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SUPREME COURT ADVOCATE-ON-RECORD ASSOCIATION Vs. U.O.I [Writ Petition (Civil) no. 13 of 2015]

Updated: Aug 19, 2020

Shaik Uzma (GITAM School of Law)

Case No.: Writ Petition (Civil) no. 13 of 2015

Petitioner: Supreme Court Advocates on Record Association

Respondent: Union of India

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


The argument is based on judicial independence as part of the Constitution's fundamental structure. This case is known as 'Second Judges case'. The case was resolved on 6 October 1993 in order to protect the 'Rule of Law' that is necessary for the survival of the democratic structure and the separation of powers introduced in the Constitution with the guidelines 'Separation of the judiciary from the executive.'

The system of the collegium was introduced after its decision in the selection of Supreme Court and High Court judges. There were two questions that nine judges examined:

1. The Chief Justice's position on India.

2. The Justiciability of the judge's assertiveness. But this decision was overruled due to some flaws in this case.


Each time when we research about the Supreme Court, we also run into terms like the Supreme Court collegium method. This scheme is nothing but India's legal theory. To understand its significance and need, the process of appointment of judges in the Supreme Court and High Court has to be understood.

The collegium system was introduced by India's Supreme Court. Initially, this system was not mentioned in our Constitution. It was introduced by the Hon’ble SC through its judgments in a few cases concerning the serious threat to judicial independence in 1970, when many judges were superseded in the appointment of CJI and several attempts were made to transfer many HC judges.

For a better understanding we have to discuss the case of the second judges along with the case of the Judges' Transfer (S. P. Gupta v. Union of India – 1982).These cases revolve around the issue of whether or not independence of the judiciary is included in the basic framework of the Indian Constitution and the power to appoint judicial officers lies in whose side.


To know the origin of the claims determined in the case of the second judges, we need to look at the beginning of the debate that was discussed in the case of S. P. Gupta v. India, 1982. This case deals with a variety of cases addressing significant constitutional issues surrounding the appointment and transfer of judges, as well as judicial independence. One of the concerns raised was regards to the validity of Central Government orders for two judges who are not to be named. The petitioners sought the disclosure of correspondence between the Law Minister, Delhi's chief justice, and India's chief justice to make this point. The correspondence was found to be unprotected in the present case. It dealt with the appointment and transfer of judges, an issue of great public interest, and its disclosure would not have prejudiced the public interest. The fear of an uninformed or captious public or of political criticism was not enough to justify the correspondence's defense. The Court, after reviewing the correspondence, concluded that there was reason for the Central Government's order on non-appointment.

This collegium system is the method of nominating and moving judges that has arisen through Supreme Court decisions, and not by a legislative act or a constitutional clause. The collegium of the Supreme Court is headed by India's chief justice and includes four other highest court judges. A collegium of the High Court is headed by the court's chief justice and four other senior judges. Names recommended for appointment by a collegium of the High Court shall only meet the government after approval by the CJI and the collegium of the Supreme Court. Higher-judicial judges are named only through the collegium system — and the government only plays a part after names have been decided by the collegium. The position of the government is limited to receiving an inquiry from the Intelligence Bureau (IB) if a lawyer is to be appointed as a judge in a High Court or at the Supreme Court. It can also raise objections and seek clarification as to the choices made by the collegium, but if the collegium reiterates the same names, the government is obliged to nominate them as judges under Constitution Bench judgments.


➢ The main argument is based on judicial independence as part of the Constitution's fundamental structure. This case is known as the 'Second Judges case' Securing the 'Rule of Law' that is necessary for the survival of the democratic structure and the separation of powers introduced in the Constitution with the 'Separation of Judiciary from the Executive' and Directive principles.

➢ In early 2015, the Advocates-on-Record Association and Senior Advocates of the Supreme Court filed written lawsuits questioning the constitutionality of the Ninety-ninth Amendment and the NJAC Act. The lawsuits argued, inter alia, that the NJAC breached the basic framework of the Constitution by compromising the judiciary’s independence.

➢ The case of the first judge (S.P.Gupta v. Union of India AIR 1982 SC 149) gave the executive primacy in appointments to the higher judiciary, stating that the advice of the CJI's recommendation on judicial appointments and transfers may be rejected for "cogent reasons." Results were not strong enough to indicate that we should have an executive-dominant appointment structure.

➢ In 1991, the question of judicial appointments came before the SC in Subhash Sharma V. Union of India (1991 Supp (1) SCC 574), the 3 judges bench believed that a larger bench should consider the majority view in the case of First Judges. Thus the court in that judgment itself affirmed the thought of a judicial commission for the appointment of judges.

➢ In 1993 the bench of nine judges found the issues addressed to it in the case of the second judges case (Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268). The majority decision made the authority of CJI over judicial appointments and transfers. The CJI only has to consult two senior judges, it says.

➢ In order to explain the situation the former President K.R. Narayanan sought a reference from the SC in the case of the third judges case (Special Reference No.1 of 1998 AIR 1999 SC 1), the Supreme Court stipulated that the CJI would consult with a majority of four Senior Supreme Court judges to form its opinion on court appointments and transfers. The crux of the case of the second and third judges is that there should be primacy for the judiciary.

➢ In 2000, the NDA government appointed the Venkatachaliah Commission to study the functioning of the constitution. The committee proposed in its report the creation of a judicial commission consisting of:

(A) India's Chief Justice: the President

(B) Two most senior Supreme Court judges: Member

(C) Law and Justice Minister of the European Union: Member

(D) One eminent person named by the President after consultation with the Chief Justice of India: Member.

➢ This report was soon followed by The Constitution (Ninety Eighth Amendment) Act, 2003 introduced by the NDA government which aimed to set up a National Judicial Commission according to this commission's suggestions but before this act could be passed the dissolved Lok Sabha.

➢ In 2013, the UPA government enacted the 2013 Law on the Constitution (120th Amendment), which provided for a six-member Judicial Appointments Commission consisting of three members of the judiciary and three members of the non-judiciary, granting them equal say and primacy.

➢ In 2014, the government of NDA introduced The Constitutional (121st Amendment ) Bill, which was subsequently passed by both legislative houses, ratified by 16 state legislatures and approved by the President; the NJAC Act and the Constitutional Amendment Act came into force on 13 April 2015;

➢ In this NJAC case, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Commission on Judicial Appointments Act, 2014 were considered null and void by the court. The 2014 amendment was defeated as it runs contrary to the principles of 'separation of powers' and 'independence of the judiciary' and thereby infringes the basic structure of the constitution.

➢ The NJAC ruling, issued on October 16, 2015, contains five decisions, reaching a total of 1,000 words. The Court split four to one with four judges — Khehar, Lokur, Goel, and Joseph — in the majority, and Justice Chelameswar in the dissent.


Whether or not the Constitution (Ninety-ninth Amendment)Act, 2014 and the National Judicial Appointments Commission Act, 2014 violate the ‘Principles of separation of powers’?

Arguments Advanced

First, the petitioners raised an objection to Justice Khehar about the involvement in the litigation. As he was the third most senior Justice excluding the Chief Justice, Justice Khehar was a member of the “collegium”- the present system during which senior Supreme Court Justices have the ultimate say on appointments to the bench. The petitioners made an argument that Justice Khehar could not be neutral since he exercised “significant constitutional power” within the judicial appointments process that was being challenged during this litigation. In a brief order, Justice Chelameswar dismissed this claim, remembering that if the petitioner's case is taken to its logical conclusion, every justice of the Supreme Court will be excluded, as each of them could serve on the Collegium.

Secondly, the respondents, the Union of India, filed a petition requesting that the Court examine the validity of two precedents specifically applicable to the case: the cases of the Second and Third Judges. The editor of the Court, Justice Khehar, dismissed the appeal in the main part of his opinion, before reaching the merits.


The Constitutional Bench of the Supreme Court ruled the National Judicial Appointment Commission (NJAC) to be unconstitutional as it violates the Basic Constitutional Structure of India by a majority of 4:1.Justice Jagdish Singh Khehar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel found the Ninety-Ninth Amendment and NJAC act as unconstitutional while chelameswar upheld the Constitution.

The Constitutional amendment and National Judicial Appointment Commission (NJAC) act were brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and High court.

The amendment, inter alia inserted Article 124A in the Constitution which provided for the Constitution and composition of the National Judicial Appointment Commission. It was to be composed of- The chief justice of India, Chairperson(ex officio) Two other chief justices of supreme Court, next to the chief justice of India-members (ex officio) The Union minister responsible of law and Justice-member (ex officio) Two eminent persons to be nominated- members

Critical Analysis

This case's decision may be a critical and sound decision in the sense that the bulk of it overruled its earlier decision that gave the government the facility of the ultimate word.

The judiciary serves as a bridge for addressing social and state problems between Indian people and government. Therefore, it must be kept separate from the legislature and the executive. The rule set out in this Decision is one of considerable significance and therefore must be followed. This decision reduced the political impact faced by the judiciary after independence. This also tested the pattern of government nominating a judge by passing CJI's opinion.

A few principal assets were resulted from the NJA's decision. Firstly, the Court held that the Constitution guarantees judicial primacy in appointments. Secondly, they are backed by the constitutional text and long-standing practice, the Court held that judicial primacy is not only constitutionally essential, but also part of the fundamental structure that cannot be changed because it is fundamental to judicial independence. Thirdly, the NJAC was found illegal for violating the terms of judicial primacy and judicial independence as a result of the previous holdings.

The final outcome of the decision was optimistic because the government played with the appointments in history quite a few times to influence a decision like they were playing a game of Chess. Finally, the decision stored the appointing power in the hands of CJI to minimize and control the role of the executive in appointments to the court. Therefore, as a result of this decision, the political power, bias and favoritism in judicial matters have been greatly reduced, which has strengthened the constitution's fundamental and structural structure that is Independent



[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].

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