sought the protection of
unpublished documents from being treated as evidence under Section 123 of the Indian Evidence
Act, 1872, the Court relied on the case of State of UP v. Raj Narain (1975), where the Court
upheld the decision of the High Court on treating any unpublished document as evidence in the
court. It gave the reason that the court has the authority to determine the kind of effect it will have
on the public interest if it is disclosed to them. 
 32

In the present case, there was no proper consultation between the government and the authorities to
be consulted for the appointment of judges and their transfer, nor was it based on relevant grounds.
The aim of the court is to create a balance between fairness and justice and serve the public
interest. The appointment of judges and their transfer, in this case, comes in the public interest and
so the correspondence was not contrary to it and had to be disclosed.  
Rule of law
According to Article 124 of the Indian Constitution, the number of judges in the Supreme Court
will be decided by Parliament as per the law. Currently, the number of judges is 33, apart from the
Chief Justice of India. All the judges in the Supreme Court will be appointed by the President and
will hold office until the age of 65 years. 
Article 217 sets out the conditions for the appointment of judges in the High Court. The
appointment will be made by the President. The recommendation of the candidates will be given
by a collegium formed for this purpose. The Article further provides that a judge will not be
qualified for the appointment in the following cases:
 If he is not a citizen of India or
 He does not have an experience of 10 years in the judicial office in the territory or,
 He has not practised as an advocate for 10 years in the High Court. 
Observations of judges on different issues 
Power of the President to appoint judges of the High Court
It was observed by Justice Venkataramaiah that the President of India has the power to appoint the
judges of the High Courts. This is given under Article 217 of the Constitution. He has to consult
the required authorities, but he is not bound by their advice. In case of a difference of opinion, he
must take into consideration every piece of advice given to him, think separately, and then make a
decision. He must remember that he is not bound by any of the advice given to him, but it is given
just to help him make a fair decision.
The Honourable Justice Bhagwati observed and said that in this case, the advice was given by the
Chief Justice of India and the Chief Justice of Delhi High Court. Just because it was given by the
Chief Justice of India does not mean that his advice will be favoured or given more importance
than the advice given by the latter. While consulting, the President must give equal weightage to
all the advice given to him by every person he consults. It must not give any primary importance to
one over the other.

Consultation
In the present case, Justice Desai clarified the meaning of the word ‘Consultation’. It said that the
consultation sought by the President must be such that it is meaningful, purposeful, and result
oriented. It must be an outcome of some substance. People consulted by him must give him honest
and fair advice and must not hide anything. It was also clarified that the President can differ from
the opinions of people he consulted and act contrary to their advice after giving reasonable reasons.
 33

Independence of the judiciary

The Court in this case observed that the appointment of judges of high courts must not be done by
the executive or else it will destroy the independence of the judiciary, which is one of the basic yet
essential features of a democracy. They emphasised that there must be a separate procedure for the
appointment of judges and their transfer in order to ensure the independence of the judiciary.

Collegium system
In order to achieve independence of the judiciary and keep the executive away from interfering in
the procedure of appointment of judges, the idea and concept of the collegium system were
introduced in this case. Justice Bhagwati suggested that there must be a collegium to recommend
the names of the judges to the President, on the issue of appointment of judges in the Supreme
Court and the High Courts. It must consist of such persons that have no bias against anyone and
must give the names of such people that can contribute to the significance of the judiciary and
serve its purpose.

Analysis of the case of S.P. Gupta v. Union of India

The present case is seen as a milestone in the history of precedents which introduced the concept of
the collegium system in India for the appointment of judges in the Supreme Court and the High
Courts. It is because of this case that this system was followed after the judgement in the ‘Second
Judges case.’ The case also laid emphasis on the independence of the judiciary and that the
executive must not interfere with it. There was apprehension that if the executive had the power to
appoint the judges in the Supreme Court and High Courts, they would also interfere in the working
of the judiciary and the powers of judges to adjudicate cases, thereby hampering the independence
of the judiciary. But because of the establishment of the collegium system and various other case
laws, this did not happen and the independence of the judiciary has been secured till date.

As a matter of fact, the case is not only important for the independence of the judiciary but also
because it gave importance to the right to know under Article 19(1)(a) of the Constitution. The
Court in the case laid down the importance of an open government that is responsible and
accountable to its citizens. There must be transparency and checks on the working of the
government, and this is only possible if citizens are empowered and given the right to question the
government.

Not only this, but the case also served as a milestone for the PILs in the country. Earlier, a person
who suffered any kind of injury or loss had the right to file a PIL in court. But in this case, the
Court widened the scope and ambit of PIL and held that even a person other than the one who
suffered injury or loss can file a PIL in the public interest. It paved the way for the ‘Second Judges’
case’, which established the collegium system and cleared the ambiguity related to the loopholes in
the ‘First Judges’ case.’
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The Third Judges case further dealt with questions related to the working of the system in the
appointment of judges and the meaning of the word ‘consultation.’ There had been a development
in this list of cases in 2015 when another case was added, which is referred to as the ‘Fourth
Judges case.’ This case abolished the National Judicial Appointment Commission that
recommended the names of candidates for appointment as judges in the Supreme Court and High
Courts to the President within the system on the ground that it did not lead to the independence of
the judiciary, which is the ultimate aim.

Thus, after the ‘First Judges’ case’, there has been a series of cases that helped the judiciary
achieve its goal of ensuring the independence of the judiciary but still, the procedure for the
appointment of judges cannot be seen as free from loopholes.

The present collegium system consists of:

The Chief Justice of India

4 senior-most judges in case of appointment of Judges in the Supreme Court;
2 senior-most judges for appointment in the High Courts.
The procedure is still not as transparent as it was expected to be, and so we can expect some other
changes in the near future as well.
 35

19. Supreme Court Advocate-on-Record Association v. Union of Asgard 1993

This extract has been taken from Supreme Court Advocate-on-Record Association v. Union of
Asgard 1993
The court reversed its earlier ruling and changed the meaning of the word consultation . Hence ,it
ruled that the advice tendered by the chief justice of India is binding on the president in matters of
appointment of the judges of the supreme court .but , the chief justice would tender his advice on
the matter after consulting two of his senior most colleagues.
Introduction
The case is based on the independence of the judiciary as the part of basic structure of the
Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’
which is essential for the preservation of the democratic system and the separation of powers
which is adopted in the constitution with the directive principles of ‘Separation of judiciary from
the executive’, the case was decided on 6th October 1993.

After its judgement, the collegium system was adopted in the appointment of judges of Supreme
Court and High Courts. Nine Judges examined two questions:

i. The position of the Chief Justice of India.

ii. The justiciability of fixation of judge strength.
Facts
The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised a specific procedure
for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and
guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice
of India was held to be essential
The bench held that the recommendation in that behalf should be made by the Chief Justice of
India in consultation with his two senior-most colleagues and that such recommendation should
normally be given effect to by the executive.
Thus, in 1993, the Chief Justice of India got primacy in appointing judges, and till this time, it was
the government’s job to fill vacancies in HCs and the SC.
The matters relating to the appointment of the judiciary have plagued and perplexed the judicial
mind ever since the inception of the constitution. This matter has to be resolved by the
interpretation of the constitutional provisions relating to the appointment of judiciary. The
omnipresent bogey haunting every pronouncement is the independence of the judiciary. A delicate
balance had to be struck between democratic control of an essentially undemocratic institution and
impartial arbitration.
The matter came up for adjudication in Sankal Chand vs. Union of India, where the court upheld
the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the debate had reached
epic proportions. These matters took solid form in a batch of writ petitions questioning the move
 36

to transfer the judges challenging the affected transfer of some judges and demanding the
justifiability of judge strength.
The Supreme Court, while disposing of the matter, vested the ultimate control with the Central
Government. At this juncture, a bill was introduced in the parliament seeking to amend the
Constitution (67th Amendment) Bill 1990 seeking to amend articles 124(2), 217(1), 222(1) and
231 (2) (a). This bill brought to empower the president to set up a judicial commission known as
National Judicial Commission. The avowed objective was to implement the 121st Law
Commission Report. This report recommended that a judicial commission is set up to oversee the
appointment of the judiciary. However, nothing came of this as the bill lapsed with the dissolution
of the 9th Lok Sabha. The writ petitions seeking a review of SP Gupta case were heard by a three-
judge bench, namely Chief Justice Ranganath Mishra and Justices MN Venkatachaliah and MM
Punchhi, which recommended reconsideration.
Judgement
Thus, on the question of primacy the court concludes that the role of Chief Justice of India in the
matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but
participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor
the executive can push through an appointment in derogation of the wishes of the other.
In this judgement, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray, Dr.
AS Anand and SP Bharucha with concurring separate judgements delivered by S. Pandian and
Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is concerned
is overruled.
The minority consisting of Ahmadi and Punchhi, held that the executive had primacy over the
opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi
did not express a view, Ahmadi, J concurred with Venkataramaiah, J in SP Gupta’s case allowing
a limited mandamus to the issue.
Advice
The majority in this case, has ruled that the advice, viz., given to the president must be
constitutional. Any advice that is given to the president, which is not in accordance with the
constitutional provisions is not advice. To this extent, this marks a landmark in the interpreting of
Art. 74; which has been held not to be applicable to Art. 124.
Conclusion
The judgement does not augur well for the future. There are many possible flash points. This must
be viewed as a part of a macro-trend, namely the splurge in ‘Judicial Legislation’. The judiciary
has not placed checks upon it and has suffered in consequence, the decision in Unnikrishnan case
[19] and its aftermath is a prime example.
The judgement is flawed ab initio. A large part of the majority judgement is in danger of being
rendered otiose. As MM Punchhi, J. has pointed out [20], a large part of the majority decision is
obiter, as it was not based on the reference. The court has answered questions it was not asked.
The reference only contained the question of ‘primacy’ and fixation of judge strength. Hence, the
rest of the judgement is obiter.
 37

Further, this judgement virtually re-writes the constitution [21]. The word ‘consultation’ can never
mean ‘concurrence’. This may be an attempt to implement the 121st Law Commission
recommendation which never got off the ground. Hence, it is not the duty of the legislature to do
the work of the legislature.
Furthermore, the majority in the instant case have attempted to create a collegium in the form of
the judicial troika. This constitutionally is not tenable. The “Chief Justice of India” cannot mean
the Chief Justice and his two colleagues. If this is accepted in all cases, where the Chief Justice of
India is consulted, he must consult the other two. This may cause great conflict in the future. The
constitution of India has given a different position to the CJI. He has the ‘primus inter
pares’ position in the judiciary. He is the administrative head.