IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association Petitioner

v.

Union of India ... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA

PART IV

Contents A. PREFACE ................................................................................... 1

B. The NJAC Act cannot be challenged on the ground of violating the basic

structure of the Constitution ............................................................... 3

I. Ordinary legislation enacted by the Parliament can be struck down on only

two grounds, violation of fundamental rights and lack of legislative competence 3

C. The requirement of special majority in the recommendations made by the

NJAC to the President for appointment of judges is constitutional .............. 11

I. The special majority provisions in the NJAC Act have several positive

virtues necessitating their inclusion .................................................... 13

a. Special majorities are theoretically justified for issues of significance that

are subject to voting requirements and representative of parliamentary will 13

b. Special majorities are used or proposed in different jurisdictions for

appointment of judges and other significant decisions to instill greater public

confidence in the process ............................................................. 20

c. Special majority requirements in voting exist widely in the Constitution

and other statutes in India ............................................................ 28

II. The requirement of special majority in the decision to recommend

judges for appointment to the President by the NJAC does not negate the

independence of the judiciary as contended by the petitioners ............... 35

a. Basic structure cannot be used to test the validity of ordinary legislation 35

b. Viewing the NJAC as three distinct blocs is erroneous; each functionary has

different inputs to provide for the selection of judges ........................... 36

c. The only repercussion of such super-majority is taking away absolutist

primacy of judges in appointment which is not a violation of judicial

independence amounting to an abrogation of the basic structure .............. 40

D. The NJAC Act does not suffer from the vice of excessive delegation ....... 46

I. Article 124, as originally enacted, laid down only basic eligibility for

appointment of judges ................................................................... 46

II. Articles 124B and 124C, and the NJAC Act, lay down guidelines on the basis

of which delegated legislation can be made .......................................... 47

III. The NJAC does not have unguided power to frame regulations relating

to criteria of suitability ................................................................. 52

Annexure IV - Extracted Provisions of the Constitution of the United States..

Annexure III - Historical Background to Constitutional Provisions pertaining to

the Higher Judiciary in India..

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A. PREFACE

1. In the instant case, the lead petitioners the Supreme Court Advocates-

on-Record Association, apart from challenging the Constitution (99th

Amendment) Act, 2014 (hereinafter 99th Amendment) have also

challenged specific provisions of the National Judicial Appointments

Commission Act, 2014 (hereinafter NJAC Act) for being violative of

the independence of the judiciary and hence unconstitutional. The

particular arguments made against the NJAC Act are: first, the NJAC

Act purports to provide unfettered power to the NJAC to formulate

regulations in respect of criteria of suitability and other procedure and

conditions for selection and appointment of judges to the higher

judiciary. Hence, the NJAC Act suffers from the vice of excessive

delegation.

Secondly, the NJAC Act takes away from the primacy of the judiciary in

the matter of appointments. Hence, it is sought to be declared

unconstitutional on the ground of violating the independence of the

judiciary, a part of the basic structure of the Constitution.

2. The following propositions will be advanced in response:

a. The NJAC Act cannot be challenged on the ground of violating the

basic structure of the Constitution.

b. There is a presumption of constitutionality in favour the NJAC Act

which has to be rebutted on the basis of concrete facts.

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c. The requirement of special majorities in the appointment of judges is

justified and is not violative of the independence of the judiciary.

d. The NJAC Act does not suffer from the vice of excessive delegation.

3. Each specific contention made by the petitioners will be rebutted by

applying these legal propositions mentioned above to the NJAC Act on

the whole, as well as to certain specific provisions. Propositions

already raised while defending the 99th Amendment will only be

mentioned but not reitereated. On this basis, it will be demonstrated

that NJAC Act is entirely consonant with the principle of the

independence of the judiciary and other legal precepts, and is

consequently entirely constitutional.

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B. The NJAC Act cannot be challenged on the ground of violating the basic

structure of the Constitution

I. Ordinary legislation enacted by the Parliament can be struck down on

only two grounds, violation of fundamental rights and lack of

legislative competence

4. The petitioners have contended that several provisions of the NJAC Act

[viz. Section 6(6) and proviso to Section 5(2)] ought to be struck down

for violating the basic structure of the Constitution. As a preliminary

matter, it is humbly submitted that it is the settled position of law that

an ordinary legislation can be struck down on only two grounds, viz.,

violation of fundamental rights and lack of legislative competence. An

ordinary legislation cannot be struck down on the ground of impinging

upon the basic structure of the Constitution and this position has been

accepted by this Honble Court in a catena of decisions.

5. In Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 (hereinafter

Indira Nehru Gandhi), Mathew J. held (at p. 138):

345. I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharati case because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do not find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which could operate as limitation upon that power

6. Chandrachud J. also held in Indira Nehru Gandhi (at pp. 261-262):

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691.The constitutional amendments may, on the ratio of the Fundamental Rights case be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the Legislature as defined and specified in Chapter I, Part 11 of the Constitution and (2) it must not offend against the provisions of Articles 13(1) and (2) of the Constitution. Basic structure, by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.

7. This Honble Court also held in State of Andhra Pradesh v. McDowell

and Co. (1996) 3 SCC 709per Jeevan Reddy J. (at p. 738) that ordinary

legislation can be challenged on only two grounds, and no others:

43. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground

8. The dictum in State of Andhra Pradesh v. McDowell and Co. was

followed in Public Services Tribunal Bar Association v. State of

Uttar Pradesh (2003) 4 SCC 104 by Bhan J. (at p. 120):

26.The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of A.P. v. McDowell & Co. [(1996) 3 SCC 709] this Court has opined that except the above two grounds there is no third ground on the basis

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of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.

9. Thereafter, in Kuldip Nayar v. Union of India (2006) 7 SCC 1, this

Honble Court held speaking through Sabharwal CJI (at p. 64):

96. It is well settled that legislation can be declared invalid or unconstitutional only on two grounds, namely, (i) lack of legislative competence, and (ii) violation of any fundamental rights or any provision of the Constitution (see Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1]).

10. Furthermore, in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC

1, Balakrishnan CJI held (at p. 482):

116. For determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental instrument for the country's governance. It may be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle. State legislation can be challenged on the question whether it is violative of the provisions of the Constitution. But as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be examined based on the basic features of the Constitution.

11. It is humbly submitted that there is a sound justification for the

Supreme Court not having permitted the invocation of violation of the

basic structure as a ground for challenging the constitutionality of an

ordinary legislation. This Honble Court in Indira Nehru Gandhi

considered this issue in detail and drew a distinction between the

Constitution and ordinary statutes. Ray CJI observed (at pp. 60-61):

132. The contentions on behalf of the respondent that ordinary legislative measures are subject like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the

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threshold that the contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. The hierarchical structure of the legal order of a State is that the Constitution is the highest level within national law. The Constitution in the formal sense is a solemn document containing a set of legal norms which may be changed only when special prescriptions are observed. The purpose of special prescriptions is to render the change of these norms more difficult by regulating the manner and form of these amendments. The Constitution consists of those rules which regulate the creation of the general legal norms, in particular, the creation of statutes. It is because of the material Constitution that there is a special form for constitutional law. If there is a constitutional form then constitution laws must be distinguished from ordinary laws. The material Constitution may determine not only the organs and procedure of legislation, but also, to some degree, the contents of future laws. The Constitution can negatively determine that the laws must not have a certain content e.g. that the Parliament may not pass any statute which restricts religious freedom. In this negative way not only contents of statutes but of the other norms of legal order, judicial and administrative decisions likewise, may be determined by the Constitution. The Constitution can also positively prescribe certain contents of future statutes. This may be illustrated with reference to the provisions in Article 22 that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. 134. To accept the basic features or basic structures theory with regard to ordinary legislation would mean that there would be two kinds of limitations for legislative measures. One will pertain to legislative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage or destroy basic features or basic structures. This will mean rewriting the Constitution and robbing the legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the legislature. 136. The theory of basic structures or basic features is an exercise in imponderables. Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency, and eliminate encroachment on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislatures of the power of legislation and deprive them of laying down

7

legislative policies. This will be encroachment on the separation of powers.

12. Chandrachud J. (as he then was) also in Indira Nehru Gandhi explained

(at p. 262):

692....There is no paradox, because certain limitations operate upon the higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations.

13. Based on the above position of law upheld repeatedly by several

Constitution Benches of this Honble Court, it is humbly submitted

that, unlike constitutional amendments, ordinary legislation cannot be

challenged on the ground of violating the basic structure of the

Constitution. Hence, the constitutional validity of the provisions of the

NJAC Act cannot be challenged for infringing the basic structure.

14. Further, like constitutional amendments, there is a presumption of

constitutionality in favour of ordinary statutes as well. The burden is

always on the petitioner to show that a particular legislation is

unconstitutional. This principle has been accepted by this Honble

Court in Chiranjit Lal Chowdhury v. Union of India AIR 1951 SC 41.

Further, this presumption can only be rebutted on the basis of concrete

facts. In B Banerjee v. Anita Pan (1975) 1 SCC 166; V.C. Shukla v.

State (Delhi Administration) 1980 Supp SCC 249. The detailed

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argument in this regard may be found in Written Submission I

submitted on 8th June 2015 to this Honble Court by the Union of India.

II. Courts and Legislatures Courts and legislatures must both be

cognizant of changing times, ground realities, societal conditions and

development of law, both domestic and international

15. It is humbly submitted that both Courts and legislatures must be

cognizant of changing times. In this regard, this Honble Court in State

of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46, Sinha

J. held (at p. 77):

50. The High Court furthermore committed a serious error insofar as it made an incidental observation that the tribals who enjoy the protection of the Constitution of India and sought to be protected by the 1975 Act could not have been denied the benefits under the 1999 Act, which in our opinion, was not a relevant question. The provisions of the Constitution in this behalf are enabling in nature. When the constitutionality of an enactment comes to be questioned, the superior courts are required to pose unto themselves the right question. The question, in our opinion, should have been whether the statute is valid having been enacted to achieve the constitutional goal set out not only in Part III of the Constitution of India but also in Parts IV and IV-A thereof. 51. The rights conferred upon the class of persons including the protected class, in terms of the 1975 Act, were statutory in nature. They cannot be categorised as plainly constitutional rights. It is one thing to say that some rights are constitutional in nature/origin being part of the expansive regime of Article 21, but, it would not be correct to raise the same to the exalted status of constitutional rights. 52. A right which primarily flows from a statute, cannot claim its constitutional pedigree to become a constitutional threshold, against which constitutionality of a statute can be tested. It is trite that a right which may be conferred by a statute can also be taken away by another. It is also a trite law that the State is entitled to change its legislative policy having regard to the ground realities and changing societal condition. In fact, the legislature is expected to take steps for enacting a new statute or amending the same so as to keep pace with

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the changing societal condition as well as taking into consideration the development of law, both domestic and international.

Further, in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1,

this Honble Court held (at p. 8):

7. The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also in international arena, such a law can also be declared invalid. 9. Changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will be more often a function of time we are operating in. Primacy to such transformation in constitutional rights analysis would not be out of place. It will be in fitness of the discussion to refer to the following text from Habits of the Heart: Individualism and Commitment in American Life by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton, 1985, p. 286 which suggests factoring in of such social changes: The transformation of our culture and our society would have to happen at a number of levels. If it occurred only in the minds of individuals (as to some degree it already has) it would be powerless. If it came only from the initiative of the State, it would be tyrannical. Personal transformation among large numbers is essential, and it must not only be a transformation of consciousness but must also involve individual action. But individuals need the nurture of crops that carry a moral tradition reinforcing their own aspirations. These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation.

Also, in Union of India v. Raghubir Singh (1989) 2 SCC 754, this

Honble Court held per Pathak CJI (at p. 766):

7..like all principles evolved by man for the regulation of the social order, the doctrine of binding precedents is circumscribed in its government by perceptible limitations, limitations arisingby reference to the need for re-adjustment in a changing society, re-adjustment of legal norms demanded by a changed social context

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16. Based on the above, it is respectfully submitted that a law enacted by

Parliament is a manifestation of the will of the people. The NJAC Act,

which has been passed in both the Lok Sabha as well as the Rajya

Sabha, reflects the said will. The NJAC Act is meant to give effect to a

broad-based participative process for appointment of judges to the

higher judiciary. This change has been brought keeping in view the

needs of the times to revamp the process of appointment of judges. On

this basis it is humbly submitted that the aforesaid presumption of

constitutionality must be applied in the instant case. Consequently, the

burden of proof lies on the petitioners to demonstrate that the

constitutional validity of the NJAC Act is suspect. This burden must be

discharged on the basis of hard facts and not by hunches. The

petitioners have not presented any such facts that rebut such

presumption. Further, no claim that the Act is violative of the basic

structure can be made as this ground of challenge is not open while

testing the constitutional validity of a statute.

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C. The requirement of special majority in the recommendations made by

the NJAC to the President for appointment of judges is constitutional

17. The petitioners have specifically challenged Section 5(2) second proviso

and Section 6(6) of the NJAC Act (hereinafter impugned provisions)

for violating the independence of the judiciary, a part of the basic

structure of the Constitution. Section 5 reads as follows:

5. (1) The Commission shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office: Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting.

(2) The Commission shall, on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed as such under clause (3) of article 124 of the Constitution: Provided that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge shall be considered: Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.

Section 6 provides for appointment of judges to High Courts. Sub-section

(6) reads as follows:

(6) The Commission shall not recommend a person for appointment

under this section if any two members of the Commission do not

agree for such recommendation.

18. Under the impugned provisions of the NJAC Act, if any two members on

the NJAC do not agree to recommend a person for appointment,such

recommendation cannot be made by the NJAC to the President. By

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implication, at least five out of six members of the NJAC need to

consent to the recommendation for it to be sent to the President.

Therefore, in effect, the impugned provisions under the NJAC Act, call

for an affirmative vote by a special majority of members on the NJAC,

i.e. greater than a simple majority, for forwarding a recommendation

for judicial appointment to the President.

19. While arguing for invalidating the 99th Amendment and the NJAC Act,

the petitioners have contended that the veto power granted to

members of the NJAC under the impugned provisions of the NJAC Act is

likely to compromise the independence of the judiciary as the judges

on the NJAC may be outvoted by the non-judicial members on the

NJAC. It is respectfully submitted that this proposition is without basis.

20. The requirement of special majority in voting is justified in theory for

decisions of significant importance. They are prevalent in different

jurisdictions, including for decisions to appoint judges to the higher

judiciary so that such decisions command public confidence. Such

provisions are also widely seen in the Constitution of India, Central and

State statutes. Thus the inclusion of a special majority requirement in

the NJAC Act serves key statutory purposes upholding public

confidence in the appointments process and ensuring checks and

balances and plurality in decision-making. Further, the petitioners

contention that such a special majority requirement is violative of

independence of the judiciary and consequently abrogates the basic

13

structure is entirely without basis. It is well-settled precedent, that

this Honble Court is bound by, that the basic structure doctrine cannot

be used to strike down ordinary legislation, but only constitutional

amendments. Even the substance of their claims, that the super-

majority provision will allow non-judges to veto proposals made by

judges is based entirely on supposition and cannot rebut the

presumption of constitutionality that all statutes enjoy. Even if this

eventuality occurs, which itself is a matter of speculation, only the

absolutist primacy of judges, as well as the executive or eminent

persons, to insist on a particular candidate is taken away. This cannot

be considered to be a violation of the basic structure of the

Constitution.

I. The special majority provisions in the NJAC Act have several

positive virtues necessitating their inclusion

a. Special majorities are theoretically justified for issues of

significance that are subject to voting requirements and

representative of parliamentary will

21. It is humbly submitted that there exist several justifications for

establishing special majorities, particularly in relation to decisions to

appoint judges to the higher judiciary. The requirement of special

majorityfinds basis in a plethora of sources worldwide including

scholarly articles, parliamentary reports as well as judicial decisions

that demonstrate both that it is a theoretically justified as well as a

14

practically useful device to ensure bipartisan supportfor decisions of

particular significance.

22. The rule of special majority is known as super majority in the United

States and special majority in the United Kingdom. The definition of

the rule has been clarified by Professor Joseph Jaconelli, Professor of

Law, University of Manchester in a seminal article titled Majority rule

and special majorities in the reputed British journal Public Law(P.L.

1989 (Winter), 587-616, at 599) where he defines it as:

Voting rules which require a figure higher than 51 per cent

to be attained for a particular outcome.

23. Likewise, in Chapter 6 titled Fair Representation in Democracy More

or Less published by the Cambridge University Press (2014), the author

Professor Bruce E. Cain, Professor of Humanities and Sciences in the

Department of Political Science, University of Stanford also refers to

the rules of supermajority as:

i.e. winning options need to garner more than 50 percent plus

often, typically three-fifths or two-thirds

24. Special majority requirements in voting are considered relevant in

several issues of significance that require considerable deliberation.

This has been noted by philosopher Jean Jacques Rousseau in Chapter 2

of his classic work The Social Contract (Book IV, Penguin Classics

Edition) p. 154wherein he states that,

[B]etween unanimity and an equal division there are numerous

unequal divisions, and the desired proportion can be fixed at any of

these points in accordance with the condition and on the needs of

the body politic.

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Two general maxims may serve to determine these ratios: the first,

that the more important and serious the matter to be decided, the

closer should the opinion which is to prevail approach unanimity; the

second, the swifter the decision the question demands, the smaller

the prescribed majority may be allowed to become; and in decisions

which have to be given immediately, a majority of one must

suffice. At all events, it is by a combination of the two maxims

that we can determine the right size for the majority that is to

decide on any question.

25. Applying Rousseaus first maxim, i.e. vote on significant issues entails

the requirement of special majorities that come close to unanimity,to

judicial appointments, Professor Judith Resnik, Professor of Law, Yale

University has suggested: [Supermajority Rule, The New York Times

(June 11, 2003]

The growth of judgeships reflects the growth of federal

jurisdiction. In the last century, Congress has created securities law,

environmental law, civil rights law, consumer law. We all now have

federal rights that affect our lives in many ways -- from taxes and

pensions to the water we drink and our personal security.

Congress and the courts, working together, have done a remarkable

job creating a substantial, important judicial system. At the top of

this hierarchy sit life-tenured judges. Careful deliberation over

nominees to these judgeships is crucial. Especially when the Senate

is almost evenly divided, a supermajority requirement is one good

way for the Senate to fulfill its constitutional duty to give advice

and consent on judicial appointments.

26. Jaconelli has also opined that in the context of significant issues, the

decision ought to be unanimous or close to unanimous (p. 589-590):

A requirement of unanimity, in the first place, speaks for

itself. In practical terms, the smaller the membership of a body,

the more reasonable (other things being equal) is an expectation

of unanimity. And indeed it is in smaller groups that the

requirement is generally to be found. For example, until 1967 it

was the unique decision-making rule for the English jury. Even

though the changes of that year allowed for a verdict by

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qualified majority--by 10 votes to two in the standard situation-

-it is abundantly clear that a unanimous verdict is still seen as

the ideal. The use of a unanimity rule in the case of a large

legislative chamber could be considered highly inappropriate. It

is not, however, totally unknown. Thus the Polish Diet, from

1652 until the introduction of the Constitution of May 3, 1791,

was characterised by the Liberum Veto, under which the dissent

of a single deputy could paralyse the proceedings of the Diet.

The rule had the laudable aim of securing complete consent to

proposed measures and was indeed used in a reasonable fashion

for some time. It was eventually undermined by deputies with

corrupt motives for its use. Poland's experience of the Liberum

Veto, in fact, was noted by the men responsible for drawing up

the American Constitution, who eschewed unanimity

requirements in favour of qualified majorities for the most

important categories of decision under the new Constitution.

27. In light of the above, it is thus abundantly clear that unanimity is

desirable in decisions of considerable significance. At the same time,

such desirability must be tempered by the problem of holdouts

whenever a unanimity requirement is established, as unanimity might

be hard to achieve in practice. This is what prompted the framers of

the US Constitution to incorporate supermajority requirements in the

Constitution. It is to negotiate this balance between a decision that

commands broad confidence (nearing unanimity) as well as one which

can be taken without excessive delay or undue bargaining (nearing

simple majority) that the special majority requirement has been

theoretically propounded and practically used in several voting

decisions.

28. In light of the theoretical justifications for inclusion of super-majority

provisions, it is humbly submitted that such provision is justified in the

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NJAC Act as well. As propounded by Rousseau, the seriousness or

importance of a particular decision justifies the need for that decision

to be taken with unanimity or near unanimity, which can be achieved

by super-majority provisions such as the one in the NJAC Act. That

appointment of judges is a matter of immense public importance which

requires intense deliberation among constitutional functionaries is

beyond question. An important observation was made in this regard by

Bhagwati J.in SP Gupta v. Union of India 1981 Supp SCC

87(hereinafter the First Judges case) (at p. 231):

31....There must be checks and controls in the exercise of every

power, particularly when it is a power to make important and crucial

appointments and it must be exercisable by plurality of hands rather

than be vested in a single individual...

Again, in K. Veeraswami v. Union of India (1991) 3 SCC 655, Verma

J. (as he then was), held (at p. 751):

124. ...The collective wisdom of the constitutional functionaries

involved in the process of appointing a superior Judge is expected to

ensure that persons of unimpeachable integrity alone are appointed

to these high offices and no doubtful persons gain entryall the

constitutional functionaries involved in the process of appointment

of superior Judges should be fully alive to the serious implications of

their constitutional obligation and be zealous in its discharge in

order to ensure that no doubtful appointment can be made even if

some time a good appointment does not go through

29. Further, the special majority requirement is a device to balance

various significant values pertaining to the appointment of judges

judicial independence, accountability of the decision-making process,

checks and balances, democracy in particular the need for plurality in

decision-making in achieving the legislative policy to broad base the

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method of appointment of Judges in the Supreme Court and High

Courts, stated in the Statement of Objects and Reasons to the 99th

Amendment and the NJAC Act. Once Parliament deems the need for

broad-basing the process of appointment of judges significant enough

to warrant a special majority in voting, the exact majority specified is

a matter of giving effect to legislative policy that Courts ought not to

interfere in. In Pathumma v. State of Kerala (1978) 2 SCC 1, Fazal

Ali J. observed (at p. 9):

6.the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same.

30. That the Court shall not interfere in the manner of voting majorities

specified in the statute was specifically upheld in the context of

appointment in Centre for Public Interest Litigation v. Union of

India(2011) 4 SCC 1(at pp. 32-33):

79. One of the arguments advanced on behalf of the petitioner

before us was that the recommendation of the High-Powered

Committee under the proviso to Section 4(1) has to be unanimous. It

was submitted that the CVC was set up under the Resolution dated

11-2-1964. Under that resolution the appointment of the Central

Vigilance Commissioner was to be initiated by the Cabinet Secretary

and approved by the Prime Minister. However, the provision made in

Section 4 of the 2003 Act was with a purpose, namely, to introduce

an element of bipartisanship and political neutrality in the process

of appointment of the head of the CVC. The provision made in

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Section 4 for including the Leader of the Opposition in the High-

Powered Committee made a significant change from the procedure

obtaining before the enactment of the said Act. It was further

submitted that if unanimity is ruled out then the very purpose of

inducting the Leader of the Opposition in the process of selection

will stand defeated because if the recommendation of the

Committee were to be arrived at by majority it would always

exclude the Leader of the Opposition since the Prime Minister and

the Home Minister will always be ad idem.

80. It was submitted that one must give a purposive interpretation

to scheme of the Act. It was submitted that under Section 9 it has

been inter alia stated that all business of the Commission shall, as

far as possible, be transacted unanimously. It was submitted that

since in Vineet Narain case [(1998) 1 SCC 226 : 1998 SCC (Cri) 307]

this Court had observed that the CVC would be selected by a three-

member committee, including the Leader of the Opposition it was

patently obvious that the said committee would decide by unanimity

or consensus. That, it was nowhere stated that the committee would

decide by majority.

81. We find no merit in these submissions. To accept the contentions

advanced on behalf of the petitioners would mean conferment of a

veto right on one of the members of the HPC. To confer such a

power on one of the members would amount to judicial legislation.

Under the proviso to Section 4(1) Parliament has put its faith in the

High-Powered Committee consisting of the Prime Minister, the

Minister for Home Affairs and the Leader of the Opposition in the

House of the People. It is presumed that such High-Powered

Committee entrusted with wide discretion to make a choice will

exercise its powers in accordance with the 2003 Act objectively and

in a fair and reasonable manner. It is well settled that mere

conferment of wide discretionary powers per se will not violate the

doctrine of reasonableness or equality. The 2003 Act is enacted with

the intention that such High-Powered Committee will act in a

bipartisan manner and shall perform its statutory duties keeping in

view the larger national interest. Each of the members is presumed

by the legislature to act in public interest. On the other hand, if

veto power is given to one of the three members, the working of the

Act would become unworkable.

31. It will thus be seen that the instant model in the NJAC Act is quite

different. First, there is no requirement of unanimity. Secondly, there

is no concept of simple majority. Finally, the concept is one of special

20

majority where five out of six members have to affirmatively vote in

favour of a candidate meaning thereby if two vote against a candidate

the recommendation will not go through. It is open to Parliament to

choose any of the three methods. The method chosen in the instant

case is neither unique nor is it novel. Examples of this nature are

referred to hereinafter at paras 47(i)-(x).

32. The argument of the petitioner in the aforesaid case of Centre for

Public Interest Litigation v. Union of India that unanimity ought to

be a must for appointment to the post of Central Vigilance

Commissioner (CVC) was negativated since this Honble Court found

that Section 9 of the Central Vigilance Commission Act, 2003 did not

provide for a mandatory unanimity requirement but instead provided

for a simple majority vote where no unanimity was possible. The

argument that the Leader of the Opposition in the Lok Sabha would

always be isolated by the Prime Minister and the Home Minister was

also repelled holding that power was vested by law in high

constitutional functionaries and it was expected that all of them would

apply their minds and come to a decision.

b. Special majorities are used or proposed in different jurisdictions for

appointment of judges and other significant decisions to instill greater

public confidence in the process

33. It is humbly submitted that judicial appointments that have the

consent of the special majority enjoy greater public confidence due to

the participation of a plurality of stakeholders in the decision-making

21

process. In the context of the United States, the framers of the

American Constitution felt the need to counter majoritarianism through

the requirement of special majority in voting that, in their opinion,

was representative of the interests of the minorities along with that of

the majority. In The Federalist No. 73, Alexander Hamilton had

observed that:

..The first thing that offers itself to our observation, is the

qualified negative of the President upon the acts or resolutions of

the two houses of the legislature; or, in other words, his power of

returning all bills with objections, to have the effect of preventing

their becoming laws, unless they should afterwards be ratified by

two thirds of each of the component members of the legislative

body

But the power in question has a further use. It not only serves as a

shield to the Executive, but it furnishes an additional security

against the enaction of improper laws. It establishes a salutary check

upon the legislative body, calculated to guard the community against

the effects of faction, precipitancy, or of any impulse unfriendly to

the public good, which may happen to influence a majority of that

body

34. This thinking is reflected in several special majority requirements in

the United States Constitution including but not limited to Article V

regarding the proposal for constitutional amendments, Clause 2 of

Section 7, Article I regarding overriding presidential vetoes, Clause 6 of

Section 3, Article I regarding removal of Federal officers through

impeachment proceedings with conviction, Clause 2 of Section 2,

Article II regarding the ratification of treaties and Clause 2 of Section 5

of Article I regarding the expulsion of members from the House or

Senate (See Annexure IV).

22

35. In the specific context of appointment of judges, though confirmation

technically requires a simple majority, in effect a special majority of

the Senate is required for confirmation of a candidate nominated by

the President. This is because of Rule XXII of the Rules of the Senate

which in relevant part provides,

Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thus three-fifths of the total Senate (i.e. 60 out 100 senators) is

required for a motion of cloture, i.e. to bring a debate to a close and

proceed to a vote. This rule, commonly called a filibuster, was used to

block the nomination of Justice Abe Fortas, Associate Justice of the

Supreme Court as Chief Justice of the United States in 1969. (For more

details, see Denis Stven Rutkus, Supreme Court Appointment Process:

Roles of the President, Judiciary Committee and Senate (Congressional

Research Service, RL31989, February 2010, pp. 35-46).

36. As a result of this, academics have suggested that the voting

requirement in the Senate espouse this principle of super-majority

directly. This proposition has been justified keeping in mind the

increase of judicial power of courts and consequently the need for

greater accountability. Explaining this, Professor John Ferejohn,

Professor of Law, Stanford University said in his work titled

23

Judicializing Politics, Politicizing Law, Law and Contemporary

Problems (2002) (at pp. 66-67), says:

There is a mismatch between the positive conditions that

permit judicialization and the normative justification of judge-

made law. This is politically dangerous in various ways. It has

the effect of politicizing courts--making judicial decisions

appear to be politically motivated and making appointments to

the bench matters of partisan contention--of reducing the

legitimate abilities of the people or their representatives to

legislate, and, less often, of provoking crude and heavy-handed

electoral responses. There is a need, therefore, for courts to

take care when they relocate specific legislative issues to legal

settings, and taking such care requires the formulation of

normative standards to guide the allocation of legislative

authority

In the introduction, I suggested that it may make sense for

Americans to consider some reforms that might alter the

political dynamics of the Court. The reforms I suggested--

requiring a super majority in the Senate for appointments and

limiting justices to a single nonrenewable term--are already in

place in many European constitutional courts, and their

empirical experience might be informative. A super majority

requirement for appointment would mean that newly appointed

judges would have to be acceptable across party and

ideologicallines.

37. Hence, it is submitted that in light of the American context, the super-

majority voting requirement for judicial selection has been deemed to

ensure wider public confidence in the judiciary, on account of the

plurality in opinion in decision-making where all key stakeholders have

a say in the appointment of a candidate for judgeship.

38. Thesystemof judicial appointments in Germany requires the Bundestag

and the Bundesrat to vote upon every candidature for judgeship

through a special majority in order to allow for the participation of the

24

members from opposing political parties. The Federal Constitutional

Court Act, 1951 provides:

Article 6 (1) The judges to be elected by the Bundestag shall be elected indirectly. (2) The Bundestag shall, by proportional representation, elect a twelve-man electoral committee for the Federal Constitutional Court judges. Each parliamentary group may propose candidates for the committee. The number of candidates elected on each list shall be calculated from the total number of votes cast for each list in accordance with the dHondt method. The members shall be elected in the sequence in which their names appear on the list. If a member of the electoral committee retires or is unable to perform his functions, he shall be replaced by the next member on the same list. (3) The eldest member of the electoral committee shall immediately one weeks notice call a meeting of the committee to elect the judges and shall chair the meeting, which shall continue until all of them have been elected. (4) The members of the electoral committee are obliged to maintain secrecy about the personal circumstances of candidates which become known to them as a result of their activities in the committee as well as about discussions hereon in the committee and the voting. (5) To be elected, a judge shall require at least eight votes.

Article 7 The judges to be elected by the Bundesrat shall be elected with two thirds of the votes of the Bundesrat.

39. In Hong Kong as well, the process of judicial appointments requires

the vote of a special majority although the stakeholders involved differ

widely from the ones involved in the United States and Germany. In

fact, the process of judicial appointments in Hong Kong is similar to the

one envisaged under the NJAC Act with slight variations. The Hong

Kong Judicial Officers Recommendation Commission Ordinance

provides:

Section 3: (1) There is hereby established a Judicial Officers Recommendation Commission, which shall consist of- (a) the Chief Justice, who shall be the Chairman;

25

(b)the Secretary for Justice; and (c)7 members appointed by the Chief Executive of whom- (i) 2 shall be judges; (ii) 1 shall be a barrister and 1 shall be a solicitor, each holding a practising certificate issued under the Legal Practitioners Ordinance; and (iii)3 shall be persons who are not, in the opinion of the Chief Executive, connected in any way with the practice of law. (3) The Chairman and no fewer than 6 other members may exercise and perform any of the functions, powers and duties of the Commission. (3A) At a meeting of the Commission a resolution is effective if- (a) where 7 members are present, at least 5 vote in favour; (b)where 8 members are present, at least 6 vote in favour; and (c)where 9 members are present, at least 7 vote in favour.

40. Thus the Hong Kong Judicial Officers Recommendation Commission

(JORC) is composed of nine members including the Chief Justice,

who is also the Chairman, the Secretary of Justice and seven other

members including one barrister, one solicitor, two judges and three

independent members wholly unconnected with the practice of law. A

resolution by the JORC is rendered effective in the event that at least

five out the seven members present or at least six out of the eight

members present, or at least seven out of the nine members present

vote in favour of the resolution. This demonstrates a clear case of the

requirement of special majority for the judicial appointment process.

41. Based on the above, it is most respectfully submitted that there exists

sufficient precedents worldwide that demonstrate the relevance and

applicability of the rules of special majority for the purpose of

appointment of judges. The special majority requirements

incorporated in the impugned provisions under the NJAC seek to instil

greater public confidence in the judiciary through a participatory

process that takes into consideration a variety of opinions.

26

42. The presence of different constitutional functionaries on the NJAC is in

furtherance of the fundamental principle of checks and balances,

which acts as a fetter on every single constitutional authority as well as

to provide varied inputs in the selection process. The plurality in

composition of the NJAC is such that it would ensure that each

functionary who forms part of the Commission would be accountable to

each other, by means of the system of checks and balances.

43. The inclusion of the Law Minister in the NJAC is to ensure that no one

organ has unfettered discretion to appoint judges. Further executive

participation is essential for bringing to the information of the NJAC

information about the character and conduct of a particular candidate

that is only available to the executive. Besides, the Law Minister is one

out of a Commission of six members, so apprehensions regarding the

executive usurping the judiciarys power are largely unfounded. In

fact, he cannot even unilaterally exercise a veto of any kind over any

appointment. The detailed reasons for his inclusion may be found in

paras 36-63of Part III of the Written Submissions.

44. In the same vein, the two eminent persons on the Commission are

independent members to act as a check against the influence of the

executive as well as the judiciary in appointments as well as provide a

firm foundation for a diverse judiciary. Their presence is intended to

ensure that appointees are neither too close to the executive member

who is part of the selection process nor the judges on the NJAC. This

independent role is evident from the fact that they are chosen by a

27

tripartisan panel comprising the Chief Justice of India, the Prime

Minister and the Leader of the Opposition in the Lok Sabha, or where

there is no such leader, the Leader of the single largest opposition

party in the Lok Sabha. This is necessary to ensure true judicial

independence and appropriate checks and balances by introducing an

element of detachment in the appointments process. Thus, the

participation of the eminent persons on the NJAC makes it a body

independent of both the executive as well as the judiciary. The

detailed reasons for their inclusion may be found in paras 11-35H of

Part III of the Written Submissions.

45. It is humbly submitted that the diverse composition of the NJAC

ensures plurality of voices in the decision-making process which is

intended to act as a check against arbitrary decision-making. In order

to ensure that the said plurality is not merely a formal requirement but

is also applicable in practice, the special majority provision is

essential. The fact that a candidate who is appointed as a judge has

been approved by more than one bloc/group of people would lend

greater credence to his/her appointment. It will also ensure that a

candidate is appointed by unanimous support or close to unanimous

support and not just because he enjoys the support of any one

particular bloc. This strengthens the public perception of the

appointment process being impartial and unbiased as the NJAC cannot

recommend any person for appointment unless at least a majority of

judges in addition to both eminent persons or one eminent person and

the Law Minister have positively affirmed a particular candidate. The

28

non-partisan nature of this recommendation ensures public confidence

in the judiciary.

46. In light of the above, it is humbly submitted that the provision in the

NJAC Act requiring super-majority is justified by sound theoretical

considerations and international precedents. Additionally, it helps to

secure checks and balances as well as public confidence in the

judiciary by ensuring that judges are appointed with broad support and

are not seen as representatives of any particular bloc or group.

c. Special majority requirements in voting exist widely in the Constitution

and other statutes in India

47. The use of special majorities in voting procedures is common and

found across a range of central and state statutes in India. Ten such

illustrative provisions from the Constitution, central statutes and state

statutes, and their varying requirement for a vote (greater than simple

majority, less than unanimity) have been extracted below that

demonstrate such wide usage:

i. Article 61 (2)(b) of the Constitution of India - Procedure for

impeachment of the President.

(1) When a President is to be impeached for violation of the

Constitution, the charge shall be preferred by either House of

Parliament.

(2) No such charge shall be preferred unless (a) the proposal to prefer

such charge is contained in a resolution which has been moved after at

29

least fourteen days notice in writing signed by not less than one-fourth

of the total number of members of the House has been given of their

intention to move the resolution, and (b) such resolution has been

passed by a majority of not less than two-thirds of the total

membership of the House.

ii. Article 124(4) of the Constitution of India Impeachment of Judge

of Supreme Court

(4) A Judge of the Supreme Court shall not be removed from his office

except by an order of the President passed after an address by each

House of Parliament supported by a majority of the total membership

of that House and by a majority of not less than two-thirds of the

members of that House present and voting has been presented to the

President in the same session for such removal on the ground of proved

misbehaviour or incapacity.

iii. Article 169(1) of the Constitution of India - Abolition or creation of

Legislative Councils in States

(1) Notwithstanding anything in article 168, Parliament may by law

provide for the abolition of the Legislative Council of a State having

such a Council or for the creation of such a Council in a State having no

such Council, if the Legislative Assembly of the State passes a

resolution to that effect by a majority of the total membership of the

Assembly and by a majority of not less than two-thirds of the members

of the Assembly present and voting.

30

iv. Article 244A(3) of the Constitution of India - Formation of an

autonomous State comprising certain tribal areas in Assam and

creation of local Legislature or Council of Ministers or both

therefor

(3) An amendment of any such law as aforesaid in so far as such

amendment relates to any of the matters specified in sub-clause (a) or

sub-clause (b) of clause (2) shall have no effect unless the amendment

is passed in each House of Parliament by not less than two-thirds of the

members present and voting.

v. Article 312(1) of the Constitution of India All-India Services

(1) Notwithstanding anything in [Chapter VI of Part VI or Part XI], if the

Council of States has declared by resolution supported by not less than

two-thirds of the members present and voting that it is necessary or

expedient in the national interest so to do, Parliament may by law

provide for the creation of one or more all India services [(including an

all-India judicial service)] common to the Union and the States, and,

subject to the other provisions of this Chapter, regulate the

recruitment, and the conditions of service of persons appointed, to any

such service.

vi. Article 352(6) of the Constitution of India - Proclamation of

Emergency

(6) For the purposes of clauses (4) and (5) (which deals with

proclamation of emergency and its extension), a resolution may be

passed by either House of Parliament only by a majority of the total

31

membership of that House and by a majority of not less than two-thirds

of the Members of that House present and voting.

vii. Article 368(2) Of The Constitution Of India - Power of Parliament

to amend the Constitution and procedure therefor

[(2)] An amendment of this Constitution may be initiated only by the

introduction of a Bill for the purpose in either House of Parliament,

and when the Bill is passed in each House by a majority of the total

membership of that House and by a majority of not less than two-thirds

of the members of that House present and voting, [it shall be

presented to the President who shall give his assent to the Bill and

thereupon] the Constitution shall stand amended in accordance with

the terms of the Bill:

Provided that if such amendment seeks to make any change in

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI,

or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of

not less than one-half of the States by resolutions to that effect passed

by those Legislatures before the Bill making provision for such

amendment is presented to the President for assent.

32

viii. Proviso to Clause (2) Of Entry 10 Of The Sixth Schedule Of The

Constitution Of India - Power of District Council to make

regulations for the control of money-lending and trading by non-

tribals

(2) In particular and without prejudice to the generality of the

foregoing power, such regulations may

(a) prescribe that no one except the holder of a licence issued in that

behalf shall carry on the business of money-lending;

(b) prescribe the maximum rate of interest which may be charged or be

recovered by a money-lender;

(c) provide for the maintenance of accounts by money-lenders and for

the inspection of such accounts by officers appointed in that behalf by

the District Council;

(d) prescribe that no person who is not a member of the Scheduled

Tribes resident in the district shall carry on wholesale or retail business

in any commodity except under a licence issued in that behalf by the

District Council:

Provided that no regulations may be made under this paragraph unless

they are passed by a majority of not less than three-fourths of the total

membership of the District Council:

ix. Section 9 Of The Societies Registration Act, 1860 - Recovery of

penalty accruing under bye-law (Central Act)

33

Whenever by any bye-law duly made in accordance with the rules and

regulations of the society, or, if the rules do not provide for the

making of byelaws, by any bye-laws made at a general meeting of the

members of the society convened for the purpose (for the making of

which the concurrent votes of three-fifths of the members present at

such meeting shall be necessary), any pecuniary penalty is imposed for

the breach of any rule or bye-law of the society, such penalty, when

accrued, may be recovered in any court having jurisdiction where the

defendant shall reside, or the society shall be situate, as the governing

body thereof shall deem expedient.

x. Section 24(1)(c) Of The Assam Panchayati Raj Act, 1986 - Removal

of President or Vice-President or Member of a Gaon or Anchalik

Panchayat or Mahkuma Parishad (State Act)

(1) A President or a Vice-President or a member of a Gaon Panchayat or

an Anchalik Panchayat or a Mahkuma Parishad shall immediately cease

to hold office.

(c) a President or a Vice-President of a Gaon Panchayat or an Anchalik

Panchayat or a Mahkuma Parishad shall immediately cease to hold

office if by three-fifth majority of votes of members present, a motion

of non-confidence is passed by them in a meeting of the Gaon

Panchayat or the Anchalic Panchayat or the Mahkuma Parishad, as the

case may be, where at least a minimum of two-thirds of total number

of members is present

34

Provided that atleast seven days notice in writing shall be given by the

intending movers of the non-confidence motion to the President and

the Vice-President of the Gaon Panchayat or the Anchalik Panchayat or

the Mahkuma Parishad, as the case may be, before such a motion can

be discussed.

63. Besides, evidence of such a special majority can also be seen in the

Third Judges Case in relation to the operation of the collegium. It

held (at p. 765):

22. It is, we think, reasonable to expect that the collegium would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the Second Judges case [(1993) 4 SCC 441 : AIR 1994 SC 268 : 1993 Supp (2) SCR 659] has said (at SCC p. 704, para 478) that if the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the Judges forming the collegium express strong views for good reasons that are adverse to the appointment of a particular person, the Chief Justice of India would not press for such appointment.

64. It is clear from the illustrative examples above that the use of special

majorities is widespread in the Constitution and can also be seen in

central and state legislations. It has been used to require majorities

35

greater than simple majority and less than unanimity in various voting

procedures, especially pertaining to the exercise of very significant

constitutional powers such as amending the Constitution, creating an

all-India service, approving the proclamation of Emergency and

impeaching a judge of the Supreme Court or High Courts. At the same

time, the requirement has been applied to a wide range of bodies

members of Parliament, local self-governments and statutory bodies.

65. Thus in light of the above, it is most respectfully submitted that the

requirement of special majority in the NJAC Act is supported by clear

legislative precedent in this regard. Hence its incorporation is not

anomalous in Indias constitutional framework but on the

contraryrequired as a clear expression of parliamentary will in devising

a broad-based methodof appointment of judges to the Supreme Court

of India and High Courts.

II. The requirement of special majority in the decision to recommend

judges for appointment to the President by the NJAC does not

negate the independence of the judiciary as contended by the

petitioners

a. Basic structure cannot be used to test the validity of ordinary

legislation

66. It has been submitted by the petitioners that by virtue of the impugned

provisions, any two members of the NJAC can veto a proposed

candidature for judicial appointment. This implies that non-judges can

veto proposals for appointment made by judges. This, according to the

36

petitioners, abrogates judicial independence that is part of the basic

structure of the Constitution.

67. It has already been demonstrated, on the basis of established

precedent of this Honble Court, that an ordinary legislation cannot be

struck down for being violative of the basic structure of the

Constitution. Since the case of the petitioners is entirely contingent on

the possibility of the provisions of the NJAC Act allowing any two

members of the NJAC (non-judges) to veto candidates for judicial

appointment, being struck down for being violative of the basic

structure, it is clearly contrary to such precedent that this Honble

Court today is bound by. On this basis itself, the contention of the

petitioners must be rejected.

b. Viewing the NJAC as three distinct blocs is erroneous; each

functionary has different inputs to provide for the selection of

judges

68. There is no warrant for supposing, as the petitioners have, that the

non-judges on the NJAC will act as a structured bloc; or for that matter

the three judges will act as a structured bloc and consequently

structured bargaining will ensue. No case is made out for either

judges and non-judges speaking in a collective voice. The two

eminent members and the Law Minister may be strangers to each

other. Once eminent/ distinguished people are appointed as eminent

persons, it is expected, in the ordinary course of events that the entire

body will work together, in right earnest, and in public interest to

37

ensure that no bad appointment goes through while making endeavours

to get the best candidates for judicial office.

69. The Statement of Objects and Reasons of the 99th Amendment and

NJAC Act read,

The proposed Bill seeks to broad base the method of appointment of

Judges in the Supreme Court and High Courts, enables participation

of judiciary, executive and eminent persons and ensures greater

transparency, accountability and objectivity in the appointment of

the Judges in the Supreme Court and High Courts.

70. The NJAC manifests such an integrated participatory consultative

process whose diverse members are expected to select the most

suitable persons for appointment. It must be assumed that in exercise

of their functions, all the functionaries will perform their duties

collectively to select the best candidates for judicial office, which is

the constitutional purpose of the provision for appointment. In

assessing the constitutionality of the vesting of such power in high

constitutional functionaries, the Court must be cognizant of the

principle of constitutional trust. The relevance of this principle was

most recently affirmed by this Honble Court in Manoj Narula v. Union

of India (2014) 9 SCC 1 per Misra J. (at p. 53):

92. Centuries back what Edmund Burke had said needs to be

recapitulated: -

All persons possessing a position of power ought to be strongly and

awfully impressed with an idea that they act in trust and are to

account for their conduct in that trust to the one great Master,

Author and Founder of Society.

93. This Court, in Delhi Laws Act, 1912, In re [AIR 1951 SC 332],

opined that the doctrine of constitutional trust is applicable to our

Constitution since it lays the foundation of representative

democracy. The Court further ruled that accordingly, the Legislature

cannot be permitted to abdicate its primary duty viz. to determine

38

what the law shall be. Though it was stated in the context of

exercise of legislative power, yet the same has signification in the

present context, for in a representative democracy, the doctrine of

constitutional trust has to be envisaged in every high constitutional

functionary.

71. This principle of constitutional trust was specifically applied to

judicial appointments by the collegium in Mahesh Chandra Gupta v.

Union of India (2009) 8 SCC 273. It was held by Kapadia J. (as he then

was) (at p. 309):

83.....At the end of the day trust in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process.... It is humbly submitted that this principle, applied to the collegium,

must also apply to the NJAC.

72. In this light, the view of the petitioners to consider the NJAC as an

aggregation of three blocs judiciary, executive and eminent persons,

and apprehend consequential structured bargaining is entirely without

basis. Any argument that they will vote in blocs with the judiciary

forming one bloc, the eminent persons aided by the executive another,

is based entirely on supposition and contrary to both the principle of

constitutional trust that the NJAC must enjoy as a collective and each

of its members must enjoy as high constitutional functionaries. It is

also contrary to the participatory nature of a commission model of

appointments, which envisages a plurality of viewpoints as integral

facets of a decision to appoint a suitable person as judge. Hence the

argument of the petitioners that the NJAC must be viewed as an

39

aggregate of distinct blocs and then suggesting that in particular cases

the non-judicial bloc vetoing the view of the judicial bloc is violative of

the basic structure of the Constitution, ought to be rejected.

73. Further, it is humbly submitted that the inclusion of all members in

the NJAC envisages a specific function for each of them. Even if it is

assumed that the NJAC is to be seen as a combination of disaggregated

blocs, the same must be limited only to the extent that each has

significant and distinct inputs to provide with regard to appointment,

not that they represent different interest groups.

74. The judicial members on the NJAC may adjudge legal acument while

other aspects of suitability would be seen by the executive who, would

be in a better position to provide relevant inputs about the character

and conduct of a judge especially for lawyers who are to be appointed

judges given the fact-finding facilities available to the executive

(recognised by Verma J in the Second Judges Case). The eminent

persons will assess the overall suitability of the candidate, including his

character, conduct, remain cognizant of the need for a diverse

judiciary and provide an independent perspective thereby acting as a

check on any possibility of collusive functioning of any other members.

75. In this light, it is humbly submitted that the purpose of the

requirement of special majority in the matter of appointments is to

ensure that a cross-section of persons who have to assess different

qualities of a potential judge agree to a particular candidature.

Without such a provision, potential appointees might be seen as

candidates of particular members on the NJAC alone. The provision of

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special majority carries forward the logic of the NJAC which brings

together members of the judiciary and the executive, and the eminent

persons, by ensuring that each member has a significant and not

merely a formal presence on the commission. In this way it gives effect

to the idea of a participatory process for appointment of judges

envisaged during the drafting of the Constitution, that is diverse and

plural.

c. The only repercussion of such super-majority is taking away absolutist

primacy of judges in appointment which is not a violation of judicial

independence amounting to an abrogation of the basic structure

76. The only repercussion of the requirement of such super-majority is the

taking away of an absolutist primacy of judicial opinion in insisting on a

particular candidate in the matter of appointments. This implies that

only in the limited situation that all judges agree on a particular

candidate (which is a matter of speculation since judges are free to

decide independently and not in a bloc), and two or three of the non-

judges do not (which is equally a matter of speculation since they

provide entirely distinct inputs), the fact that a recommendation

cannot be made is contrary to the principle of judicial primacy and

consequently a violation of judicial independence.

77. It is humbly submitted that this contention is without any basis. As has

already been contended, primacy in judicial appointments does not

signify that the CJI/judiciary has an untrammelled right to insist on an

appointment contrary to the opinion of the executive. On the contarry,

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it was expected that constitutional functionaries would uphold the

participatory nature of the joint venture and attempt to arrive at a

consensus. Absolutist judicial primacy in appointments was never

intended.

78. It is humbly submitted that the arguments which insist on primacy of

the judiciary too are based on the misconceived notion that all three

judges on the NJAC will act in unison as one bloc and speak in one

voice. It negates the possibility of the judges acting independently or

having views different from each other. The broad-based and

participatory nature of the NJAC does not contemplate that the three

judges be viewed as a single entity. Each judge is expected to

independently apply his or her mind and express different views and

perspectives, thereby adding an element of plurality to the

deliberations of the Commission. Verma J. (at p. 683) in the Second

Judges case also spoke of the desirability of consultation between the

Chief Justice and his brother judges, for the reason that they ensured

plurality of viewpoints in the matter of appointments:

427....A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between themselves, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provisions were enacted.

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79. If the judges were all expected to speak in one voice in the collegium,

then the idea of the collegium itself would be futile. Hence it is

illogical to now assume that the judges on the NJAC will do so. Finally,

it must be reiterated that arguments based on how judges and other

members of the NJAC will vote are based entirely on supposition.

There is no factual basis that exists to rebut the presumption of

constitutionality that the NJAC Act must enjoy. Hence even if

absolutist primacy is taken away, the same cannot amount to a

violation of judicial independence that abrogates the basic structure of

the Constitution. In light of the above, it is humbly submitted that the

impugned provisions of the NJAC Act are entirely constitutional.

80. Without prejudice to the above submissions, it is humbly submitted

that even under the NJAC, the judiciary enjoys pre-eminence inasmuch

as it has predominant representation with three judges as opposed to

two eminent persons and one member of the Executive. In fact, owing

to the second proviso to Section 5(2) and Section 6(6) of the NJAC Act,

two judges who disapprove of a particular candidate can ensure that

such a person is never appointed. Through a purely numerical

assessment, it is evident that the right to reject a candidate approved

by the judges on the NJAC cannot be exercised by the executive alone

but requires at least one other member who does not represent the

executive i.e. one eminent person. Hence in effect the NJAC Act

represents a dilution of the role of the executive. Thus unless majority

of the judges on the NJAC are in favour of a particular candidate, the

appointment of the candidate will not go through; the executive has no

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analogous power. In light of this, it is respectfully submitted that

judges continue to enjoy considerable preeminence under the NJAC.

81. In light of the above arguments, it is humbly submitted that:

a. There exists sufficient basis for upholding the requirement of special

majorities in the appointments of judges on the basis of the following

contentions:

i. The requirement of special majority is theoretically justified

for decisions of public significance such as appointment of

judges.

ii. For such decisions, special majority requirements are designed

to instil greater public confidence.

iii. They represent the will of Parliament balancing several factors

that must be secured in the process of appointment of judges

including judicial independence, checks and balances and

plurality in decision-making.

iv. Several legislative precedents of special majority requirements

exist widely in the Constitution of India and central and state

statutes, besides constitutions of other countries and their

method of appointment of judges.

b. The requirement of special majority in voting does not negate the

independence of the judiciary in any manner:

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i. Ordinary legislation such as the NJAC Act can only be tested

for legislative competence and conformity with fundamental

rights and not on the touchstone of the basic structure of the

Constitution

ii. Even on the substance of the claim, the NJAC Act enjoys a

presumption of constitutionality which has not been rebutted

by the petitioners with any hard facts but has instead been

sought to be displace merely through surmises and speculation.

iii. There is a distinct rationale for including each of the members

of the NJAC who bring distinct inputs into the process of

appointment to secure an independent judiciary.

iv. The principle of constitutional trust requires that in the

absence of facts to the contrary, the Court consider the NJAC

to exercise its powers in good faith to secure its stated

purpose.

v. Looking at the NJAC as distinct blocs of judges, the executive

and eminent persons and apprehending any two blocs vetoing

decisions of a third is contrary to the principle of

constitutional trust that the NJAC must enjoy.

vi. In any event judges have preeminence on the NJAC given that

they are most widely represented and no recommendation of

the NJAC can be made without a positive recommendation by a

majority of judges.

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D. The NJAC Act does not suffer from the vice of excessive delegation

82. The petitioners have specifically alleged with regard to the NJAC Act

that:

Not only does it empower the National Judicial Appointments Commission to formulate regulations in respect of criteria of suitability, other procedure & conditions for selection and appointment of Judges to the Higher Judiciary, but also provides that any such regulation made by the Commission shall be subject matter of approval by both Houses of the Parliament.[Ground M(ii)- Writ Petition No. 13 of 2015 filed by Supreme Court Advocates-on-Record Association]

83. In other words, the provisions of the NJAC Act which empower the

NJAC to formulate regulations to carry out its provisions have been

alleged to suffer from the vice of excessive delegation. It is humbly

submitted that the provisions of the NJAC Act that delegate the power

of formulating regulations to the NJAC in regard to suitability criteria

and other procedure and conditions for selection and appointment do

not amount to excessive delegation of essential legislative functions or

suffer from any like infirmity.

I. Article 124, as originally enacted, laid down only basic eligibility

for appointment of judges

84. It is humbly submitted that under the originally enacted Article 124

and Article 217, only the basic eligibility criteria for appointment of

judges of the Supreme Court and the High Courts respectively was laid

down. The conditions for the suitability of a candidate, or guidelines to

determine such suitability did not find enumeration in Article 124 or

Article 217. The reason is not accidental but deliberate. The power

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was vested in two high functionaries. They would devise their

procedure and aspects of suitability. Administratively, the

Memorandum of Procedure has been laid down agreed to jointly by the

Chief Justice of India and the Ministry of Law and Justice, Government

of India, revised from time to time.

The distinction between eligibility and suitability is well-known.

Reference may be made to Mahesh Chandra Gupta v. Union of India

(2009) 8 SCC 273 pp. 290-91) cited earlier.

85. In light of the aforementioned, it is humbly submitted that that the

procedure and conditions of appointment are currently