1

R.N Patel Ipcowala School of Law & Justice

Intra College Moot Court Competition

Challenging Constitution (99th

) Amendment Act, 2014 and Constitution Bill

(121st), 2014 and National Judicial Appointment Commission Act, 2014 (No. 40 of

2014) through Writ Petition before Hon’ble Supreme Court of Indiana

Petitioner

By- Dhruvraj R. Bhavsar

BBA LL.B 15 Sem-VII

2

In the Supreme Court of Indiana

Writ Petition No.______ of 2015

In the matter under Article 21,

50, 124, 217 read with Article

137 of the Constitution of

Indiana, 1950

And

In the matter under the

provision of Section 5, 6, 7,

12, 13 of National Judicial

Appointment Commission Act,

2014;

And

In the matter between;

Mr. Subramanium…………………………………. Petitioner

Versus

Union of India………………………………………Respondent

With reference of Mr. Nikhil Goel Advocate on Record, Supreme Court of Indiana

3

TO,

THE HON’BLE CHIEF JUSTICE OF

INDIANA AND OTHER HON’BLE

JUDGES OF SUPREME COURT OF

INDIA

THE HUMBLE PETITION

OF THE PETITIONER

ABOVENAMED;

List of Documents

Sr. No. Document Name Annexure Page No.

1 The Gazette of INDIANA 1 1-5

2 Article 124 & 217 of The Constitution 2 6-7

3 Press Information Bureau Release NJAC Notified 23.04.15 3 8

4 Past Proposals Since 1945 4 9-13

5 NJAC BILL,2014 Bill No. 96 of 2014 5 14-22

6 Provisions and its interpretation 6 23-30

7 RGICS Legislative Brief January 2, 2014 on JAC 7 31-38

8 PRS Legislative Research 8 39-40

9 The Hindu and Times of India Reports 9 41-46

10 The Times of India Report 10 47-48

11 For Reference 11 49

12 VETO 12 50-52

13 TOI June 6, 2015 13 53

14 Against NJAC 14 54-57

15 Criticism of System 15 58-60

16 Supreme and High Court Judges Appointment 16 61-62

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17 TOI June 15, 2015 17 63-65

18 Firstpost NJAC Hearing on Mukul Rohtagi, TOI, 18 66-71

19 Firstpost Collegium system not perfect says former CJI 19 72-78

20 Eminent person Removal 20 80-84

21 Article 137 and 145 21 85-86

22 Choosing Judge in Canada 22 87-89

23 Appointment and Removal of Judges in Australia 23 90-107

24 Process of Appointment of Judges in USA by Mr.CHEUNG 24 108-128

25 Article on NJAC by Student of Nirma University Sarthan

Sonwalkar

25 129-132

5

Index of Authority

Cases Referred

1. S.P Gupta Vs. Union of India (AIR 1982 SC 149)

2. Supreme Court On Record Association and another vs. Union of India (1993 (4) SCC

441) (AIR 1994 SC 268)

3. Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273

4. Union of India Vs. Sankal Chand Himatlal (1997) SCC (4) 193

5. Subhash Sharma v. Union of India AIR 1991 SC 631

6. 1993 (4) SCC 441 para 331 at page 647, para 421 at page 680

7. Rohtas Bhankhar vs. Union of India (2014) 8 SCC 872

8. State of Karnataka vs. Uma Devi (2006) 4 SCC 1

Articles Referred

Press Information Bureau Govt. of India April 13, 2015 18:52 IST

file:///C:/Users/ubi/Desktop/NJAC%20Links/PROCEDURE%20OF%20APPOINTMEN

T%20OF%20THE.html on June 10, 2015 3:30pm

http://onelawstreet.com/2015/04/of-reference-to-larger-bench-and-njac-challenge-

petition-some-points-for-consideration/ by RAVI PRAKASH APRIL 15, 2015

http://lawmantra.co.in/aiba-seeks-presidential-reference-on-controversial-collegium-

and-njac-issues-as-appointment-of-at-least-125-judges-for-various-high-courts-is-

hanging-fire/ by Dr. Adish Agrawal Sr. Advocate President AIBA

http://www.lawyersupdate.co.in/LU/1/1591.asp By N.h Hingorani, Senior Advocate

Supreme Court of India

https://indconlawphil.wordpress.com/2015/06/09/guest-post-the-njac-and-an-

unconventional-constitutional-convention/ by Akil Deo on June 9, 2015 @9:42AM

dissenting judgment of Ahmadi J. dated August 24, 1993

http://mulnivasiorganiser.bamcef.org/?p=482 by ATIN KUMAR DAS LL.M Ist

YEAR.NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

http://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/

Posted in Indian Constitution by Vijay Jaiswal On August 29, 2013.

6

http://onelawstreet.com/2015/04/of-reference-to-larger-bench-and-njac-challenge-

petition-some-points-for-consideration/ By RAVI PRAKASH ·APRIL 15, 2015

7

Statement of Jurisdiction

Petitioner challenges Constitutional validity of National Judicial Appointment Commission

under original jurisdiction through Writ Petition under Article 32 of Supreme Court of Indiana.

The Petitioner shall accept any Judgment and/or Interim order of the Court as final and binding

and shall execute it in its entirety and in good faith.

The Petitioner affirms that present issue is not under challenge in any other court.

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Facts of the case

State of Indiana in its constitution has provided the provisions for appointment of judges i.e.

Article 124 and 217 for Supreme Court and high court respectively by adjudging three cases.

Collegiums system was given a birth to in the advocate on record association case or the second

judge’s case in 1993 judgment which was confirmed and given a climb to in 1998 judgment

thereby reforming collegiums of Judges for appointment and transfer of Supreme Court and high

court judges.

Recently the parliament of Indiana has struck down the previous collegiums system passing a

new Act called National Judicial appointment commission Act for the appointment of judges. By

this act judicial appointment commission will be established with a power to appoint the judges

of supreme courts and High court.

Government notified the act on April 13, 2015.

The Acts provide for a transparent and broad-based process of selection of Judges of the

Supreme Court and High Courts by the National Judicial Appointments Commission (NJAC).

The NJAC would be chaired by the Chief Justice of India as in the earlier collegium system. The

NJAC membership would include two senior most Judges of the Supreme Court, the Union

Minister of Law and Justice, two eminent persons to be nominated by a committee of the Prime

Minister of India, the Chief Justice of India, and the Leader of the Opposition in the House of the

People, or if there is no Leader of the Opposition, then the Leader of the single largest

Opposition Party in the House of the People. With a view to ensuring that the composition of the

National Judicial Appointments Commission is inclusive, the Act provides that one of the

eminent persons shall be nominated from amongst persons belonging to the Scheduled Caste, the

Scheduled Tribes, Other Backward Classes, Minorities or Women. The NJAC will frame its own

regulations. 1

Mr. Subramanium who is social worker has challenged Judicial appointment commission Act

contending that it has violated the basic structure of the Constitution that guarantees an

independent judiciary guaranteed by article 50, to the citizen to protect their fundamental rights.

1 Press Information Bureau Govt. of India April 13, 2015 18:52 IST

9

Issues Raised

1. Provisions of the said act violate Article 50, assuring an independent judiciary, which is,

believed to be basic tenet, of the said Constitution or not?

1.1 Provisions of the said act such as section 6(7) (Particularly interference of Chief Minister

being executive body), Section 12(e) (For framing criteria of appointment), Section 13

allowing legislative and executive bodies to interfere in appointment of judges are not

tenable Constitutional law.

2. Whether interpretation of second and third judges case, giving birth to a collegium

system, is constitutionally valid or not?

2.1 The word ‘Consultation’ of Article 124 of the said Constitution has been misinterpreted,

ignoring importance to presidential power, since 1993 judgment, which was wrongly

confirmed and given assent by 1998 judgment.

2.2 Section 7 read with section 5 & 6, are giving no adherence to Article 124 of the said

Constitution.

3. Criteria for appointment of judges should be set by prioritizing its framework.

4. Whether the bench is vested with Constitutional validity to adjudicate the controversy of

Conflict of Interest of Collegium - NJAC or not?

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Argument Advanced

1. Provisions of the said act violate Article 50, assuring an independent judiciary,

which is, believed to be basic tenet, of the said Constitution or not?

PETITIONER MOST HUMBLY AND RESPECTFULLY SHEWETH;

THAT the new act consists of SIX members. The Chief Justice, Two senior most judges of

Supreme Court, Union Minister of Law and Two eminent persons. The said eminent persons

are to be appointed by the consortium of Chief Justice of India, Prime Minister and person

from single largest opposition party.

THAT it has been a matter of high level of discussion earlier and as on today that, who will be

those two eminent personalities. Whether they will be from Legislatures or Executive or

Judiciary? They will be Ex-judge? Film stars? Litigants? Army officials? Or the person himself

who is being considered for appointment. What are the eligibility criteria he shall be selected to

hold that post? This particular provision of two eminent persons is purely vague and loose in

the eyes of law.

THAT inclusion of prime minister and person from single largest opposition party breached the

independency of judiciary. Because as per the original constitutional scheme only and only the

president, in consultation with Chief Justice of Indiana for Supreme Court judge and Chief

Justice of High Court for High court judge, is vested with authority for appointing judges. Even

though prime minister being head of executive wing, his words are considered and that is

abridgement of the independency of judiciary.

THAT it must a matter of debate that, how prime minister can have knowledge of functions

and duties of judiciary? Here, the basic tenet of separation of power may be recollected.

THUS inclusion of Prime Minister in selection of two eminent persons and unclear selection

criteria for those two eminent persons, render this act unlawful an violative of Independency of

Judiciary.

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THAT the term Independency of Judiciary is, as on today, unclear even after years of its

existence. The Constitution by words and provisions talk about independent judiciary, but

nowhere has it clearly defined what exactly mean.

THAT the object behind the Directive Principle is to secure the independence of the judiciary

from the executive. Art. 50 says that there shall be a separate judicial service free from

executive control.

The primary talk on the independence of the judiciary is based on the doctrine of separation of

powers which holds its existence from several years. The doctrine of separation of powers talks

of the independence of the judiciary as an institution from the executive and the legislature.2

THAT the framers of the Constitution were inclined towards independent judicial system the

country should have so as to maintain the democratic sense and such judicial system works as a

custodian to the fundamental rights of the citizen. This concern of the members of the

constituent assembly was responded by Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both

independent of the executive and must also be competent in itself. And the question is how

these two objects can be secured“.

THAT “a society could be created only by guaranteeing the fundamental rights and the

independence of the judiciary to guard and enforce those fundamental rights. Also in a country

like India, the independence of the judiciary is of utmost importance in upholding the pillars of

the democratic system hence ensuring a free society.”3

It is a matter of fact that art. 124 substantially empower President by giving discretionary

powers to appoint judges. Here, no question should arise with regards to primacy and

interference of any of the wing in any such appointment.

2 http://mulnivasiorganiser.bamcef.org/?p=482 by ATIN KUMAR DAS LL.M Ist YEAR.NATIONAL LAW

INSTITUTE UNIVERSITY BHOPAL 3 ibid

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THAT scheme of the original constitution empowers President, by bestowing discretionary

authority to Consult Supreme Court and High Court Judges, to appoint and elevate the

members of judiciary. The president, under Indiana’s legal system is construed to be an

executive member and he is the omnipotent authority for so doing. No other person, other than

executive, according to the constitution, is having legal authority to interfere in the judge’s

appointment system.

Nevertheless, the Court opined that the judiciary itself will be more well informed compared to

the executive when it comes to judges suitability. Therefore the court interpreted the word

‘consultation’ in Article 124 to mean ‘concurrence’ only opinion is needed, but not binding

words, from judiciary. Judiciary can never be vested with final authority of appointment but

the 1993 and 1998 judgments did.

THAT, three distinct spheres of system of Indiana is Judiciary, Executive and Legislatures

vested with appropriate powers to take decisions. With a proviso that none of them should

interfere and interrupt or interlope in the decisions and function of the other.

THAT independence of the judiciary, which is sine qua non in a system, means that the

judiciary as an organ of the government should be free from influence and control of the other

two organs i.e. the executive and the legislature. Freedom from the influence and control of the

executive is of crucial importance. It is important also for individual freedom, that the judges

give their verdict without fear or favor. It refers to an environment where the judge can

pass impartial judgments.4

THAT Independence of judiciary has been repeatedly held by the Supreme Court to be a basic

feature of the Constitution SCAORA vs. UOI.5

4 http://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/ Posted in Indian

Constitution by Vijay Jaiswal On August 29, 2013. 5 1993 (4) SCC 441 para 331 at page 647, para 421 at page 680

13

THAT it is a matter of fact that the collegium is proved to be major failure but it does not mean

that a new legislation, by violating constitutional purposes and hindering independency of

judiciary, one of the basic tenet, by allowing executives and legislatures will appoint judges.

THAT independence of the judiciary is a basic feature of the constitution and that the exclusion

of the final words of the executive in the matter of appointment of judges is the only way to

maintain the independence of the judiciary.

THAT non transparency of the current collegium system should not be made a pretext for

giving the Executive sweeping powers in the matter of judicial appointments.

Therefore the independence of the judiciary is the independence of the exercise of the

functions by the judges in an unbiased manner i.e. free from any external factor.

Further to submit that ‘Shetreet’ in his work tries to explain the words “Independence” and

“Judiciary” separately, and says that the judiciary is “the organ of the government not

forming a part of the executive or the legislative, which is not subject to personal,

substantive and collective control, and which performs the primary function of

adjudication”.6

THAT in view of the averments stated above, it appears from perusal of the new act that, some

of the provisions are violating the basic structure of the constitution by allowing interference of

Executive and Legislative body in procedure of appointment of the judges.

1.1 Provisions of the said act such as section 6(7) (Particularly interference of Chief Minister

being executive body), 12(e), 13 allowing legislative and executive bodies to interfere in

appointment of judges are not tenable Constitutional law.

6 http://mulnivasiorganiser.bamcef.org/?p=482 by ATIN KUMAR DAS LL.M Ist YEAR.NATIONAL LAW

INSTITUTE UNIVERSITY BHOPAL

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IT IS MOST RESPECTFULLY SHEWETH;

THAT Section 6(7) may be read;

‘The Commission shall elicit in writing the views of the Governor and the Chief Minister of

the State concerned before making such recommendation in such manner as may be specified

by regulations.’

THAT according to Article 217 of the Constitution of Indiana Governor’s view in appointment

of High Court Judges is legally valid, but view of Chief Minister of the concerned state and

consideration of his views or of any Minister has never been a part of Constitution because

ministers are the executors of Law made the Parliament.

THAT executive are always kept separate from the functions of the Judiciary so as to achieve

very purpose the Constitution i.e. Separation of Power and Independency of Judiciary.

THAT insertion of clause 6(7), which allows commission to consider the views of Chief

Minister of the concerned state, in the new law, violates the constitutional purpose of

Independency of Judiciary by adding in the view of Executives in the appointment of Judges.

MOREOVER it Petitioner humbly submitted that; Section 12(e);

The Commission may, by notification in the Official Gazette, make regulations consistent with

this Act, and the rules made there under, to carry out the provisions of this Act.

(e) The manner of eliciting views of the Governor and the Chief Minister under sub-section (7)

of section 6;

THAT by perusal of the abovementioned clause of the new law of NJAC, regulations and

criteria for suitability, conditions and selection grounds is to be set by the commission for

appointment of judges.

15

THAT for the said regulations and criteria of suitability also, the Chief Minister of the

concerned state is to be consulted. With reference to earlier averments, such clause is violative

of independency of judiciary thereby violating basic structure of the constitution.

THAT it appears from the perusal of the new law that, section 12(e) is completely usurper and

interloper.

THAT the scheme of the original constitution never envisaged that, for framing the regulation

and norms of appointment of judges, the Chief Minister might be consulted or accepted any

view from, because functions and work is aptly distributed among three wings of the system.

No need arises for the eliciting views from Ministers for framing the criteria of suitability or

any other norms, as mentioned in the new law.

THAT said provision of law, interfering in judicial aspects, is not tenable and maintainable

under constitutional law of Indiana.

In furtherance of arguments of the petitioner Section 13 and most relevant lines of new law

may be appreciated and may be read as;

Every rule and regulation made under this Act shall be laid… before each House of

Parliament… both Houses agree in making any modification in the rule or regulation or both

Houses agree that the rule or regulation should not be made… thereafter have effect only in

such modified form or be of no effect, as the case may be…

By perusal of this provision of NJAC the Petitioner most respectfully submits;

THAT any rule proposed to be mad under this law shall have to have prior assent of the law

makers, in absence of which, any change made cannot be implemented.

THAT by this provision, it appears that the law makers are eyeing to take away the power from

the authority to which it was originally vested by the Constitution. If, the changes are made

without their consent, it shall have no validity.

16

THAT it appears form section 13 law makers i.e. parliamentary authorities, by surpassing the

powers vested to them, have made a law which is not acceptable to the petitioner because such

provisions are against the scheme of the original constitution.

THAT judicial independence has to be seen with the changing dimension of the society.

Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real

purpose of setting up of the institution of judiciary.

In support of the above averment of the petitioner, it s humbly submitted that, only president is

given power, in only consultation with Chief Justice of Supreme and High Courts, as per the

original constitution. No where Parliament is involved or mentioned for appointment of judges.

THAT in so far as rule making regarding criteria and eligibility is concerned, the parliament

can never be construed to be the authority the way new law is expecting. Referred provision is

seizing the power originally vested to the president. Having said that, the petitioner humbly

submits;

THAT the terms such as IN CONSULTATION WITH & MAY DEEM NECESSARY is used

for the presidential power in the appointment of judges. Thus, it is deemed to be understood

that such discretionary words allows and permits president for framing the appropriate rule and

norms for appointment of judges.

THAT the said provision of law violates the Independency of judiciary thereby violating the

basic structure of the Constitution of Indiana.

THAT by perusal of last line of quotation of the said law, as mentioned earlier in the written

submission, it appears by the word that, ‘the rule or regulation shall thereafter have effect only

in such modified form or be of no effect’ powers are vested to law makers only and given

omnipotence. Their words shall be binding on the judiciary and rules and regulations, for

appointment, shall be deemed to be final.

17

THAT with reference to the above averment, petitioner strongly opposes section 13 which

violates the basic tenet of separation of power of the said constitution and is Suggestio falsi and

suppression very.

18

2. Whether interpretation of second and third judges case, giving birth to a collegium

system, is constitutionally valid and convincing or not?

IT IS MOST HUMBLY AND RESPECTFULLY SHEWETH

THAT in the First judge’s case7, of seven judges bench, where the meaning of ‘Consultation’

was interpreted in quite decent manner by stating that, the word Consultation does not mean

‘Concurrence’. Subsequently, in 1993, by nine judge’s bench, the judiciary was given decisive

authority to fill vacancy in the judiciary. The said judgment is known as Second judge’s case8

where in collegium system was given birth to. The said judgment not only overruled first

judge’s case but also devised a specific procedure for appointment of judges in the Supreme

Court and High Court with a view to ‘protect and guard independency of judiciary’. For the

same reason, primacy to Chief Justice was held to be inquisitive. Third judge’s case by

reaffirming the second judge’s case, framed a larger consortium of four senior most judges,

thereby directing two more judges to opine in the matter relating to appointment of judges of

Supreme Court and High courts.

THAT it is most respectfully submitted that, none of the Constitutions of the Commonwealth

countries, nor the Constitution of U.S.A. (not even the Swiss and Japanese Constitutions),

provides for “consultation” with the head of the judiciary or any other member of the judiciary

in the matter of appointment of Judges. Only our Constitution does – and it could not have

been without a purpose.9

THAT by perusal of Second and Third judge’s case it appears that role of the executives

became merely formal and while doing so the Supreme Court bench had traversed beyond

legislative intent of the framers of the Constitution.

7 S.P Gupta Vs. Union of India (AIR 1982 SC 149) 8 Advocate on Record Association Vs. Union of India (1993 (4) SCC 441)

9 file:///C:/Users/ubi/Desktop/NJAC%20Links/PROCEDURE%20OF%20APPOINTMENT%20OF%20THE.html

on June 10, 2015 3:30pm

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THAT meaning of Consultation, as envisaged by the original constitution, has been interpreted

wrongly and judges are given omnipotent authority in selection of judges. It has been a matter

of fact that, newly recruited judicial personal shall plan his future keeping in mind the person

who matters for his recommendation for elevation.

THAT by Second and Third judges case judges are given powers to appoint and transfer

judges, without any criteria of selection and/or elevation, by going beyond Article 124 of the

said constitution.

THAT 1993 and 1998 judgment and its bench, by giving system of judges will appoint judges,

travelled beyond their jurisdiction and overlooked art.124 and constitutional purpose by

giving Chief Justice a discretionary authority and thus, this system of judges will appoint

judges, through Second and Third judge’s case, without any accountability to the president and

in absence of guidelines and eligibility criteria, it is constitutionally fallacious and erroneous.

2.1 Perusal of article 124(2) of the Constitution of Indiana prior to this amendment may be

read,

“EVERY JUDGE OF THE SUPREME COURT SHALL BE APPOINTED BY THE

PRESIDENT BY WARRANT UNDER HIS HAND AND SEAL AFTER CONSULTATION

WITH SUCH OF THE JUDGES OF THE SUPREME COURT AND HIGH COURTS IN

THE STATES AS “THE PRESIDENT ‘MAY’ ” DEEM NECESSARY FOR THE

PURPOSE…IN THE CASE OF APPOINTMENT OF A JUDGE OTHER THAN THE CHIEF

JUSTICE OF INDIANA SHALL ALWAYS BE CONSULTED…”

IT IS MOST HUMBLY AND RESPECTFULLY SHEWETH;

THAT Article 124 gives clout of appointment of judicial personals in the hands of President.

Original Constitution never mentioned the system collegium of the judges, on the contrarily,

only consultative powers are vested with brethren judges. It was 1993 judgment wherein false

20

and unconstitutional interpretation was rendered negligently. As a result, the recent issues have

taken place.

THAT the averment of the petitioner is not merely with regards to who is supreme amongst

three wings, rather his averments are to bring to the notice of this Hon’ble bench what the

Constitution says and what are the interpretations made by the judiciary in 1993 and 1998

cases, because it was never the purpose of Constitution to indicate who is supreme and who is

not.

THAT the term CONSULTATION was interpreted wrongly by SCORA 1993 Nine Judges

bench where in the theory of ‘Judges will appoint Judges’ was introduced by surpassing the

relevant provision. The said theory was outcome of wrong and arbitrary interpretation of the

said article without realizing the actual purpose of appointment of judges, thereby, failing to

achieve Constitutional purpose. Appointing judges can never be a judicial function. The law

makers never thought that judges will appoint judges. It was only 1993 judgment by which the

apex court gave itself, power to appoint judges. (Annexure19 page 77)

THAT the term Consultation has been added by the framers of the Constitution because,

colleagues of the Judge or Lawyer, who is being considered by president for Elevation or

Appointment as a judge, are best persons to accept view from. Further, they can surely

understand capacity of candidates and way of working and knowledge in the subject matter.

THAT such term Consultation has been interpreted wrongly and power of concurrence, in

second judges case, has been erroneously vested to the Chief Justice of India and Chief justice

of respective High Courts.

THAT the collegium system of judicial appointment, which remained in vogue since the

decision of Supreme Court of India in Supreme Court Advocate on Record Association vs.

Union of India reported as (1993) 4 SCC 44110

could be aptly described as ‘judicial coup of

power’ from the executive contrary to the original constitutional scheme through the process of

10 Supra note 3

21

interpretation (one can refer Arohan Barack’s Purposive Interpretativism), where Supreme

Court of Indiana read and attributed meaning to the word ‘Consultation’ as ‘Concurrence’.11

THAT these judgments are rendered with patent disregard of legislative history and intent in

arriving at the conclusion that the consultation means concurrence.

In Mahesh Chandra Gupta v. Union of India12

the SC had itself held that the appointment of a

judge is an executive function of the President (even the smallest discretion in the exercise of

this function, however, was wrestled away by the Court in the earlier Second Judges case).

THAT in the matter of Union of India Vs. Sankal Chand Himatlal13

Seth the Supreme Court

was absolutely right rendering interpretation that, Consultation does not mean Concurrence and

held that, the opinion of the chief justice in making transfers was not binding on the executive.

This decision was partially affirmed by Seven Judges bench in S.P Gupta, the First judge’s

case and subsequently the situation was exactly altered by rendering Second Judges case,

which has been proven to be a failure today.

THAT the arrogation of power to the collegium which comprises of the CJI and four senior

most judges of the Supreme Court dilutes the effect of individual consultation of the President

of India with such other judges as he may deem necessary.14

THAT interpretation of the word ‘THE PRESIDENT MAY’, bearing exorbitantly high

weightage, which gives discretionary authority of appointment of judges exclusively to the

president, has been divested from the interpretation of Second and Third Judges case and

thereby arbitrarily giving birth to collegium of four senior most judges.

11 http://onelawstreet.com/2015/04/of-reference-to-larger-bench-and-njac-challenge-petition-some-points-for-

consideration/ by RAVI PRAKASH APRIL 15, 2015 12 (2009) 8 SCC 273 13 (1997) SCC (4) 193 14

http://lawmantra.co.in/aiba-seeks-presidential-reference-on-controversial-collegium-and-njac-issues-as-

appointment-of-at-least-125-judges-for-various-high-courts-is-hanging-fire/ by Dr. Adish Agrawal Sr. Advocate

President AIBA

22

THAT the president, according to scheme of the original constitution, required to weigh all

views while arriving at the decision of appointment, but the second and third judges case

obliterates the importance given to the president and plurality of the views.

THAT under the original Constitution of Indiana, the President was empowered to ‘consult’

judges of the Supreme Court to arrive at a decision of appointment. This has been given a go-

bye by the 1993 judgment, violating the doctrine of separation of powers among the three

organs, viz executive, judiciary and legislature thereby violating constitutional provision

Article 124(2) of the said constitution. The petitioner strongly feels that vesting absolute power

on the CJI and the collegium in the matter of appointments for all times to come needs

reconsideration to restore the equilibrium in the Constitution.15

THAT the crux of the present debate before the court is that if it has already been held that the

exclusion of an executive voice, as a matter of convention, in the matter of appointment is the

only way to maintain the independence of the judiciary (which is part of the basic structure),

the 99th amendment is void for violating the basic structure of the Constitution of Indiana.

16

THAT 1993 and 1998 judgment and its bench, by giving system of judges will appoint judges,

has travelled beyond their jurisdiction and overlooked art.124 and its constitutional purpose by

giving Chief Justice an omnipotent authority.

Be that as it may, there is a more serious objection going to the root of matter, and which, by

itself, is sufficient to render the decision in the Second Judges case, and the collegium system

of judicial appointments introduced by it, constitutionally invalid.17

THAT Hon’ble Justice Ahmadi in his dissenting opinion in the Second Judges case (at

paragraph 395, 403) argued that the original intent of the framers did not support an

15

Ibid 16

Ibid 17 http://www.lawyersupdate.co.in/LU/1/1591.asp By N.h Hingorani, Senior Advocate Supreme Court of India

23

interpretation of the constitution that conferred primacy on the Chief Justice and that such a

change would require a constitutional amendment.18

THAT ‘may be recalled that the Second Judges case came before the Supreme Court by way of

a reference from the three-judge bench in Subhash Sharma v. Union of India19

. The three

judges referred two questions for examination by such Bench, namely:

(i) whether the Chief Justice of India was to be accorded primacy in the matter of judicial

appointments; and

(ii) whether or not the fixation of the strength of judges was justiciable. Although the referring

judgment in Subhash Sharma's case formulated only the aforesaid two questions for

consideration of the Bench in the Second Judges case, the Bench expanded the scope of the

referral by framing additional questions, notwithstanding that the pleadings and arguments

were limited to the two questions.’20

THAT Ahmadi J., in his dissenting judgment, expressed the view that the decision of the

Bench on these additional questions was merely obiter dicta.21

Conventional Law and its validity

THAT in the collegium system, so far, judges, by recommending the name of the colleague

used to appoint the judge. The system of judges will appoint judges, without a constitutional

backup, started becoming a convention and that, appears by perusal of Art. 124, to be invalid.

THAT “in paragraphs 469 and 470 of Second Judges case, the Court found that by 1948, a

convention had been established that the appointment of a judge could only be made with the

18 https://indconlawphil.wordpress.com/2015/06/09/guest-post-the-njac-and-an-unconventional-constitutional-convention/ by Akil Deo on June 9, 2015 @9:42AM 19

AIR 1991 SC 631 20

Supra note 12 By n.H Hingorani, Sr. Advocate Supreme Court of India 21 dissenting judgment of Ahmadi J. dated August 24, 1993

24

concurrence of the Chief Justice. Further, it found that almost all subsequent appointments

were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three

step test in determining the existence of a convention – i.e.,

(i) the availability of precedents,

(ii) that the actors feel bound by the rule and

(iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph

474);

“…the convention, to the effect that the opinion and the recommendation of the Chief Justice of

India in the matter of appointment of Judges is binding on the executive…”

THAT the convention in the second judge’s case was unconventional insofar as it was held to

be binding, because constitutional conventions are ordinarily regarded as not being enforceable

in Court. Only precedents are binding.”22

2.2 Section 7 read with section 5 & 6, are giving no adherence to Article 124 of the said

Constitution.

The Petitioner most respectfully submits;

THAT by perusal of Article 124 of the said Constitution discretionary authority, for

appointment of the judges of Supreme Court and high court, is vested with the President.

THAT the said amendment act is going against the constitutional provisions which can be

proven by stating that; in one of the sections, that, (Section 7) may be read;

The President SHALL, on the recommendations made by the Commission, appoint the Chief

Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a

High Court or the Judge of a High Court;

22 Ibid

25

THAT if, the collegium was to be criticized allegedly curtailing the president’s power in

appointing judges, the NJAC is no better.

THAT neither the question of primacy or supremacy of law makers and legislatures nor finality

of their words arises but the question mark is on the validity of Section 7 of the said Act.

THAT it appears, from the perusal of the said provision that, said provision has failed to

achieve and comply with the intention of the framers of Constitution and by overruling and

circumscribing Article 124 of the Constitution of Indiana.

THAT the power of the president is completely circumscribed under the new law which says

that the President SHALL accept, by putting compulsion, to the recommendation made by the

commission. Moreover this is to submit,

THAT such compulsive clause of the referred act is violating the powers, originally, vested to

the president by the Constitution of Indiana.

THAT section 7 by giving no room to Article 124 and the powers of president are hindered,

which, in the eyes of law of Indiana, is not tenable.

Moreover the petitioner humbly submits that;

“PROVIDED THAT THE PRESIDENT MAY, IF CONSIDERS NECESSARY, REQUIRE

THE COMMISSION TO RECONSIDER, EITHER GENERALLY OR OTHERWISE, THE

RECOMMENDATION MADE BY IT PROVIDED FURTHER THAT IF THE

COMMISSION MAKES UNANIMOUS RECOMMENDATION AFTER

RECONSIDERATION, THE PRESIDENT SHALL MAKE APPOINTMENT

ACCORDINGLY.”

26

THAT the reconsideration of such recommendation of the commission shall be deemed to be

final as per para 3 of the said section because once the recommendation is advised for

reconsideration and, if, such reconsideration is correct in the eyes of the commission, the

President, by perusal of the relevant para of section 7, is bound to appoint the judge.

THAT it appears from perusal of the said lines that, authority vested to the president by

original constitutional scheme is not looked at in NJAC and the efforts are being made with a

view to grab powers from the president.

THAT finality is given to the words of the commission which goes against the constitution also

traversed to article 124 of the original constitution.

THAT according to the original constitution article 124 lays down that, President may, as he

may deem fit for the purpose, appoint the judge. Contrarily, the new act says that, President is

bound to accept the recommendations, even after r-consideration and accordingly the judges

are bound to be appointed by president.

THAT said provision of new law is not acceptable to the petitioner, as it goes against the

intention of article 124 of Constitution of Indiana.

THUS in view of argument advanced above, the petitioner strongly objects Section 7 of the

National Judicial Appointment Commission which categorically moves beyond original intent

of Constitution of Indiana.

27

3. Criteria for appointment of judges should be set by prioritizing its framework.

When work of god was overburdened he created Judge

In view of the above statement Petitioner most humbly and respectfully submits;

THAT the members of Judiciary, of any country, are people with great repute and values. It

becomes an obligatory duty of the state to ensure their dignity.

THAT Indiana is a country where judges are believed to be not less than God or the almighty

on earth and, with high respect and expectations of proper justice people approach courts of

Law.

THAT in the country like Indiana the appointment of judges and relevant proviso has been a

matter of controversy due to its erroneous and false interpretation in considerably long time.

THAT it is matter of great importance for this country to have uninterrupted and independent

judiciary. The said stage is essential for smooth and unwrinkled functioning of nation.

THAT the history has witnessed the fact that, there has never been any sort of regulations,

norms, conditions, criteria of suitability, or procedure for appointment of judges like other

common law countries. This has given a room to corruption in the judicial system due to

judicial decisions like 1993 and 1998 where judges themselves were given powers to brethrens

for elevations and appointments.

THAT in recent past, media and some of the judges has been a platform for showcasing

conduct of corruption and illicit behaviors of judges.

THAT sole reason behind aforesaid events taking place in, absence of appropriate

constitutionally approved guidelines for appointment of judges. The said guidelines will be a

28

substantial support to president for appointment of appropriate judges with clear history, their

performance and work in the judicial system.

IF PAST WAS A MISTAKE, FUTURE IS AN OPPORTUNITY TO CORRECT IT

In view of the above statement Petitioner humbly submits;

THAT the act itself, in many of the sections, it has been categorically indicated that criteria of

suitability, qualifications and other guidelines for appointment by notification will be set. By

prioritizing the qualifying criteria first appointments should be made. Appropriate guidelines

may be notified as envisaged by Article 124.

Further National Judicial Appointment Commission Section 6(1) for appointment of high court

Judge, transfer rules Section 9, Section 10(1) (Powers and Procedures for discharge of NJAC),

Supreme Court Judges- Section 12(2)(a) Criteria of Suitability read with section 5(2) and

12(2)(b) other procedure and Condition for Selection and Appointment of Judges of Supreme

Court, read with section 5(3),

High Court Judges- Section 12(2)(c) the criteria of suitability with respect to appointment of a

Judge of the High Court read with section 6(3)

Section 12(2)(f) other procedure and conditions for selection and appointment of a Judge of the

High Court read with Section 6(8).

With a view to assist the Hon’ble bench, keeping in mind utmost dignity, Petitioner most

humbly and respectfully submits some of the observations, of other common law countries and

their criteria and process of appointment of judges, are enclosed as annexure 22, 23, 24.

29

THAT annexure 24 page 117 and Standards on page 125 which talks about the process of

appointment of judges in some foreign countries: The United State. Part 5 of which sets out

judicial selection standards.

Such as Experience, Integrity, Professional Competence, Judicial temperament and service to

the law and contribution to effective administration of justice. It may be observed in detail.

Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real

purpose of setting up of the institution of judiciary.

The recent development in this regard is the recommendation of the Law Commission for the

inclusion of a whistleblower provision, aimed at protecting those making complaints against

judges, in a draft bill dealing with the removal of judges of the Supreme Court and High

Courts. Introduction of such a bill by the Law Commission is a major step in the direction of

making changes to the rigid procedure in our constitution for the removing of the judges of the

Supreme Court and the High Courts.

30

4. Whether the bench is vested with Constitutional validity to adjudicate the

controversy of Conflict of Interest of Collegium - NJAC or not?

IT IS MOST HUMBLY AND RESPECTFULLY SHEWETH;

THAT in any event, every act or omission of any constitutional authority is subject to judicial

review, which has been long recognized as a basic feature of our Constitution.23

THAT Nine Judges bench judgment, forming a collegium has practically proven to be invalid,

particularly due to lack of guidelines for appointment of the Supreme Court and High Court

Judges.

THAT this decision was followed by 1998 third judges case affirming and strengthening the

second judges judgment whereby formulating larger collegium of judges of 4 and 2 for

Supreme Court and High Court Judge respectively.

It is a cardinal rule of the administration of justice that any decision made in ignorance of or

overlooking any statutory provision or binding authority or characterized by lack of due regard

to legal principles is a judgment delivered per incuriam and has no binding force.

THUS for reviving back the power of appointment to president, as per original scheme, by

formulating guidelines, as pleaded, the matter may be referred to larger bench with a view that,

the second judges case can be given end and judges can be appointed through the original

constitution.

THAT Under Part V Chapter IV Article 137 of the Constitution of Indiana as;

‘Review of judgments or orders by the Supreme Court Subject to the provisions of any law

made by Parliament or any rules made under Article 145, the Supreme Court shall have power

to review any judgment pronounced or order made by it.’

23 http://www.lawyersupdate.co.in/LU/1/1591.asp H.K Hingorani Senior Advocate Supreme court of India

31

THAT Matter may be referred to larger bench under article 137 so that the issue can be settled

for once and for all and 1993 and 1998 cases may be overruled and nullified by setting new

guidelines and eligibility criteria for appointing judges.

As a matter of practice, convention backed by the theory of precedent, such division bench

refers the matter to constitute larger bench normally in two set of circumstances:

1. When a substantial question of law as to the interpretation of Constitution arises; or

2. When there is apparent conflict in the ratio laid down by the equal strength of benches of

the Supreme Court of India on the same point of law/ legal issues.

However, there is no policy/guidelines/framework available in the public domain as how these

matter referred to larger bench would get listed for final hearing and when the appropriate

bench would be constituted by the Supreme Court of India. It is purely in the administrative

domain of the Chief Justice of India to constitute such larger bench and list the matter for

hearing.

THAT the bench may kindly appreciate that,

in the matter of Rohtas Bhankhar vs. Union of India24

which got finally decided by a

Constitution Bench on 15 July 2014 by a bench headed by then Chief Justice R.M. Lodha.

However, the petition was referred by a bench of three judges to the Constitution Bench by an

order passed long before on 2 December 1999. As a matter of fact, that finally gets decided

under the stewardship of then Chief Justice of Indiana.25

THAT in the matter of State of Karnataka vs. Uma Devi26

has been doubted and the matter

has been referred to larger bench by an order dated 14 March 2011 by the division bench of the

Supreme Court of India.

24

Rohtas Bhankhar vs. Union of India (2014) 8 SCC 872 25

http://onelawstreet.com/2015/04/of-reference-to-larger-bench-and-njac-challenge-petition-some-points-for-consideration/ By RAVI PRAKASH ·APRIL 15, 2015

26 State of Karnataka vs. Uma Devi (2006) 4 SCC 1

32

THAT Petitioner strongly feels that it would be desirable if the President of India seeks

Advisory opinion through a Reference so that the apex court would be bound to refer the issue

to a larger Bench.

THAT this intervention through a Reference will go a long way in saving the nation.

33

Interim Relief Prayed

Stay order may be granted on operation of the said act as, certain provisions such as Section 7

which violate article 124, 217 & Section 13 violates Article 50 i.e. independency of judiciary,

the basic structure of the constitution of Indiana and also as, the said act is under challenge

before this Hon’ble bench.

34

Prayer

In view of issues raised, argument advanced and proposals made in the submission of the

petitioner most humbly and respectfully pray;

Honorable Court may adjudge and declare that;

1. Fresh guidelines and regulations may, by giving priority, such as merit, ability and other

criteria of suitability for appointment of the judges, be set under section 12 of the NJAC

by this bench.

1.1 With a view to assist the court for framing the proposed guidelines, the petitioner most

respectfully submits some of the observation of judicial appointment of other common

law countries like USA, Canada and Australia. The bench may be pleased to consider.

2. Section 6(7) (Particularly interference of Chief Minister being executive body) , 7, 12 (e),

13 may be struck down, as, is usurper and bad in law and the said provisions are violating

article 50, which guarantees independent judiciary, and separation of power thereby

violating basic structure of the constitution of Indiana.

2.1 The issue of striking down certain provisions of the said act may be referred to a larger

bench having appropriate jurisdiction as envisaged by Article 137 and 145(3) of the

constitution wherein the judges may be pleased to review the 1993 and 1998 judgments

by which article 124 and 217 are interpreted wrongly.

The court may also be pleased to pass any other order, which this Honorable Court may

deem fit in light of justice, equity and good conscience.

For this act of kindness the Petitioner shall as duty bound ever humbly pray.

35

Verification cum Affidavit

The petitioner, Dhruvraj R. Bhavsar, Adult, Male, here with declare that above termed averments

are within best knowledge and belief of the Petitioner. The Petitioner solemnly says that

arguments and prayer from page 1 to 29 are true and said to be believed to be true in the eyes of

law of Indiana. The said content is true.

Deponent

Petitioner

Dhruvraj R. Bhavsar

Sd/-

___________________