# ASSOCIATION AND ANOTHER v. UNION OF INDIA - **Citation:** [2015] 13 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 2015-10-16 - **Bench:** Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, Adarsh Kumar Goel - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/association-and-another-v-union-of-india-30726 - **Pages:** 1056 ## Headnote B c Constitution (Ninety-ninth Amendment) Act, 2014 - Collegium system of appointment of Judges to the Supreme Cowt, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated D for replacing the Collegium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission E Act, 2014-NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; ·(b) two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, F to be nominated as Members - Constitution (Ninety-ninth Amendment) Act, 2014 - Va/idjty of- Held (per order of the Court): It is unconstitutional and void - National Judicial Appointments Commission Act, 2014 - Judiciary- Higher Judiciary- Constitutional Courts -Appointment and transfer G of Judges - Procedure . National Judicial Appointments Commission Act, 2014 - Collegium system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; h 2 SUPREME COURT REPORTS [2015] 13 S.C.R. A and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated for replacing the Col/egium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 B read with the Nationai Judicial Appointments Commission Act, 2014- NJAC composed of: (a) the Chief Justice of India, · Chairperson, ex officio; (b} two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law C and Justice as Member, ex officio; (d} two eminent persons, to be nominated as Members - National Judicial Appointments Commission Act, 2014 - Validity of - Held (per order of the Court): It is unconstitutional and void - 0 Constitution (Ninety-ninth Amendment) Act, 2014- Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges- Procedure. Judiciary - Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges- Procedure- Col/egium E system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated for replacing the Collegium system - Six-member National Judicial F Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of G Supr~me Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, to be nominated as Members- Held (per order of the Court): The collegium system, as existing prior to the Constitution H SUPREME COURT ADVOCATES-ON-RECORD 3 ASSOCIATION v. U.0.1. (Ninety-ninth Amendment) Act, 2014, declared to be A operative - However, to consider introduction of appropriate measures, if any, for an improved working of the "collegium system", matter listed on a subsequent date ..:. Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. B Judiciary ~ Higher judiciary - Constitutional Courts - Selection and appointment of Judges - Parliament, if empowered to provide for an alternative procedure - Held (per Khehar, J.): It is open to the Parliament, while exercising C its power under Article 368, to provide for some other alternative procedure for the selection and appointment of Judges ## Text _Characters 0–39,422 of 2,055,127. This is a partial read: ask again with offset=39422 for what follows._ [2015] 13 S.C.R. 1 SUPREME COURT ADVOCATES-ON-RECORD A ASSOCIATION AND ANOTHER v. UNION OF INDIA (Writ Petition (Civil) No. 13 of 2015) OCTOBER 16, 2015 [JAGDISH SINGH KHEHAR, J. CHELAMESWAR, MADAN B. LOKUR, KURIAN JOSEPH, ADARSH KUMAR GOEL, JJ.] B c Constitution (Ninety-ninth Amendment) Act, 2014 - Collegium system of appointment of Judges to the Supreme Cowt, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated D for replacing the Collegium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission E Act, 2014-NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; ·(b) two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, F to be nominated as Members - Constitution (Ninety-ninth Amendment) Act, 2014 - Va/idjty of- Held (per order of the Court): It is unconstitutional and void - National Judicial Appointments Commission Act, 2014 - Judiciary- Higher Judiciary- Constitutional Courts -Appointment and transfer G of Judges - Procedure . National Judicial Appointments Commission Act, 2014 - Collegium system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; h 2 SUPREME COURT REPORTS [2015] 13 S.C.R. A and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated for replacing the Col/egium system - Six-member National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 B read with the Nationai Judicial Appointments Commission Act, 2014- NJAC composed of: (a) the Chief Justice of India, · Chairperson, ex officio; (b} two other senior Judges of Supreme Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law C and Justice as Member, ex officio; (d} two eminent persons, to be nominated as Members - National Judicial Appointments Commission Act, 2014 - Validity of - Held (per order of the Court): It is unconstitutional and void - 0 Constitution (Ninety-ninth Amendment) Act, 2014- Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges- Procedure. Judiciary - Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges- Procedure- Col/egium E system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another- New scheme contemplated for replacing the Collegium system - Six-member National Judicial F Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC composed of: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of G Supr~me Court, next to the Chief Justice of India as Members, ex officio; (c) the Union Minister in charge of Law and Justice as Member, ex officio; (d) two eminent persons, to be nominated as Members- Held (per order of the Court): The collegium system, as existing prior to the Constitution H SUPREME COURT ADVOCATES-ON-RECORD 3 ASSOCIATION v. U.0.1. (Ninety-ninth Amendment) Act, 2014, declared to be A operative - However, to consider introduction of appropriate measures, if any, for an improved working of the "collegium system", matter listed on a subsequent date ..:. Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments Commission Act, 2014. B Judiciary ~ Higher judiciary - Constitutional Courts - Selection and appointment of Judges - Parliament, if empowered to provide for an alternative procedure - Held (per Khehar, J.): It is open to the Parliament, while exercising C its power under Article 368, to provide for some other alternative procedure for the selection and appointment of Judges to the higher judiciary, so long as, the attributes of "separation of powers" and "independence of the judiciary", which are "core" components of the "basic structure" of the D Constitution, are maintained. Constitution of India -Amendment to - Scope - Held (per Khehar, J.): The "basic structure" of the Constitution is inviolable ~ The Constitution cannot be amended so as to negate any "basic features" thereof-Also, if a challenge is E raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. Constitution of India - Art. 368 - Constitutional Amendments - Will of the People and Judicial Review - Limitations on the amending power - Appointment and F transfer of Judges in higher judiciary- Broad based Judicial Appointment Commission comprising of members of the judiciary, the executive and eminent! important persons from public life 'proposed to be constituted, to replace the prevailing G procedure, contemplated under Articles 124(2) and 217(1)- To achieve the purported objective, Articles 124 and 217 inter a/ia amended, and Articles 124A, 1248 and 124C inserted in the Constitution, through the Constitution (99th Amendment) Act, by following the procedure contemplated H 4 SUPREME COURT REPORTS [2015] 13 S.C.R. A under Article 368(2), more particularly, the proviso thereunder - Simultaneously therewith, the Parliament enacted the NJACAct- Said Constitutional amendment and legislative enactment, challenged before Supreme Court - Held (per Khehar, J.): There are declared limitations, on the amending B . power conferred on the Parliament, which cannot be breached - If a constitutional amendment breaches the "core" of the Constitution or destroys its "basic or essential features" in a manner which was patently unconstitutional, it would have crossed over forbidden territory - This aspect, would C undoubtedly fall within the realm of judicial review - In the above view of the matter, the impugned constitutional amendment, as a/so, the NJAC Act, would be subject to judicial review on the touchstone of the "basic structure" of 0 the Constitution, and the parameters laid down by the Supreme Court in that behalf, even though the impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority, and notwithstanding the ratification thereof by as many as twentyE eight State Assemblies - Constitution (Ninety-ninth Amendment) Act, 2014 - National Judicial Appointments· Commission Act, 2014 . . Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges - Independence of F judiciary - Primacy conferred on the Chief Justice of India and his col/egium of Judges - Held (per Khehar, J.): In the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles G 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted) - Therefore, when a question with reference to the selection and appointment (as also, transfer) H SUPREME COURT ADVOCATES-ON-RECORD 5 ASSOCIATION v. U.0.1. of Judges to the higher judiciary is raised, alleging that the A "independence of the judiciary" as a "basic feature/structure" o~ the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached- Then B alone, would it be possible to conclude, whether or not, the "independence of the judiciary" as an essential "basic feature" of the Constitution, had been preserved (-and had not been breached}- Constitution of India -Articles 124, 21 land 222. c Judiciary - Higher Judiciary - Constitutional Courts - Appointment and transfer of Judges - Procedure - New scheme contemplated for replacing the Col/egium system - National Judicial Appointments Commission (NJAC) set up under the aegis of Constitution (Ninety-ninth Amendment) D Act, 2014 read with the National Judicial Appointments Commission Act, 2014 - NJAC to comprise of members of the judiciary, the executive and eminent/important persons from public life - Whether as a matter of practicality, the impugned constitutional amendment can be consi.dered to E have sustained, primacy in the matter of decision making, under the amended provisions of Articles 124, 217 and 222, in conjunction with the inserted provisions of Articles 124A to 124C, with the judiciary- Held (per Khehar, J.): Primacy of the judiciary would not be considered to have been sustained, F merely by ensuring that the judicial component in the membership of the NJAC, was sufficiently capable, to reject the candidature of an unworthy nominee - In the matter of primacy, the judicial component of the·NJAC, should be competent by itself, to ensure the appointment of a worthy· G nominee, as well - Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court (next to the Chief Justice of India), consider a nominee to be worthy for appointment to the higher H 6 SUPREME COURT REPORTS [2015] 13 S.C.R. A judiciary, the concerned individual may still not be appointed, if any two Members of the NJAC. opine otherwise- This would be out-rightly obnoxious, to the primacy of the judicial component- The magnitude of the instant issue, is apparent from the fact that the two "eminent persons" ("lay persons, B according to the Attorney General), could defeat the unanimous recommendation made by the Chief Justice of India and the two senior most Judges of the Supreme Court, favouring the appointment of an individual under consideration - Without any doubt, demeaning primacy of C the judiciary, in the matter of selection and appointment of Judges to the higher judiciary - The instant issue, is demonstrably far more retrograde, when the Union Minister in charge of Law and Justice also supports the unanimous 0 view of the judicial component, because still the dissenting voice of the "eminent persons" would prevail - It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile - Articles 124A(1)(a) and (b) do not provide for an adequate E' representation in the matter, to the judicial component, to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the "basic structure" of the Constitution of lndiaF Thus viewed, the "basic structure" of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC - The impugned constitutional amendment, being ultra vires the "basic G structure" of the Constitution, is liable to be set aside - Constitution of India -Arts. 124A (1 )(a) and (b). H Judiciary - Higher Judiciary - Constitutional Courts - Appointment of Judges - Procedure - New scheme contemplated - National Judicial Appointments Commission SUPREME COURT ADVOCATES-ON-RECORD 7 ASSOCIATION v. U.0.1. (NJAC) set up - NJAC to comprise of members of the A judiciary, the executive and eminenVimportant persons from public life - Participation of the political-executive - If justified - Presence of Union Minister in charge of Law and Justice, as an ex officio Member of the NJA C - Challenge to - Held (per Khehar, J.): The political-executive, as far as possible, B should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary - Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication - Reciprocity, and feelings of pay back to the politicalC executive, would be disastrous to "independence of the judiciary" - Since the executive has a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in 0 charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable - Consequent upon the participation of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support, may not be able to resist or repulse a plea of conflict E of interest, raised by a litigant, in a matter when the executive has an adversarial role- In the NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary - It may be difficult for Judges approved by the NJAC, to F resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the /is - The above, would have the inevitable effect of undermining the "independence of the judiciary", even where such a plea is repulsed - Therefore, the rote· assigned to the G political-executive, can at best be limited to a collaborative participation, excluding any role in the final determination - Mere participation of the Union Minister in charge of Law and Justice, in the final process of selection, as an ex officio H 8 SUPREME COURT REPORTS [2015] 13 S.C.R. A Member of the NJA C, would render the amended provision of Article 124A(1 )(c) as ultra vires the Constitution, as it impinges on the principles of "independence of the judiciary" and "separation of powers" - In the process of evolution of societies across the globe, the trend is to free the judiciary B from executive and political control, and to incorporate a system of selection and appointment of Judges, based purely on merit- For it is only then, that the process of judicial review will effectively support nation building - Progression of the concepts of "independence of the judiciary" and 'Judicial C review" were now being recognized the world over - The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an obvious reality - In recognition of the above trend, there cannot be any greater and further participation of the D executive, than that which existed hitherto before -And in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and Third Judges cases - It is therefore imperative to conclude, that the participation E of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none - Leader of the single largest Opposition Party in the House F of the People), in the selection of"eminent persons", would be a retrograde step, and cannot be accepted - Constitution of India -Art. 124A(1)(c). Judiciary- Higher Judiciary- Constitutional Courts - Appointment and transfer of Judges - Procedure - G Composition and structure of NJAC- NJAC to comprise of members of the judiciary, the executive and two "eminent persons""- Issue arising out of non-description of qualifications and disqualifications of "eminent persons" - Two "eminent persons" to be nominated to the NJA C vested H SUPREME COURT ADVOCATES-ON-RECORD 9 ASSOCIATION v. U.0.1. with a power of veto - Propriety of- Held (per Khehar, J.): A The issue of description of the qualifications (-perhaps, also the disqualifications) of "eminent persons" is of utmost importance, and cannot be left to the free will and choice of the nominating authorities, irrespective of the high constitutional positions held by them- Specially so, because B the two "eminent persons" comprise of 1/3rd strength of the NJA C, and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC-Article 124A(1 )(d) is liable to be set aside and struck down, for having not laid C down the qualifications of eligibility for being nominated as "eminent persons", and for having left the same vague and undefined - It is even otherwise difficult to appreciate the logic of including two "eminent persons': in the six-Member 0 NJAC - It is difficult to appreciate what inputs the "eminent persons", satisfying the qualification depicted by the Attorney General, would render in the matter of selection and appointment of Judges to the higher judiciary- The sensitivity of selecting Judges is so enormous, and the consequences E of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may we/I lead the nation into a chaos of sorts - It is also difficult to appreciate the wisdom of the Parliament, to F introduce two Jay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto- The second proviso under s.5(2), and s.6(6) of the NJAC Act, clearly mandate, that a person nominated to be considered for G appointment as a Judge of the Supreme Court, and persons being considered for appointment as Chief Justices and Judges of High Courts, cannot be appointed, if any two Members of the NJA C do not agree to the proposal - In the H 10 SUPREME COURT REPORTS [2015] 13 S.C.R A scheme of the selection process of Judges to the higher judiciary, contemplated under the impugned constitutional amendment read with the NJAC Act, the two "eminent persons" are sufficiently empowered to reject all recommendations, just by themselves - Not just that, the B two "eminent persons" would also have the absolute authority to reject all names unanimously approved by the remaining four Members of the NJAC - That would obviously include the power to reject, the unanimous recommendation of the entire judicial component of the NJA C - The vesting of such C authority in the "eminent persons", is clearly unsustainable, in the scheme of ."independence of the judiciary" -Article 124A(1 )(d) is liable to be set aside and struck down as being violative of the "basic structure" of the Constitution - D Constitution of India-Art. 124A(1 )(d)- Constitution (Ninetyninth Amendment) Act, 2014 - National Judicial . Appointments Commission Act, 2014 - Second proviso u/s. 5(2) ands. 6(6). Judiciary - Higher judiciary - Constitutional Courts - E Appointment and transfer of Judges - Participation of the political-executive establishment- Role of the "civil society" in India - Held (per Khehar, J.): The Constitution does not . envisage the "spoils system" (also known as the "patronage system'?, wherein the political party which wins an election, F gives Government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power- It would be of utmost importance to shield judicial appointments, from any politicalexecutive interference, to preseNe the "independence of the G judiciary", from the regime of the spoils system - PreseNing primacy in the judiciary, in the matter of selection and appointment of Judges to the, higher judiciary would be a safe way to do so - It is difficult to hold that the wisdom of appointment of Judges, can be shared with the politicalH SUPREME COURT ADVOCATES-ON-RECORD 11 ASSOCIATION v. U.0.1. executive- In India, the organic development of civil society, · A has not as yet sufficiently evolved - The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance- The present status ofthfj evolution of the "civil B society" in India, does not augur the participation of the political-executive establishment, in the selec;tion and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another - Higher judiciary, ·which is the savior of the C fundamental rights of the citizens of this country, by virtue of the constitutional responsibility assigned to it under Articles 32 and 226, must continue to act as the protector of the civil society- Constitution of India-Arts. 32 and 226. National Judicial Appointments Commission Act, 2014 - Functioning of the NJAC- Quorum for- Meeting of National Judicial Appointments Commission (NJAC), when valid - Strength required for valid decision making - Held (per D . Khehar, J): In case a statutory provision vests a decision E making authority in a body of persons witho_ut stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision making- On the same analogy therefore, a valid decision by such a body will necessitate a decision F by a simple majority of all the members of the body - If the . aforesaid principles are made applicable to the NJAC, the natural outcome would be, that a valid meeting of the NJA C must have at least four Members participating in a sixMember NJAC - Likewise, a valid decision of the NJAC can G only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of ·the NJAC (three Members on either side, would not make up the simple majority) - Judiciary - Higher Judiciary - H 12 SUPREME COURT REPORTS [2015] 13 S.C.R. A Constitutional Courts -Appointment and transfer of Judges - Procedure. National Judicial Appointments Commission Act, 2014 - ss. 5(2) and 6(6) - Validity- Judiciary- Higher JudiciaryConstitutional Courts -Appointment and transfer of Judges B - Power of veto vest~d in any two Members of the NJA C - . Held (per Khehar, J.): The power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciqry, in the matter of selection and appointment of C Judges to the higherjudiciary (as also theirtransfer)-ss.5(2) and 6(6) breach the "basic structure" of the Constitution, with reference to the "independence of the judiciary" and the "separation of powers" - ss. 5(2) and 6(6), therefore, liable to be declared as ultra vires the Constitution. o National Judicial Appointments Commission Act, 2014 - s. 5(1) - Appointment of the Chief Justice of India - Procedure - s.5(1) provided that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief.Justice of India, subject to the E condition, that he was considered "fit" to hold the office - Contention that the term "fit" had not been elaborately described and it was always open to the Parliament to purposefully define fitness, in a manner as would sub-serve the will of the executive and this could/would seriously affect F the "independence of the judiciary" - Held (per Khehar, J.): It was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India, in uncertain and ambiguous terms - It was imperative to express, the clear G parameters of the term "fit", with reference to the senior most Judge of the Supreme Court under s.5 - The term "fit" can be tailor-made, to choose a candidate far below in the seniority list- The position adopted by the Attorney General, H namely, that the term "fit" used in s.5(1) would be read to SUPREME COURT ADVOCATES-ON-RECORD 13 ASSOCIATION v. U.0.1. mean only " ... mental and physical fitness ... " is affirmed A and crystalised - If that is done, it would be legal and constitutional - However, if the position adopted ~reached the "independence of the judiciary'; in the manner suggested by the petitioners, the same would be assailable in Jaw. National Judicial Appointments Commission Act, 2014 8 - s. 5(2), first proviso - Validity of -Appointment of a High Court Judge - First proviso to s.5(2) providing that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge C shall be considered by NJAC - Held (per Khehar, J.):Undoubtedly, postulating "seniority" in the first proviso under s.5(2), is a laudable objective -And if seniority is to be supplemented and enmeshed with "ability and merit'; the most ideal approach, can be seen to have been adopted - 0 But what appears on paper, may sometimes not be correct in practice - Experience shows, that Judges to every High Court are appointed in batches, each batch may have just two or three appointees, or may sometimes have even ten or more individuals-A group of Judges appointed to one High E Court, will be separated from the lot of Judges appointed to another High Court, by just a few days, or by just a few weeks, and sometimes by just a few months- In the all India seniority of Judges, the complete batch appointed on the same day, to one High Court, will be placed in a running serial order (in F seniority) above the other Judges appointed to another High Court, just after a few days or weeks or months - Judges appointed later, will have to be placed en masse below the earlier batch, in seniority- If appointment of Judges to the Supreme Court, is to be made on the basis of seniority (as a G primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court-And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved H 14 SUPREME COURT REPORTS [2015] 13 S.C.R. A themselves able and meritorious as High Court Judges, they will have to be appointed one after the other, when vacancies of Judges arise in the Supreme Court - In that view of the matter, Judges from the same High Court would be appointed to the Supreme Court, till the entire batch is exhausted - B Judges from the same High Court, in the above situation where the batch comprised often Judges, will occupy a third of the total Judge positions in the Supreme Court- That would be clearly unacceptable - Consideration of Judges on the basis of their seniority, by treating the same as a primary C consideration, would adversely affect the present convention of ensuring represeritation from as many State High Courts, as is possible - The convention in vogue is, to maintain regional representation -Accordingly, the first proviso under 0 s. 5(2) is liable to be struck down and set aside. National Judicial Appointments Commission Act, 2014 - s.6(1) - Validity of-Appointment of a Judge of a High Court as Chief Justice of a High Court- s. 6(1) providing that NJAC shall recommend on the basis of inter se seniority of E High Court Judges and ability, merit and any other criteria of suitability as may be specified- Held (per Khehar, J.): s. 6(1) . has the same seniority connotation as expressed with reference to the first proviso under s.5(2) - For exactly the same reasons as noticed in the case of the first proviso under F s.5(2), based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court- s. 6(1) therefore liable to meet the same fate, as the first proviso under s.5(2); and is G liable to be struck down and set aside. National Judicial Appointments Commission Act, 2014 - s. 7 - Validity of- Appointment of Chief Justice of India or a Judge of the Supreme Court or, the Chief Justice of a High Court or the Judge of a High Court - s. 7 providing that the H President would make such appointments on SUPREME COURT ADVOCATES-ON-RECORD 15 ASSOCIATION v. U.0.1. · recommendations made by NJAC - The first proviso to s. 7 A providing that the President may require NJA C to reconsider recommendation made by it- Held (per Khehar, J.): It is not possible to accept that s. 7 by providing that the President could requite the NJAC to reconsider a recommendation made by it, would in any manner violate Articles 124(2) and B 217(1) (which mandate, that Judges would be appointed by the President on the recommendation of the NJAC)- It would .be improper to infer, that the action of the President, requiring the NJAC to reconsider its proposal, amounted to rejecting the proposal made by the NJAC - For, if the NJAC was to C reiterate the proposal made earlier, the President even in terms of Section 7, was bound to act in consonance therewith (as is apparent from the second proviso under s. 7 of the NJACAct). National Judicial Appointments Commission Act, 2014 - s. 8- Validity of- Functions of the Convener, with reference io NJA C - s. 8 provides for the Secretary to the Government D of India, in the Department of Justice, to be the convener of NJA C- It was contended that such an onerous responsibility, E · could not be left to the executive alone.it was imperative to exclude all executive participation in the proceedings of the NJAC-Held (per Khehar, J.): It has already been concluded, that the participation of the Union Minister in charge of L?W · and Justice, as a Member of the NJAC, as contemplated F under Article 124A(1 ), in the matter of appointment of Judges to the higher judiciary, would breach the concepts of "separation of powers" and the "independence of the judiciary", which are both undisputedly components of the "basic structure" of the Constitution of/ndia - For exa